Category: The complaint alleging violation of freedom of association and collective bargaining is lodged

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 CFA has established criteria according to which a complaint can be deemed receivable. One of them relates to the complainant organization, in that allegations are receivable if they are submitted by:

• a national organization representing workers directly interested in the matter;
• international organizations of workers having consultative status with the ILO; or
• other international organizations of workers where the allegations relate to matters directly affecting their affiliated organizations.

Click to see the full checklist for receivability of complaints.

Furthermore, it is important that the complaint:

• describes the facts in detail;
• is fully supported by evidence;
• lists the relevant provisions of national legislation that would infringe the principles of freedom of association and the effective recognition of the right to collective bargaining, wherever possible; and
• includes information on national tripartite mechanisms established in the framework of the technical assistance provided by the Office, where applicable.

Click to see a checklist on the content of the complaint.

The CFA has recently requested the Office to develop an electronic form for filling complaints, including a question to facilitate the complainant’s consideration of the possibility of voluntary conciliation.

For more information, see also on the ILO website the page with publications on ILS, where resources specifically developed for employers’ organizations can be found.

Complaints are brought against governments. They are received and treated by the CFA regardless of whether the member State concerned has ratified any of the Conventions dealing with freedom of association and collective bargaining. This is because member States are deemed bound to respect the fundamental principles of freedom of association and the effective recognition of the right to collective bargaining contained in the ILO Constitution, including the Declaration of Philadelphia, by virtue of their membership in the Organization.

Governments are called to respond to allegations that legislation and/or practices have violated these principles. They are also called to answer to allegations over actions by employers or workers, or their organizations, that violate the above-mentioned principles, since governments are charged with promoting and assuring respect for them within their territory.

The CFA has established criteria according to which a complaint can be deemed receivable. One of them relates to the complainant organization, in that allegations are receivable if they are submitted by:

• a national organization representing workers directly interested in the matter;
• international organizations of workers having consultative status with the ILO; or
• other international organizations of workers where the allegations relate to matters directly affecting their affiliated organizations.

Click to see the full checklist for receivability of complaints.

Furthermore, it is important that the complaint:

• describes the facts in detail;
• is fully supported by evidence;
• lists the relevant provisions of national legislation that would infringe the principles of freedom of association and the effective recognition of the right to collective bargaining, wherever possible; and
• includes information on national tripartite mechanisms established in the framework of the technical assistance provided by the Office, where applicable.

Click to see a checklist on the content of the complaint.

The CFA has recently requested the Office to develop an electronic form for filling complaints, including a question to facilitate the complainant’s consideration of the possibility of voluntary conciliation.

For more information, see also on the ILO website the App specifically developed for workers’ organizations.

Set up in 1951, the CFA is a standing committee of the Governing Body. It has an independent chairperson, and is composed of nine titular members and nine deputy members from the Government, Employers’ and Workers’ groups of the Governing Body, all appointed in their personal capacity. The CFA meets three times a year, in the weeks before the Governing Body meetings in March, June and November.

As of today, the CFA has examined more than 3,300 cases covering most aspects of freedom of association and collective bargaining and a Compilation of its decisions is available in the ILO website.

The recently established practice of publishing CFA annual reports provides helpful information on the use of the procedure throughout one year. The annual report is supported by statistical data, e.g. on the number of lodged complaints, the origin and nature, and other details with regards to the work undertaken by the CFA, the progress made and the serious and urgent cases examined. Since 2019, the Chair of the CFA presents the annual report to the CAS.

For more information on the procedure, see on the ILO website the overview on the CFA, the Procedures for the examination of complaints alleging violations of freedom of association, which is annexed to the Compilation of decisions, and the CFA reports. To know more about the procedure before the CFA, a flowchart presentation is also available.