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Category: Complaints to the CFA

Complaints to the CFA

Fact-Finding and Conciliation Commission on Freedom of Association

Cooperation with the Economic and Social Council of the United Nations in respect of freedom of association

In January 1950, the Governing Body of the International Labour Office, following discussions with the Economic and Social Council of the United Nations (ECOSOC), established a Fact-Finding and Conciliation Commission on Freedom of Association (FFCC).  It defined its terms of reference, the general lines of its procedure and criteria for its composition, essentially the necessary qualifications to hold high judicial office or to evaluate evidence relating to violation of trade union rights and who, by reasons of their character, standing and impartiality, would command general confidence.

In February 1950, ECOSOC approved this decision. The Governing Body appointed the nine members of the FFCC in March and June 1950 and November 1952, and reconstituted the membership of the FFCC in May-June 1963, March 1965, and May-June 1965. The Governing Body envisaged that arrangements might be made, when appropriate, for the work of the FFCC to be done by panels of not less than three or more than five members.

Mandate

The Commission’s function is to examine cases of alleged infringements of trade union and employers’ organization rights, in particular alleged infringements by governments of member States that have not ratified Conventions concerning freedom of association or  collective bargaining. Such allegations may be referred to the FFCC by the Governing Body or the International Labour Conference acting on the report of its Credentials Committee.

It is also open to any government against which an allegation of infringement of trade union and employers’ organization rights is made to refer such an allegation to the FFCC for investigation.

The FFCC is essentially a fact-finding body, but it is authorised to discuss situations referred to it for investigation with the government concerned with a view to securing the adjustment of difficulties by agreement.

Consent required of the government concerned

Cases concerning countries that have not ratified Conventions concerning freedom of association or collective bargaining can only be referred to the FFCC with the consent of the government concerned.

If the Governing Body is of the opinion that a complaint should be investigated it must first seek the consent of the government concerned. If such consent is not forthcoming, the Governing Body has to give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association and collective bargaining involved in the case, including measures to give full publicity to charges made, together with any comments of the government concerned, and to that government’s refusal to co-operate in ascertaining the facts and in any measures of conciliation. The consent of a government might be given either in an individual case or, more generally, in advance, for certain categories of cases, or for any case which might arise.

Allegations against the government of a UN member State which is not an ILO member State

Pursuant to the procedure agreed upon by ECOSOC and the Governing Body of the International Labour Office, all allegations regarding infringements of trade union and employers’ organization rights received by the United Nations from governments or employers’ or workers’ organizations against ILO member States are to be forwarded to the Governing Body for consideration as to referral to the FFCC.

Pursuant to a resolution adopted by ECOSOC on 9 April 1953 such complaints concerning ILO member States have, since that time, been transmitted automatically by the Secretary-General of the United Nations to the Governing Body without having first been examined, as previously, by ECOSOC. Allegations regarding infringements of trade union and employers’ organization rights received by the United Nations from governments or employers’ or workers’ organizations relating to States Members of the United Nations which are not ILO member States are transmitted to the FFCC through the Governing Body when the Secretary-General of the United Nations, acting on behalf of ECOSOC, has received the consent of the government concerned, and if ECOSOC considers these allegations suitable for transmission.

If such consent of the government is not forthcoming, ECOSOC will give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association and collective bargaining involved in the case. If the Governing Body has before it allegations regarding infringement against a Member of the United Nations which is not an ILO member State, it will refer such allegations in the first instance to ECOSOC.

Preliminary examination by the CFA

For the purpose of making the preliminary examination of complaints received, the Governing Body in 1951 set up a Committee on Freedom of Association, consisting of nine of its own members, together with nine substitute members. When the CFA, after its preliminary examination, concludes that a case warrants further examination, it reports this conclusion to the Governing Body for a determination as to the desirability of attempting to secure the consent of the government concerned to the reference of the case to the FFCC. Click to see an example.

In every case in which the government against which the complaint is made has refused consent to referral to the FFCC or has not within four months replied to a request for such consent, the CFA may include in its report to the Governing Body recommendations as to the “appropriate alternative action” which the CFA may believe the Governing Body might take.  In certain cases the Governing Body itself has discussed the measures to be taken where a government has not consented to a referral to the FFCC.

Reports of the FFCC

The FFCC reports to the Governing Body on the results of its work and it is for the Governing Body to consider in the first instance whether further action should be taken on the basis of the report. Subject to the foregoing, the FFCC is left to work out its own rules of procedure.

The  reports of the FFCC on cases regarding States Members of the United Nations not ILO member States are to be transmitted to ECOSOC by the Director-General on behalf of the Governing Body.

Practical use of the procedure

The procedure has resulted in a report by the FFCC on six occasions in the past, the last time in 1992.

Key factors behind the relatively sparse use of the procedure include:

  1. the fact that today, Conventions concerning freedom of association and collective bargaining are much more widely ratified than when the FFCC was first constituted;
  2. the effectiveness of the CFA’s examination of allegations of infringement of principles of freedom of association and the effective recognition of the right to collective bargaining; and
  3. the fact that the membership of both the United Nations and the ILO has become more universal than when the FFCC was first constituted.

The procedure remains available to date.

The complainant organization can follow up on measures taken to implement recommendations of the CFA. The employers’ organization provides information.

Where an employers’ organization is the complainant, it can follow up directly on the measures taken to implement the recommendations of the CFA and inform about compliance or non-compliance with them.

Where actions by enterprises are implicated by CFA recommendations, governments are requested to follow up with employers’ organizations concerned. For example, if the recommendation involves the reinstatement of workers, the relevant enterprise will have to keep the government abreast of its actions in that regard, via the employers’ organization.

The Governing Body receives and normally approves the CFA report with conclusions and recommendations, sending the matter on for follow-up as appropriate.

At each of its sessions, the Governing Body receives the CFA report for approval. The report contains findings and conclusions for several cases before the CFA, reflecting as well each case’s stage of handling – whether a complain had just been received, a government’s observations has been requested or received, the matter treated substantively, etc.

Where the relevant Conventions have been ratified, in the report the CFA may decide to bring the relevant legislative aspects of a case to the attention of the CEACR. In this way, the government involved will normally be asked to reply to comments made by the CEACR on the conformity of the legislation and its application in practice with the ratified Convention. The CEACR will thus follow up on the outstanding issues related to the Convention until the requested action has been taken and the issue of compliance has been resolved. Click to know more about the regular supervisory machinery.

Where the relevant Conventions have not been ratified, the CFA will follow up on its recommendations.

Views of the Employers’ group are considered in the CFA.

The members from the Employers’ group also bring the experience of representative organizations of employers to the deliberation of cases in the CFA. Nevertheless, they have been able to reach consensus on the decisions over the years. The role played by the independent chairperson of the CFA is important in this regard.

The government uses formal channels to communicate with the CFA subsequent to providing observations on the allegations.

Once the government has provided observations on the allegation, only formal channels of communication are open to provide additional information or observations to the CFA, supported by documentary evidence. A hearing of the parties may exceptionally occur. Likewise, the CFA uses only formal communication channels to give its views or request additional information.

Views of the Workers’ group are considered in the CFA.

The members from the Workers’ group also bring the experience of representative organizations of workers to the deliberation of cases in the CFA. Nevertheless, they have been able to reach consensus on the decisions over the years. The role played by the independent chairperson of the CFA is important in this regard.

 

The CFA considers the allegations and reaches conclusions and recommendations on the basis of consensus.

The CFA deliberates in private sessions, its working documents are confidential and, in practice, decisions are taken by consensus.

No representative or national of the State against which a complaint has been lodged, or person occupying an official position in the national complainant organization, or a member from the employers’ or workers’ group of the country concerned, may participate in the deliberations or even be present during the hearing of the complaint in question. Similarly, the documents concerning the case are not supplied to them.

Prescription

Despite there are no formal rules fixing any particular period of prescription in the procedure for examining complaints, the CFA has acknowledged that it may be difficult for a government – if not impossible – to reply in detail to allegations regarding matters which occurred a long time ago. It may in such cases choose not to examine the complaint.

Withdrawal of complaints

Any request for withdrawal of a complaint must come from the complainant organization concerned. Where a request is made, the CFA evaluates the reasons given to explain the withdrawal. This is done with a view to establishing whether the request has been made in full independence.

Where a request is made for the postponement of examination of a case, either by a complainant or the government, the practice followed by the CFA consists of deciding the question in full freedom when the reasons given for the request have been evaluated and taking into account the circumstances of the case. See the Procedures for the examination of complaints alleging violations of freedom of association for details.

The CFA report of a case is transmitted to the full Governing Body for approval, and ultimately published in the Official Bulletin and on the ILO website. CFA reports on each case have the following structure: allegations made, government’s reply, conclusions and recommendations of the CFA. Since case handling normally continues over several meetings, case reports use a particular terminology to reflect status and results.

Nature of CFA reports

Definitive report: The CFA determines that the case calls for no further examination, where no violation of freedom of association is found or where the issues have been resolved or the CFA states a principle or provides guidelines to be followed without requesting the government to keep it informed. The case will then be closed.

Interim report: The government concerned is asked to take specific action or to provide additional information to assist the CFA in examining the case further. The government may also be asked to remedy aspects of the case and report back to the CFA on the measures which have been taken.

The CFA normally re-examines the case when it receives the government and/or complainant’s additional information and will issue an “urgent appeal” if it has not received the information requested from the government after two postponements. After the re-examination, the CFA may make new interim conclusions and recommendations in light of any new information provided and continue to keep the case under full examination.

Report in which the Committee requests to be kept informed of developments: The CFA asks to be kept informed of developments, where it wants to follow the action taken by the government to implement its recommendations until all outstanding issues have been resolved.

CFA cases and reports terminology

The table below explains the terminology used for the status of cases before the CFA and that used to classify the CFA reports on a case.

CFA reports can also be found in the NORMLEX database, where cases appear by status in the country profiles.

The CFA has recently decided that any inactive cases, i.e. cases that have not received information from the parties for 18 months (or 18 months from the last examination of the case), will be considered closed. This practice would not be used for serious and urgent cases. The closure of inactive cases concerning countries that have not ratified the Conventions on freedom of association and collective bargaining will be decided on a case-by-case basis depending upon the nature of the case. Cases that are closed in this manner will have the following indication on the ILO website: “In the absence of information from either the complainant or the Government in the last 18 months since the Committee examined this case, this case has been closed.”

Recourse to preliminary contacts, direct contacts or tripartite missions may be had.

In handling an allegation, on-the-spot missions whereby a person entrusted by the Director-General – either an independent person or an ILO official – is sent to the country concerned in order to collect information on the facts relating to a case and/or to seek solutions to the difficulties encountered may take place.

Preliminary contacts may occur early on in the process of treating the matter. They are used for complaints of a particularly serious nature and require the prior approval of the Chair of the CFA.

Its possible purposes are:

  • to transmit to the competent authorities in the country the concern to which the events described in the complaint have given rise;
  • to explain to those authorities the principles of freedom of association and the effective recognition of the right to collective bargaining involved;
  • to obtain from the authorities their initial reaction, as well as any comments and information with regard to the matters raised in the complaint;
  • to explain to the authorities the special procedure in cases of alleged infringements of trade union and employers’ organization rights, and in particular the direct contacts method which may
  • subsequently be requested by the government in order to facilitate a full appraisal of the situation by the CFA and the Governing Body;
  • to request and encourage the authorities to communicate as soon as possible a detailed reply containing the observations of the government on the complaint.

Direct contacts may occur either during the examination of the case or at the stage of the action to be taken on the recommendations of the Governing Body. They can only be established at the invitation of the government concerned, or at least with its consent.

On certain occasions, and normally after in-depth examination of the case, the CFA may propose to the government concerned to accept a tripartite mission with the purpose to assist in the resolution of the outstanding issues.

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