Freedom of Association and the Right to Collective Bargaining
This chapter considers the first of thefour core labor standards, freedom of association and effective recognition of the right to collective bargaining. The committee focuses on issues that have emerged in ILO treatment of Conventions No. 87 and No. 98, and in the 1998 Declaration on Fundamental Principles and Rights at Work, amplifying particularly difficult, controversial, or novel questions based on its definitions. The chapter begins with a discussion of the complexities and challenges of defining freedom of association and effective recognition of the right to collective bargaining. It then turns to assessing a country’s compliance using the three sets of indicators in the committee’s template: legal framework, government performance, and overall outcomes. The chapter then looks at the principal sources of information for monitoring compliance with this standard. The last section presents the committee’s conclusions and recommendations on assessing compliance and sources of information.
As discussed in Chapter 1, a setting in which there is democracy, freedom of opinion and expression, and respect for civil liberties—including the right of assembly—is crucial for the exercise of freedom of association and effective recognition of the right to collective bargaining.
A system for assessing compliance with freedom of association must examine several components. The three most central are freedom of asso-
ciation, 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
nition. 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.
(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.
The committee’s template to evaluating a state’s compliance with freedom of association and effective recognition of the right to collective bargaining requires examination of three categories of indicators:
the legal framework (at all levels of government),
the government’s performance (at all levels of government) in implementation, and
the overall outcomes.
An assessment must begin with an examination of the content of labor laws on organizing, bargaining, and engaging in strikes. Some analysts first determine whether a given country has ratified Conventions No. 87 and No. 98. But the use of ILO ratifications as an indicator of respect for workers’ freedom of association is fraught with problems. Many countries widely considered to violate labor rights in serious ways have duly ratified the two conventions, while other countries widely considered as having better records have not.
Turning to national laws, it may be possible to determine with relative ease whether the legal system affords freedom of association to workers. Laws that require workers to become members of government-run federations, that place extensive prohibitions on bargaining, or that ban strikes altogether or in “essential” industries so as to support a particular national economic policy are markers of a lack of commitment to freedom of association and the right to collective bargaining.
For many countries, the inspection of its laws and regulations would
immediately reveal that the legal framework does not meet the principle embodied in Convention No. 87, that:
… all workers and employers, without any distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing.
Many laws exclude agricultural workers, for example, from freedom of association and collective bargaining rights, and some countries restrict or prohibit public sector workers from organizing or collective bargaining. Some countries exclude domestic workers or other workers who do not work under contracts of employment.4
Most countries’ laws are a mix; some features comply with freedom of association standards and some do not. For example, Compa (2002, p. 12) notes:
U.S. law forbids discrimination against workers because of union activity, a sine qua non for protection of the right to organize. However, U.S. law also excludes from coverage large segments of the labor force—agricultural workers, domestic workers, low-level supervisors, and “independent contractors” who are really dependent on one employer for their livelihoods. The National Labor Relations Act excludes about twenty million private sector workers. These workers can be fired for union activity with impunity. In twenty-seven U.S. states, collective bargaining by public employees is prohibited. On its face, this is a clear violation of the right to bargain collectively. But the situation is multifaceted. The First Amendment protects public employees’ rights of association, prohibiting their discharge for union activity. It also guarantees their right “to petition the government for a redress of grievances.” In many states that prohibit collective bargaining, public employees form unions and “bargain” their terms and conditions of employment with the legislature through the political process.
Spain’s constitution and labor laws permit the right to organize and to strike, but the country’s immigration law takes away these rights for undocumented workers. South Korea’s labor regulations include many restrictions on the ability to organize and the ability to strike.
Once the assessment of compliance moves beyond a threshold of “easy” analysis of labor law texts for obvious conflicts with guarantees of freedom of association and right to collective bargaining, increasingly complicated issues arise. These issues include possible legal restrictions on the ability of workers to organize (by category of workers, such as civil servants or workers without contracts of employment, or by sector such as in agriculture). Some countries’ laws may make distinctions or discriminate in the right to organize (excluding, for example, legal migrant workers). National laws may also restrict the right to collective bargaining—by category of worker, by sector, or by the subject of bargaining (such as exclusion of some issues). Laws may permit government interference, for example, by allowing the government to dissolve unions without legal recourse, to impose burden-some union registration procedures, limit the formation of national unions, prohibit or limit multiple unions within a single plant (including minority unions),5 or restrict who may serve as a union member, official, or adviser.6
National laws and constitutions may restrict unions’ political activities, either by establishing close relationships between unions and political parties (at one extreme) or by prohibiting union contributions to parties and candidates (at the other).7
Other legal provisions might forbid certain kinds of strikes (such as
“sympathy strikes” or “protest strikes”) or strikes under certain conditions (such as during an “economic crisis”).8 Some laws limit actions associated with strikes (such as picketing or occupation of the workplace),9 while other laws may allow employers to fire striking workers and to hire permanent replacements.10 Yet other laws may restrict union members’ rights to ratify or reject agreements negotiated by their leaders.11 Finally, legal provisions may limit the formation of worker-advocate NGOs, or the participation of external union representatives, worker-oriented NGOs, or compliance monitors in investigating and reporting on labor practices. In assessing these complex aspects of a nation’s legal framework, an assessor must decide whether simply to follow ILO jurisprudence as far as it goes or to move beyond ILO jurisprudence on issues that are more contentious and less settled.
The committee generally followed ILO interpretations in developing its indicators for assessing compliance (International Labour Organization,
1994, 1996; Tajgman and Curtis, 2000). These 21 indicators are a partial—but by no means exhaustive—checklist for evaluating a country’s legal framework relating to freedom of association and effective recognition of the right to collective bargaining, including the related issue of right to strike:
A-1. whether the country has ratified ILO Convention No. 87;
A-2. whether there are legal provisions that entitle workers or employers to establish and join organizations of their own choosing without previous authorization;
A-3. the extent to which there are legal restrictions on the ability of certain categories of workers to organize (such as civil servants, teachers, or workers without contracts of employment), and numbers of workers in each such category;
A-4. whether there are certain sectors where there is no right to organize (such as in export processing zones or in other tradable sectors or in agricultural and informal sectors);
A-5. whether there are other forms of distinction or discrimination in right to organize, such as race, nationality, sex, opinion, political affiliation, or citizenship (for example, excluding legal immigrants);
A-6. whether there are legal provisions that permit the government to interfere in freedom of association by workers or employers;
A-7. whether there are legal restrictions on political activities of unions or employers’ organizations, either by establishing a close relationship between trade union organizations and political parties, or by prohibiting all political activities for trade unions (including making financial contributions to a political party or candidate);
A-8. whether national laws protect workers from discrimination if they join a union or participate in union activities;
A-9. whether the country has ratified Convention No. 98;
A-10. whether collective bargaining is protected in law;
A-11. whether there are legal restrictions on the mechanism of collective bargaining (such as the mandatory exclusion of some issues or the ability of employers to refuse to bargain with a recognized union);
A-12. the extent to which there are categories of workers not permitted to negotiate a collective bargaining agreement (such as civil servants, teachers, or workers in special activities), and numbers of workers in each such category;
A-13. whether there are certain sectors where there is no right to nego-
tiate a collective bargaining agreement (such as in export processing zones or in other tradable sectors, or in agricultural and informal sectors);
A-14. whether the principle of a strike as a means of action of organizations is generally recognized;
A-15. the extent to which the government can forbid certain kinds of strikes (such as “protest strikes,” “sympathy strikes,” “go slow” strikes, or “work-to-rule” slowdowns), or strikes under certain conditions (such as economic or political “crisis”), or strikes requiring a majority of workers involved to authorize a strike;
A-16. the extent to which the government can limit picketing or occupation of the workplace;
A-17. whether legal regulations ban employer lockouts;
A-18. whether workers are legally able to ratify or reject agreements reached by union leaders;
A-19. whether legal regulations permit employers to dismiss striking workers, or permit hiring of permanent strike replacement workers;
A-20. assessment of extent to which “right to work” laws or other “free rider” provisions undermine the ability of workers to organize and the extent to which laws require workers to join a given trade union as a condition of employment or that new workers be hired through a given trade union; and
A-21. whether workers’ and employers’ organizations may legally affiliate with international bodies.
The task of assessing a government’s performance in implementation of freedom of association and effective recognition of the right to collective bargaining requires investigation of both the level of effort a government devotes to this objective and the effectiveness of the process. Effort and effectiveness depend on the magnitude of resources available to the government and the urgency of competing claims on those resources. The assessment involves an appraisal both of inputs and of outcomes.
Assessing compliance begins with investigating a government’s performance in enforcement. This assessment involves whether, and how often, union organizers are jailed, exiled, fired, or murdered without prompt and effective prosecution. It also considers whether and how often there is retaliation against strikers, and, if so, whether the government promptly and effectively prosecutes such retaliation. Other issues to consider are possible
defects in the complaint process (such as excessive delays or expenses or light punishments) and whether the government enforces freedom of association and collective bargaining laws uniformly across all sectors and areas (including the farm sector and informal employment and export processing zones). Assessing government performance also requires scrutiny of the extent of labor-related corruption (such as control of unions by criminal figures) and the likelihood of prosecution. The assessment also involves examination of the independence of the judiciary in handling labor cases. Finally, it is necessary to examine whether trade unions are independent of control by the government or political parties and the ability of trade unions to influence public policy, such as through contributions to parties or candidates.
Assessing a government’s performance cannot be limited to enforcement but should also include the positive agenda. As the ILO and other organizations frequently point out, ensuring observance of core labor standards has a proactive, educational, and facilitative dimension (International Labour Organization, 2000a, 2000b). Many workers do not know what their rights are or how they might pursue them. They may not even understand the concepts of freedom of association and collective bargaining. They might not know where to seek assistance.
The positive agenda of promoting compliance includes governmental efforts and effectiveness in educating workers about their rights and remedies, in building capacity for government officials with responsibility for labor matters at the federal, state or provincial, and municipal levels, and in facilitating dissemination of best practices in workplace cooperation, through unions, employer groups, labor-management organizations, labor-oriented NGOs, and what the ILO calls tripartite social dialogue (International Labour Organization, 2002). Such dissemination includes encouraging the use of domestic and international channels about problems, difficulties, or violations of freedom of association and right to collective bargaining (such as submission of “Observations” by workers’ and employers’ groups to the Review of Annual Reports under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work).
Finally, the assessment of government performance must consider the sheer magnitude of resources devoted to compliance with freedom of association and effective recognition of the right to collective bargaining. This assessment involves the adequacy of budgets and personnel assigned to departments with responsibility for labor regulation in comparison with the number of workplaces, adjusted for per capita gross domestic product
(GDP), the caseloads of labor administrative bodies and labor courts, and the frequency of labor inspections of workplaces. As indicated above, the level of development and the competing needs faced by a government will limit the amount of resources that might be able to be devoted to enforcing compliance with core labor standards.
The committee proposes 13 indicators—an extensive but, again, by no means exhaustive list—for assessing a country’s performance in implementing freedom of association and effective recognition of the right to collective bargaining, including the related issue of right to strike:
B-1. the extent to which union organizers are jailed or exiled by the government, or fired, injured, or murdered without prompt and effective prosecution on the part of the government;
B-2. the extent to which strikers suffer retaliation without prompt and effective prosecution on the part of the government;
B-3. whether there are defects in the government’s complaint process, such as excessive delays or expenses, light penalties, or nonpunishment of offenders;
B-4. the extent to which the government interferes in freedom of association (e.g., by declaration of martial law, “state of crisis,” or by suspension or dissolution of associations by administrative authority);
B-5. the independence of trade unions from political control;
B-6. the ability of trade unions to provide support for political parties and candidates;
B-7. government actions to combat labor-related corruption (such as control of unions by criminal figures for use as a protection racket or for financial skimming) without prompt and effective prosecution;
B-8. the adequacy of personnel and budgets of labor regulation departments compared to number of workplaces, the frequency and adequacy of labor inspections, the caseloads of labor administrative bodies and labor court, and whether bribes are paid to labor inspectors by employers without effective prosecution;
B-9. the efforts on by national, state or provincial, and municipal authorities to educate workers about their rights and remedies and of the effectiveness of those efforts;
B-10. the efforts on the part of national, state or provincial, and municipal authorities to engage in capacity-building for government officials with responsibility for labor matters and of the effectiveness of those efforts;
B-11. government actions in encouraging consultation and in facilitating dissemination of best practices in labor-management cooperation, through unions, employer groups, labor-management organizations, labor-oriented NGOs, and tripartite social dialogue;
B-12. government actions in hindering or facilitating the formation and functioning of labor-advocate NGOs and of independent labor inspection, monitoring, and certification organizations; and
B-13. government actions in encouraging and enabling utilization of domestic and international channels about problems, difficulties, or violations of freedom of association and effective recognition of the right to collective bargaining.
General indicators that are not necessarily under the control of a government may show compliance with freedom of association and effective recognition of the right to collective bargaining. These indicators include union density, frequency and length of strikes, and the percentage of workers covered by collective bargaining agreements. Each of these indicators presents special difficulties in assessing compliance.
Union density might be considered a good objective indicator of compliance with freedom of association, but the information must be considered in context and cannot simply be used alone. First, union density numbers are often not reliable.12 Trade unions often try to create an impression of strength by inflating their membership numbers, and governments also manipulate trade union membership data. Second, high union density numbers may not be indicative of genuine freedom of association because national governments or political parties may exercise control over membership. China and Egypt, for example, impose explicit governmental control over unions. In India, each major political party has its own union. The presence of “yellow” unionism—unions controlled by employers—can also
The ILO’s description of its methodology for calculating union membership attests to the problems associated with this measurement. See ILO, Task Force on Industrial Relations (GT/RP), World Labour Report 1997-1998 (International Labour Organization Governing Body, 1998), “Industrial relations, democracy and social stability, technical notes, industrial relations indicators.” Available at http://www.ilo.org/public/english/dialogue/govlab/publ/wlr/97/annex/notes.htm.
affect union density figures, as can control of unions by government officials or criminal elements.
Even where numbers are accurate, one still finds a lot of room for interpretation. Both France and Spain exhibit low union density when measured in terms of dues-paying membership, on the order of 8-10 percent. But they both have relatively high density when measured in terms of the percentage of workers covered by collective agreements, estimated at more than 70 percent. Countries with a large informal sector can have low union density relative to the entire labor force, but it may be high in the formal sector.
Low union density in countries where freedom of association is respected could occur if workers have simply not opted for union representation or where other forms of worker-management interaction are prevalent. The use of union density as a proxy for compliance with freedom of association is built on the implicit assumption that, in the presence of genuine freedom of association, all workers would join a trade union, but this assumption might be at variance with reality (Freeman and Rogers, 1999).
Finally, while several organizations (such as the ILO and U.S. Department of State) may provide estimates for union density (and for other general indicators discussed below), the numbers may all derive from a single origin, such as official government reporting. Alternatively, the numbers may come from distinct sources using diverse methodologies (such as those from studies by the North American Free Trade Agreement [NAFTA] secretariat).
Similar critiques apply to other overall measures. For example, the extent of coverage of collective agreements may, or may not, be an accurate measure of the right to bargain collectively. Many countries have a master collective agreement bargained between union and employer federations. The terms of these agreements are extended to all firms in a sector, even though workers and employers in the sector were not directly involved in the bargaining process. Such master agreements can result in wage levels that workers’ productivity (or market clout) would afford them with free bargaining, but governments and government-run unions can also impose master agreements that hold wages below (or boost wages artificially above) the outcome that would result from free bargaining.13 The assessment of
master agreements requires investigating the extent to which members of the unions in the federation delegate their bargaining rights to the federation and are able to approve or disapprove of the bargains struck.
There are other difficulties with using the sheer numbers of workplace unions and collective agreements to measure respect for workers’ freedom of association and bargaining rights. One difficulty springs from whether a country permits minority unionism and multiple unionism and multiple agreements in the same workplace. In France, for example, Confederation generale du travail (CGT), Confederation Francaise Democratique du Travail (CFDT), and Force Ouvrière bargaining groups represent workers in the same plant. In Spain, the Union General de Trabajadores (UGT) federation and the Comisiones Obreras bargain on behalf of employees in the same plant. Each of these multiple unions negotiates a separate contract. These two countries might be compared with other countries where labor regulations stipulate exclusive representation by a single union required to be supported by a majority of workers to obtain one contract. For two countries that would appear similar in terms of size of the labor force, firm size, and other characteristics, indicators for the country that allows multiple unionism in a single workplace might display three or four times as many unions and collective agreements as indicators for the country with exclusive representation.
A large volume of strikes—measured in terms of frequency, length, or person-days—can be taken to indicate respect for the right to strike with a healthy collective bargaining system, or it can indicate the reverse. A small number of strikes might mean that labor and management bargain freely and readily compromise to reach agreements. But a small number of strikes can also be symptomatic of a repressive system in which workers are afraid to strike for fear that they will suffer reprisals or be replaced.
Thus, each of the committee’s four indicators for assessing overall outcomes needs interpretation to be used to measure compliance with freedom of association and effective recognition of the right to collective bargaining:
C-1. union density;
C-2. frequency, length, and person-days of legal strikes;
C-3. percentage of workers covered by collective bargaining agreements; and
C-4. incidents of discrimination against union organizers, unions, or employer associations.
SOURCES OF INFORMATION
The evaluation of sources of information on compliance with freedom of association and effective recognition of the right to collective bargaining requires some introductory cautions and caveats. Most information that might be used to investigate compliance is likely to come from relatively large firms within the formal sector. In developing nations, such firms usually comprise a tiny proportion of all firms. As a result, for developing nations, information on freedom of association and collective bargaining is generally not based on a representative sample and cannot be used to draw inferences about the ways workers may be treated in the overall economy.
Information about governmental efforts and effectiveness in enforcing freedom of association and collective bargaining may likewise be nonrepresentative. Although evidence about enforcement might be presented as national in coverage, enforcement efforts may be limited to certain regions, economic sectors, or occupations.
This section discusses three information sources on various nations’ compliance with freedom of association and right to collective bargaining.14Chapter 2 covers these information sources more generally and provides more detailed comments on the reporting efforts.
Comprehensive Descriptive Labor Rights Reports
The reports in this category cover large numbers of countries and examine all the components of freedom of association, including organizing, bargaining, and the right to strike. They examine both whether governments are actively interfering with these rights, on the one hand, and whether governments are providing effective protection of the rights. Some provide a perspective on whether states are taking a proactive approach to informing workers about their rights and remedies, to improving the performance of labor regulatory institutions, to encouraging the adoption of best practices in labor-management relations, and to encouraging the spread of independent monitoring and public reporting.
Three sets of comprehensive reports are particularly important for assessing compliance with freedom of association and right to collective bargaining: the U.S. Department of State’s annual Section 6 reports on workers’ rights, the International Confederation of Free Trade Unions (ICFTU) and its annual survey of violations of trade union rights, and annual reports by the ILO’s Committee of Experts and Committee on Freedom of Association and “Follow-Up” reporting.
U.S. Department of State’s Annual Section 6 Reports
The Department of State’s annual Country Reports on Human Rights Practices address workers’ rights in Section 6, providing a valuable source of information for indicators A-1 through A-21, B-1 through B-13, and C-1 through C-4.
In a memorandum to embassies about the reports, the Department of State instructs those preparing the report to first note any ILO, GSP, and OPIC cases that may pertain to freedom of association in the country, as well as information in ICFTU and other NGO reports (U.S. Department of State, 2001). It then presents 15 general questions (with subquestions) on rights of association, organizing, and bargaining that must be answered, with explanatory amplification.
Some of the questions require reporting of facts: “Note the percentage of the total work force that is organized.” “Were there legal or illegal strikes during the year? If so, how many?” “Has the government lost GSP or OPIC benefits on worker rights grounds?” Some require an assessment of laws and regulations: “Cite any categories of workers that are not permitted to join a union.” “Does the law protect workers from employer interference in their right to organize and administer their unions” “Are there significant restrictions in EPZs [export processing zones]?”
Still others require Department of State personnel to form a judgment, “Are unions subordinate to the government, political parties, or any other political forces in law or in practice?” “Do labor administrative and judicial bodies function independently?” “Is collective bargaining freely practiced?” “Is the law effectively enforced?” It is clear that how such judgments are made is crucial to interpreting a country’s compliance, making strict comparison among countries difficult.
Although these Section 6 reports constitute an important resource for assessing freedom of association and right to collective bargaining, they
may exhibit weaknesses relating to the inherently politically charged nature of the editing process, as described in Chapter 5.
The ICFTU’s Annual Survey of Violations of Trade Union Rights has become a standard reference on workers’ freedom of association (International Confederation of Free Trade Unions, 2003a). The ICFTU is the largest international union confederation, made up of 231 affiliated national union organizations in 150 countries and territories located on all five continents. With total membership among its affiliates estimated at about 158 million, the ICFTU provides a unique channel for workers’ concerns about freedom of association (International Confederation of Free Trade Unions, 2003b). To produce the survey, the ICFTU collects reports from its affiliated unions around the world, supplemented with country visits to interview key actors for some countries. The survey provides an overview of labor law and practice and describes specific cases of labor rights violations. Drawing on this effort, the ICFTU has also produced 63 country reports to the World Trade Organization in recent years.15
Earlier, ICFTU reports were spotty and differed widely in quality of reporting (Compa, 2002). Sometimes they were more argumentative than informative. More recently, the reports have become more consistent, more thorough, and more dispassionate, allowing readers to draw their own conclusions from the facts. The reports still present trade unionists’ accounts of what they consider to be assaults on their rights during a given year in a given country, and in this sense they are inherently one-sided.
Sometimes the reports are carefully documented; other times there is inaccurate or outdated information. The more reliable reports reflect careful review and editing on the part of ICFTU affiliates and headquarters, as well as input from the offices around the world of the American Center for International Labor Solidarity (which is affiliated with the AFL-CIO). ICFTU reporting about any given country derives almost exclusively from the ICFTU affiliates in that country and may overlook important inputs from non-ICFTU sources.
ICFTU affiliates around the world feed accounts of the worst violations of workers’ rights to headquarters staff in Belgium, driving the pro-
See http://www.icftu.org/list.asp?Type=WTOReports&Order=Date&Language=EN&STEXT=WTO [October 16, 2003].
duction of the final product. As a consequence, the ICFTU report cannot be considered a fully rounded study of workers’ rights in every country, nor can the workers and countries covered be considered a representative sample of all workers in the world. Nonetheless, the ICFTU reports constitute a possible source of information for indicators A-1 through A-8, A-12 through A-21, and B-1 through B-6.
As part of the ILO supervisory system—but given special prominence because of its importance—the Committee on Freedom of Association (CFA) is empowered to investigate alleged violations in this area, even by countries that have not ratified Conventions No. 87 and No. 98. CFA reports are a possible source of information for indicators A-1 through A-21, B-1 through B-13, and C-1 through C-4.
ILO reporting uses very guarded diplomatic language that requires an acquired expertise to decipher (see Chapter 8). CFA reports are usually more pointed because they respond to complaints and address concrete problems of workers’ rights violations. Inadequate enforcement can be identified, or progress measured, as when “the committee notes with satisfaction that” as it did, for example, recognizing Sri Lanka’s passage of a new law prohibiting acts of anti-union discrimination.
One important caution in using the CFA reports is that they are complaint driven. This skews the distribution of reports toward those whose trade unions avail themselves of the CFA complaint procedure or toward countries targeted by external trade unionists if in-country trade unions are not in a position to avail themselves of this mechanism. The CFA does not purport to conduct a general survey. One country with serious freedom of association violations might not be the subject of many CFA complaints because the unions lack the resources to file complaints, because labor movements have different priorities for the complaints they do file, or because governments suppress the complaint procedure. Another country with fewer violations could be the subject of numerous complaints because the labor movement there actively utilized the CFA system.
This characteristic of the process has led to significant regional disparities in the number of CFA complaints to the ILO that almost certainly do not reflect the actual distribution of violations. Approximately half of all CFA complaints come from Latin American countries, in part reflecting the fact that Latin American unions have grown accustomed to using this
mechanism. In Asia and Africa, the ILO CFA procedures appear to be less familiar to many trade unionists and their allies, and unions are often less strong. Technical assistance from the ILO and from other agencies, such as the U.S. Department of Labor, in how to use the ILO complaint process could help remedy this disparity.
The follow-up mechanism to the ILO 1998 Declaration requires countries by virtue of their membership in the ILO to report on their efforts to meet the Declaration’s goals (including freedom of association and right to collective bargaining) even if they have not ratified the core conventions. These reports are assembled and published with an introduction by experts in this field. These experts have urged workers’ organizations and employers’ groups to use these follow-up collections of reports to stimulate dialogue among themselves and with their respective governments about ensuring compliance with freedom of association and right to collective bargaining.
As part of the follow-up process, the director-general of the ILO composes a “global report” whose contents rotate among the four core labor standards. The 2000 global report was devoted to freedom of association and right to collective bargaining. Your Voice at Work listed countries that failed to comply with important elements of Conventions No. 87 and No. 98 (International Labour Organization, 2000b). It identified 15 countries, for example, that fail to protect agricultural workers’ right to organize (including Afghanistan, Canada, the United Arab Emirates, and the United States). It highlighted countries where there were arrests and detentions of union representatives (Cape Verde, Central African Republic, China, Comoros, Democratic Republic of the Congo, Djibouti, El Salvador, Ethiopia, Gabon, Guinea, Guinea-Bissau, Indonesia, Ivory Coast, Lebanon, Morocco, Niger, Nigeria, Pakistan, Panama, Paraguay, Republic of Korea, Senegal, Sudan, Swaziland). And it listed countries that prohibited any type of labor organization (Oman, Saudi Arabia, the United Arab Emirates).
Selected Country and Complaint-Based Descriptive Reports
Selected country and complaint-based descriptive reports often include useful information on freedom of association and right to collective bargaining. As discussed in Chapter 2, these sources of information may not be comparable across countries and may reflect the biases of the reporting organization. They may not be representative of conditions throughout the labor force. However, they may nonetheless provide detailed insights into specific conditions in specific countries.
Government Agency Reports
U.S.Trade Representative Trade Policy Staff Committee The reports of the Trade Policy Staff Committee (TPSC)—and interagency group chaired by the U.S. Trade Representative (USTR)—review complaints about countries that are parties to preferential trade arrangements with the United States, including Generalized System of Preferences (GSP), Caribbean Basin, Andean Pact, and African Growth and Opportunity Act. They frequently address issues of compliance with freedom of association and right to collective bargaining and can be an important source of information for indicators A-1 through A-21, B-1 through B-13, and C-1 through C-4. These reports may reflect the biases of the interested parties requesting review, as well as the political interests of the participating U.S. government agencies (see Chapter 8).
Overseas Private Investment Corporation OPIC undertakes country studies about labor conditions in countries that are not eligible for GSP benefits because, for example, their level of development is too high or they have communist governments. As reflected in a careful and detailed study of Vietnam, such a study can be a useful source of information on prospects for freedom of association and right to collective bargaining, providing information for indicators A-1 through A-21 and B-1 through B-5.
U.S. Department of Labor Bureau of International Labor Affairs Over the years, the U.S. Department of Labor’s Bureau of International Labor Affairs (ILAB) has produced a variety of reports assessing countries’ compliance with international standards on workers’ freedom of association. ILAB country studies can be an important source of information for indicators A-1 through A-21, B-1 through B-13, and C-1 through C-4.
A 1996 ILAB study of export processing zones in the Dominican Republic, El Salvador, Guatemala, Honduras, India, and the Philippines, for example, followed a carefully prepared and thorough work plan that combined document review, legal analysis, field visits, and interviews (U.S. Department of Labor, 1996). The ILAB field methodology was exemplary, marked by previsit planning meetings with U.S. garment importers and trade unions and with embassy officials from the countries to be visited. It relied on intensive interviews with government officials, employers, unions, workers, and NGOs and included plant visits to more than 70 factories in 20 EPZs in the six countries. While the sample studied could not be comprehensive—there were several thousand factories in the EPZs under con-
sideration—the report extracted valuable information on workers’ rights in these zones, which (except for India) have been the countries’ main conduit into the global economy.
To be sure, there are limitations with this kind of reporting: it represented a one-time project rather than an ongoing ILAB undertaking. It did not examine workers’ rights in general in each country; instead, it limited its coverage to the EPZs and used a sampling method. Within this framework, however, it proved to be an effective use of in-country site visits and systematic interviews.
Reports under the North American Commission for Labor Cooperation Operating under the North American Commission for Labor Cooperation established with NAFTA, the U.S. National Administrative Office (NAO) has undertaken careful investigations of freedom of association complaints in Mexico and Canada. Canada’s NAO has likewise conducted some quite thorough investigations of freedom of association complaints involving Mexico. In much more limited fashion, Mexico’s NAO has reported on several complaints involving freedom of association cases in the United States. These NAO reports may be a valuable source of information for indicators A-1 through A-21, B-1 through B-3, and C-1 through C-4. The results do reflect consultation and negotiation among the three member governments.
U.S. Congressional Research Service Reports Prepared as background documents for congressional hearings, Congressional Research Service country reports often look in detail at freedom of association and collective bargaining issues. Studies of Vietnam and China show that these can shed useful light on indicators A-1 through A-21, B-1 through B-13, and C-1 through C-4.
International Agency Reports
United Nations While U.N. agencies consign responsibility for freedom of association issues to the ILO, occasional reports by the U.N. High Commissioner for Human Rights include labor rights violations, along with investigation of other human rights abuses.
World Bank The World Bank has started to incorporate analysis of core labor standards into the preparation of its “Country Assistance Strategy”
reports (World Bank, 2003). In preparing these reports, World Bank employees may address several questions, including, “Are workers prevented from organizing?”
Recent studies have not in fact given prominence to freedom of association and collective bargaining issues (to the same degree as child labor). The World Bank reports have pointed out that trade unions in developing countries can sometimes be characterized as rent-seeking organizations that provide privileges to their members at the expense of workers more generally (World Bank, 1995). A recent research review, commissioned by the World Bank, noted that trade unions sometimes speed acceptance of new practices and reforms, while at other times trade unions can detract from economic growth and efficiency and generate political opposition to reform. (Aidt and Tzannatos, 2002). The World Bank acknowledges that its approach to freedom of association, union organizing, and collective bargaining, as distinct from child labor, forced labor, and discrimination, “is complicated by (a) the potential political nature of the standards and (b) research showing ambiguous economic outcomes.” (World Bank, 2000).
NAFTA Labor Secretariat In addition to studies on labor market issues, the secretariat of the North American Commission for Labor Cooperation under NAFTA has produced substantive analyses of workers’ freedom of association in the three member countries (Commission for Labor Cooperation, 2000). These analyses are books of some 200 pages that provide a model of completeness in covering vital aspects of association, organizing, and bargaining rights. The compilation of these studies is exemplary, with commissioned background papers and internal and external referees to ensure accuracy and quality of analysis. While limited to the three NAFTA states, they provide a fundamental source of information for indicators A-1 through A-21, B-1 through B-3, and C-1 through C-4.
Private Actors’ Reports
Reports from U.S. Nongovernmental Organizations
Two U.S. NGOs that regularly report information pertaining to freedom of association are Freedom House and Human Rights Watch. Other U.S. NGOs engaged in labor rights reporting occasionally provide useful information as well.
Freedom House Freedom House reports (see Freedom House, 2003) are not designed to provide detailed information on freedom of association and collective bargaining. They pose only two fundamental questions: “Are there free trade unions and peasant organizations or equivalents?” “Is there effective collective bargaining?” These reports perforce reduce highly complex assessments into simple summary answers. For the United States, for example—rated “free” by Freedom House—the complete report of workers’ organizing and bargaining rights consists of two sentences: “The U.S. has freedom of association. Trade unions are free, but have been in decline for some years and today represent the lowest percentage of American workers in the postwar period.”
On Chile (also rated “free”), the summary analysis says that: “Chile has a strong trade union movement.” However, experts familiar with Chilean labor consider that the labor movement—which certainly was very strong before the 1973 military coup—was virtually destroyed by the Pinochet dictatorship and is today weak and divided, with workers still facing severe restrictions on organizing and bargaining (Frank, 2002). On Sri Lanka, Freedom House says, “Trade unions are independent and collective bargaining is practiced,” but unions have complained that employer-created “workers’ councils” have supplanted trade unions.
Nonetheless, Freedom House reports might be useful for indicators A-1, A-5 through A-14, B-1, B-2, B-4, and B-5.
Human Rights Watch The Human Rights Watch annual report (see Human Rights Watch, 2003) suffers from some of the same drawbacks as Freedom House. The coverage of freedom of association issues is not always consistent and depends upon the priorities of the reporters.
Workers’ rights are not addressed in the Chile report, for example, because Pinochet-related prosecutions and treatment of journalists received higher attention. Similarly, civil strife between the central government and the Tamil separatists was highlighted in the Sri Lanka report, and workers’ rights are not mentioned. The report on Mexico, in contrast, contained two revelatory paragraphs about significant violations of workers’ freedom of association. Reliance on the Human Rights Watch annual report might therefore lead an outside observer to conclude correctly that serious problems are present in Mexico, but incorrectly that serious problems are absent in Chile and Sri Lanka.
From time to time, Human Rights Watch publishes a major country report devoted to workers’ rights, such a recent one on freedom of association in the United States (Compa, 2000). In addition, the organization’s Corporations and Human Rights program issues occasional studies of corporations, including their treatment of workers (Human Rights Watch, 1999a, 1999b).
Despite the drawbacks cited above, Human Rights Watch reports might be scrutinized for information on indicators A-1, A-5 through A-14, B-1, B-2, B-4, and B-5.
Global Alliance for Workers and Communities As part of its assessment of workers’ needs, the Global Alliance for Workers and Communities has provided careful and well-organized survey information that includes some attention to freedom of association. Global Alliance reports can provide indepth insights about worker treatment and worker preferences at plants in China, Vietnam, Indonesia, and Thailand and can provide information for indicators A-1 through A-21, B-1 through B-13, and C-1 though C-4.16
Lawyers Committee for Human Rights The Lawyers Committee for Human Rights has issued reports that touch on freedom of association issues in Cambodia, China, Guatemala, India, Indonesia, Jordan, and South Korea. It has also launched a Workers Rights Information Project to collect information on corporate practices, including treatment of workers.17
International Labor Rights Fund Information collected by the International Labor Rights Fund in connection with GSP petitions, complaints under NAFTA, and civil lawsuits on behalf of workers’ rights sometimes address freedom of association and collective bargaining issues.18
U.S. Labor Education in the Americas Project Petitions by the U.S. Labor Education in the Americas Project on GSP and Caribbean Basin Initiative eligibility may be a source of useful information on freedom of association and collective bargaining in Central and South American countries.19
See http://www.theglobalalliance.org/section.cfm/6 [October 16, 2003].
See http://www.lchr.org/workers_rights/workers_rights.htm [June 23, 2003].
See http://www.laborrights.org [June 23, 2003].
See http://www.usleap.org [June 23, 2003].
Campaign for Labor Rights The rapid action network campaigns of the Campaign for Labor Rights often point the finger at freedom of association violations that could be followed up with more in-depth investigation.20
National Labor Committee The National Labor Committee campaigns and high-profile firm-focused exposes—as well as the reports on worker treatment at plants in particular countries—can be examined for information on violations of freedom of association and right to collective bargaining.21
Foreign NGOs and Websites
The World Confederation of Labour (WCL) is a smaller international trade union confederation than the ICFTU, with 144 national affiliates located in 116 countries. Many of its estimated 26 million members are located in developing nations (World Confederation of Labour, 2003a). Although the WCL does not report routinely on freedom of association around the world, it does publish occasional short reports on problems in particular countries. For example, a July 2003 “Teleflash” provides brief descriptions of freedom of association problems in Guatemala, Paraguay, and the Republic of Guinea (World Confederation of Labour, 2003b).
Amnesty International may be a source on worker treatment but—like Human Rights Watch—is not consistent in this type of coverage.
Asia Monitor Resource Centre22 might be consulted for information on Asian EPZs, including China; International Centre for Trade Union Rights23 for coverage of African countries; China Labour Bulletin24 and Human Rights in China25 for coverage of China; Global Standards for coverage of Vietnam;26 and Correio Sindical Mercosur for coverage of the southern cone of South America.
See http://www.clrlabor.org [June 23, 2003].
See http://www.nlcnet.org [June 23, 2003].
See http://www.amrc.org.hk [October 14, 2003].
See http://iso.china-labour.org.hk/iso/ [October 14, 2003].
See http://iso.hrichina.org:815/iso/ [October 14, 2003].
See http://www.global-standards.com/ [October 14, 2003].
Information gleaned from voluntary reporting can be used—with careful attention to objectivity, bias, and representativeness—as an important check on other sources of information about compliance with freedom of association and right to bargain collectively. The growing array of voluntary reporting sources are reviewed in Chapter 3.
There is a growing volume of academic research devoted to freedom of association issues. Much of this work is not cited or used by the reporting agencies and institutions reviewed above. Some of the more important journals that report this work include Comparative Labor Law and Policy Journal and the International Journal of Comparative Labour Law and Industrial Relations.
CONCLUSIONS AND RECOMMENDATIONS
Many governments do not collect basic data on union density, number of collective bargaining agreements, number of workers covered by agreements, or frequency and duration of strikes. Much of this information could be collected simply and cheaply by adding questions to household surveys. This is one area where technical assistance from the U.S. Department of Labor, or the ILO, to national labor ministries could yield critical information about trade union representation and the reach of collective bargaining.
But as stressed throughout this chapter, quantitative data on freedom of association and collective bargaining strongly need to be interpreted and placed in context, subject to the caveats and subtleties discussed earlier, since the raw data could point in diametrically opposite directions about compliance.
4-1 The U.S. Department of Labor, and the International Labour Organization, support systematic data collection by providing technical assistance to developing country governments to add questions to household surveys relating to freedom of association and effective recognition of the right to bargain collectively.
4-2 The committee recommends that all the principal reporting bodies in the U.S. government, particularly the U.S. Department of Labor and the U.S. Department of State, gather data related to the full list of indicators of freedom of association and the right to collective bargaining identified in this report and database system.
Reporting bodies need to provide the contextual information so that they—or other assessors—can interpret the raw data about union formation, bargaining, strikes, and improvement or deterioration in the treatment of workers. As discussed throughout this report, this contextual information should include the promotion of compliance through positive inducements as well as improvement in enforcement.
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