The Committee on Freedom of Association
Freedom of association and collective bargaining are among the founding principles of the ILO. Soon after the adoption of Conventions Nos 87 and 98 on freedom of association and collective bargaining, the ILO came to the conclusion that the principle of freedom of association needed a further supervisory procedure to ensure compliance with it in countries that had not ratified the relevant Conventions. As a result, in 1951, the ILO set up the Committee on Freedom of Association (CFA) for the purpose of examining complaints of violations of freedom of association, whether or not the country concerned had ratified the relevant Conventions. Complaints may be brought against a member State by employers’ and workers’ organizations. The CFA is a Governing Body committee, and is composed of an independent chairperson and three representatives each of governments, employers and workers. If it decides to receive the case, it establishes the facts in dialogue with the government concerned. If it finds that there has been a violation of freedom of association standards or principles, it issues a report through the Governing Body and makes recommendations on how the situation could be remedied. Governments are subsequently requested to report on the implementation of its recommendations. In cases where the country has ratified the relevant instruments, legislative aspects of the case may be referred to the Committee of Experts. The CFA may also choose to propose a “direct contacts” mission to the government concerned to address the problem directly with government officials and the social partners through a process of dialogue. In nearly 70 years of work, the CFA has examined over 3,300 cases. More than 60 countries on five continents have acted on its recommendations and have informed it of positive developments with regard to freedom of association in recent decades.
The Committee on Freedom of Association: An innovative procedure in international law
Paragraph 14 of the Special procedures for the examination of complaints alleging violations of freedom of association provides that the mandate of the Committee on Freedom of Association (CFA) “consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions.” The Governing Body has regularly approved this mandate and in 2009 decided to include it in the Compendium of rules applicable to the Governing Body. The function of the CFA is not to formulate general conclusions concerning the trade union situation in particular countries on the basis of vague general statements, but simply to evaluate specific allegations relating to compliance with the principles of freedom of association. The object of the CFA complaint procedure is not to criticize governments, but rather to engage in a constructive tripartite dialogue to promote respect for trade union rights in law and practice.
To make a complaint to the Committee, certain conditions of receivability have to be met. The complainant must indicate clearly that the complaint is made to the Committee on Freedom of Association; the complaint must be made by an employers’ or workers’ organization; it must be made in writing and signed by the representative of a body entitled to make a complaint. Non-governmental organizations having consultative status with the ILO are also entitled to make complaints. In terms of substance, the allegations contained in the complaint must not be of a purely political nature; they must be set out clearly and duly supported with evidence. It is not necessary to have exhausted all the national procedures, but the CFA may take into account the fact that a case is under examination by a national jurisdiction. The CFA meets three times a year in the week preceding the sessions of the Governing Body.
National tripartite mechanisms for the prevention and settlement of disputes relating to international labour standards promoted by the ILO
For many years, the ILO has been promoting national tripartite mechanisms in Latin America for the prevention and settlement of disputes relating to international labour standards, and particularly concerning freedom of association and collective bargaining, at the request of governments against which complaints have been made to the Committee on Freedom of Association. The ILO supervisory bodies have noted and/or supported the use of such mechanisms and have encouraged the Office to continue promoting their appropriate development.
These mechanisms have proved to be very useful in preventing and resolving many disputes relating to freedom of association, and have sometimes offered a framework for the conclusion of collective agreements. Colombia and Panama have created commissions of this type with encouraging results. In the Dominican Republic, it was decided to create a round-table, the responsibilities of which include the prevention and appropriate treatment of any dispute relating to the application of ratified ILO Conventions with a view to finding solutions and reaching agreements. Experience shows that the following criteria lead to the effective operation of such bodies:
– Ministries of Labour have to allocate the necessary human and financial resources for the coordination of the work of conciliation mechanisms, and it should be possible to coordinate with and invite other ministries and public institutions to participate in the meetings held to deal with the cases under examination;
– acceptance of the mediation mechanism must be based on tripartite agreement;
– the most representative organizations of employers and workers and the government should nominate a permanent national mediator/moderator who has the confidence of all the parties;
– the conciliation proposals and conclusions adopted in the context of this procedure must be based on the relevant international labour standards and take into account the comments of the supervisory bodies;
– a follow-up mechanism for the agreements concluded should be established to reinforce the confidence of the parties in the mechanism;
– the members of mediation mechanisms should also receive special training on international labour standards and the ILO supervisory system;
– the conciliation procedure must be free of charge and optional, and should not prevent recourse to the ILO supervisory bodies.
There can be no doubt that the international community has found in these mechanisms another tool to reinforce social dialogue. The challenge is to “export” these bodies beyond Latin America. The initiative responds to a modern trend in the permanent quest for the full application of international labour standards