Freedom of Association
Standards and Principles
ILO Convention 87
• Freedom of Association and
Protection of the Right to
Organise Convention, 1948 (No.
87) (145 ratifications)
Freedom of Association and Protection of
the Right to Organise Convention, 1948
(No. 87)
• Deals with constitutive elements of freedom of
association
• Objective: Freedom of association without
interference from public authorities
• Scope: employers and workers without distinction
except armed forces and police (narrowly
defined)
Freedom of speech, of assembly and
other civil liberties and the right to
organize
• 1970 Resolution on trade union rights and civil
liberties
The right to
freedom and
security of
person and
freedom from
arbitrary arrest
and detention
Freedom of
opinion and
expression
Freedom of
assembly
Protection of
trade union
premises and
property
The right to freedom and security of
person and freedom from arbitrary arrest
and detention
• Due process must be respected: access to legal
representation must be ensured
• Trade unionist must not be detained for the
exercise of legitimate trade union activities
• When charged with ordinary crimes, the same
must not be a pretext for the suppression of
the association
• Presumption of innocence
• Right to public trial
Freedom of opinion and
expression
• The right to express opinions without prior
authorization through the press or otherwise is
an essential aspect of trade union rights.
Freedom of assembly
• Permission to hold public meetings and
demonstrations, which is an important trade
union right, should not be arbitrarily refused.
Protection of trade union
premises and property
• The inviolability of trade union premises is a
civil liberty which is essential to the exercise
of trade union rights.
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)
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 institutions
• Art.244 – Right of employees in the public service
• Art. 235- Ineligibility of managerial employees /
Right of Supervisory Employees to join
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 choosing
• Without previous authorization (registration,
minimum membership)
WHO MAY ORGANIZE?
Freedom to establish and join
organizations of their own choosing
without previous authorization
• The state may set limits on formalities for
establishing employers/workers’ organizations.
• Except when such formalities:
• Restrictive
• Gives discretionary refusal power
• Or provides requirements that is impossible to comply
with.
PLC:
Article 234 – registration of Independent Organization
Article 234-A- registration of Local Chapter
Without distinction
• All 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?
Organizations of their own choosing
• The 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?
Without previous authorization
Questions:
• A 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)
•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?
Without previous authorization
• Registration
• If 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)
Without previous authorization
• Minimum Membership
• While 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)
Freedom of Association and the
negative right
• Negative 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)
Freedom of Association and the
negative right
• Philippine Setting:
• Union Shop-all new regular workers should
join the organization
• Maintenance of Membership Shopemployees 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 union
When does union security
arrangement becomes
problematic?
“xxx if unreasonable
conditions were to be imposed
upon persons seeking such
membership.”
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)
Organizations’ right to draw up
constitutions and rules
• The state should not interfere in
the crafting of the organizations’
constitution.
• The requirements for the content
should:
• Lay down formal requirements
• That would assist the
organization function
democratically
• Do 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?
Organizations’ right to elect
representatives in full freedom
• The State should not interfere or restrict the
right to elect representatives
• It is the prerogative of the workers’ and
employers’ organization to determine the
conditions for electing their leaders
• Number of leaders
• Term of Office / regularity of election
• Process of selecting, including the required votes to be
elected
• Eligibility of membership or union office
Organizations’ right to elect
representatives in full freedom
• ILO 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.
Organizations’ right to elect
representatives in full freedom
On Criminal Record
• A 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)
Organizations’ right to organize
administration and activities, and
formulate programs
•
•
•
•
•
•
•
Autonomy
Financial independence
Protection of assets and property
Hold meetings
Access to workplace
Political activities
Right to strike
Question:
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”
The right to strike (Arts. 3, 10)
• Essential means available to
workers for the protection and
promotion of their interests
• Not 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 term
Questions:
Is the imposition of certain
conditions/prerequisites prior
to the conduct of a strike
contrary to the principles of
FOA?
Notice of strike
Cooling-off period
Strike-vote/secret balloting
XAbsolute majority
Essential services in the strict
sense
• Strike may endanger life, personal safety,
health:
• hospitals
• electricity services
• water supply services
• telephone service
• air traffic control
• Compensatory guarantees (arbitration)
Non-essential services
• Radio and television
• the petroleum sector and ports
• banking
• computer services for the
collection of excise duties and
taxes
•
•
•
•
•
• department stores and pleasure
parks
•
•
• the metal and mining sectors
•
• transport generally
• refrigeration enterprises
• hotel services
•
•
construction
automobile manufacturing
aircraft repair
agricultural activities
the supply and distribution of
foodstuffs
the Mint
the government printing
service
the state alcohol, salt and
tobacco monopolies
the education sector
postal services
Minimum operational service
1. Services 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)
2. 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 population
3. Public services of fundamental importance.
Other provisions
• 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)
Organization’s right to establish and
join federations, confederations and
international organizations
• Article 5, C87 explicitly recognizes the right
of organizations to join together in
federations, confederations or international
organizations
• Union CBL
Organization’s right to establish and
join federations, confederations and
international organizations
• ILO C87
• Article 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 not liable to dissolution
or suspension by administrative
authority
• Prohibits administrative cancellation
• Judicial dissolution with due process of law
• Voluntary Dissolution
• ILO C87
• Article 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
Contract Workers and FOA
• No group of workers should be excluded.
• Neutral Factors / Discrimination
• PLC:
• 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
FOA and Industrial Peace and
Industrial Relations
• Based on Human Interactions
• Full 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?
Application of ILO C87
Subordination of national law to international standards
ILO C87, Article 8
• 1. 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 Constitution
• Section 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
Collective Bargaining
Convention 98
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
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 activities
•Legislative provisions combined with enforcement
mechanism (effective, expeditious, inexpensive and
impartial)
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
(a)
“Interference”;
(b)
“Yellow Dog Condition”;
(c)
“Contracting Out”;
(d)
………
(e)
“Discrimination”;
(f)
“Discrimination because of testimony”;
(g)
………..
Convention No. 98, Article 1
[Protection against Anti-Union Discrimination]
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 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 parties
•
Freedom from interference with organizations applies to
their:
• Establishment
• Functioning
• Administration
Convention No. 98, Article 2
[Protection against Interference]
Local Application
-Labor Code of the Philippines (LCP)
-Art. 248. Unfair Labor Practices of Employers
(a)
…………………..
………
(d)
“Company Domination of Union”;
………..
Convention No. 98, Article 2
[Protection against
Interference]
Local Application
-Art. 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 3
[Protective Machineries Appropriate to
National Conditions]
•
Protective machineries need to be adequate
• Effective
• Rapid
• With sufficiently dissuasive sanctions
•
Adequacy of protective machineries is a wide spread
challenge
•
Challenges can have a unique national character
• Difficulty in enforcement due to distance, etc.
Convention No. 98, Article 3
[Protective Machineries Appropriate to
National Conditions]
•
Mechanisms in Philippine processes for voluntary recognition
and certification for CB that help promote respect for this
aspect of FoA and CB rights
•
DO 40-03, Rule VII (voluntary recognition, amending
IRR, Book V, PLC)
Convention No. 98, Article 3
[Protective Machineries Appropriate to
National Conditions]
DO 40-03 Book VII, Voluntary Recognition
Voluntary Recognition requires three (3) concurrent conditions:
1.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 recognition
Convention No. 98, Article 3
[Protective Machineries Appropriate to
National Conditions]
Local Application
-Single 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 relations
-To encourage the use of conciliation-mediation in the
settlement of labor cases
-Strengthen cooperation and coordination between and
among DOLE agencies involved in dispute settlement
Convention No. 98, Article 4
[Collective Bargaining]
Nature: Collective bargaining leading to collective agreements
Precedence over individual contracts
Scope: Terms and conditions of work and employment
Subjects: Workers’ and employers’ organizations
Convention No. 98, Article 4
[Collective Bargaining]
• Collective Bargaining is Voluntary
• No duty to use compulsory means
• No overly detailed regulation
• The level of negotiation should not be imposed
Convention No. 98, Article 4
[Collective Bargaining]
•It is the responsibility of the State to promote
Voluntary Collective Bargaining
•State can
provide facilitation services to
promote voluntary collective bargaining
Convention No. 98, Article 4
[Collective Bargaining]
•The State has the obligation to adopt measures to
facilitate voluntary collective bargaining:
•Negotiation in good faith
•Conciliation, mediation
•Arbitration
•Rules of procedure
•Information
•Recognition of representative organizations for exclusive
bargaining rights
Convention No. 98, Article 4
[Collective Bargaining]
•Interventions by the Authorities Contrary to the
Voluntary Nature of Collective Bargaining
•Restricting the scope of collective bargaining
•Refusal to approve collective agreements at the discretion
of the authorities
•Annulling or modifying the content of collective agreements
•Suspension of collective agreements by decree
Convention No. 98, Article 4
[Collective Bargaining]
Local Application
1987 Constitution
• Individual and collective rights of workers
• State guarantees the rights of all workers to selforganization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to
strike in accordance with law
• State shall promote preferential use of voluntary modes
of settling disputes, including conciliation
Convention No. 98, Article 4
[Collective Bargaining]
Local Application
• Labor Code of the Philippines
• Book V [Labor Relations]
• RA 9481 [Strengthening Right to Self Organization]
• DOLE Issuances
• DO 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]
Local Application
• DO 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 dispute
• Industries Indispensable to National Interest
- Banking [General Banking Law]
- Based on Supreme Court Decisions
Convention No. 98, Article 4
[Collective Bargaining]
Four Situations where Compulsory Arbitration is Acceptable
• Essential services in the strict sense of the term
• In disputes involving public servants engaged in the
administration of the State
• When, after protracted and fruitless negotiations, it becomes
obvious that the deadlock will not be broken without some
initiative by the authorities
• In the event of acute crisis
Convention No. 98, Articles 5, 6
Collective Bargaining & Public
Servants
•COVERAGE OF RIGHT TO COLLECTIVE
BARGAINING
•ALL PRIVATE AND PUBLIC WORKERS, EXCLUDING:
1. Armed forces,
2. Police
3. Public servants engaged in the administration of the
state
Convention No. 98, Articles 5, 6
Collective Bargaining & Public
Servants
Local Application
•Executive Order No. 180 [01 June 1987] – Providing
Guidelines for the Exercise of the Right to Organize of
Government Employees, Creating a Public Sector laborManagement Council, and for Other Purposes
• Civil Service Commission Amended Rules and
Regulations Governing the Exercise of the Right of
Government Employees to Organize
Convention No. 98, Articles 5, 6
Collective Bargaining & Public
Servants
Local Application
•Executive 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
Convention No. 98, Articles 5, 6
Collective Bargaining & Public
Servants
Local Application
•CSC 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.
Convention No. 98, Articles 5, 6
Collective Bargaining & Public
Servants
•RIGHT TO STRIKE
•Recognition of the Principles of Freedom of Association and
Collective Bargaining in cases of public servants does not
necessarily imply the right to strike
•Right 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, 6
Collective Bargaining & Public
Servants
•RIGHT TO STRIKE
•Compensatory 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, 6
Collective Bargaining & Public
Servants
R.A. 2260, AN ACT TO AMEND AND REVISE THE LAWS
RELATIVE TO PHILIPPINE CIVIL SERVICE
Section 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.
Right to Organise and Collective
Bargaining Convention, 1949
(No. 98)
SUMMARY
•Convention 98 complements Convention 87
•Under ILS, all workers have the right to collectively bargain,
with exceptions
•The proper operation of workers’ and employers’ organization
depends on their functioning independently from each other
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.
END OF
PRESENTATION