Law 337 Lesson 7
Right to Organise and Collective Bargaining Convention (No. 98)
Article 1
1. Workers shall enjoy adequate protection against acts of antiunion
discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated
to:
(a) make the employment of a worker subject to the condition that he shall
not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union
membership or because of participation in union activities outside working
hours or, with the consent of the employer, within working hours.
• Protection of the right to join and participate in a trade union
Article 2
1. Workers’ and employers’ organisations shall enjoy adequate protection
against any acts of interference by each other or each other’s agents or
members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of
workers’ organisations under the domination of employers or employers’
organisations, or to support workers’ organisations….
• Intergral to collective bargaining is independent organisations.
Article 3
Machinery appropriate to national conditions shall be established, where
necessary, for the purpose of ensuring respect for the right to organise as
defined in the preceding Articles.
• Implementation of the Convention(Legisaltion/infrastructure/policy)
Article 4
Measures appropriate to national conditions shall be taken, where necessary,
to encourage and promote the full development and utilization of machinery
for voluntary negotiation between employers or employers’ organisations and
workers’ organisations, with a view to the regulation of terms and conditions
of employment by means of collective agreements.
(The voluntary nature of collective bargaining is explicitly laid down
in Article 4 of Convention No. 98 and, according to the Committee on
Freedom of Association, is "a fundamental aspect of the principles of
freedom of association" (ILO, 1996a, para. 844). Thus, the obligation
to promote collective bargaining excludes recourse to measures of
compulsion.)
• What is the role of the state?
Article 5
1. The extent to which the guarantees provided for in this Convention shall
apply to the armed forces and the police shall be determined by national laws
or regulations.
2. In accordance with the principle set forth in paragraph 8 of Article 19 of the
Constitution of the International Labour Organisation the ratification of this
Convention by any Member shall not be deemed to affect any existing law,
award, custom or agreement in virtue of which members of the armed forces
or the police enjoy any right guaranteed by this Convention.
Why do you think this is left to the member state?
Article 4-6
Convention No. 98 (in Articles 4-6) establishes the relationship between
collective bargaining and the conclusion of collective agreements for the
regulation of terms and conditions of employment.
It provides that "the extent to which the guarantees provided for in this
Convention shall apply to the armed forces and the police shall be determined
by national laws or regulations", and also states that "this Convention does
not deal with the position of public servants engaged in the administration of
the State, nor shall it be construed as prejudicing their rights or status in any
way"
Nevertheless, although the range of subjects which can be negotiated and
their content is very broad, they are not absolute and need to be clearly
related to conditions of work and employment or, in other words, matters
which are primarily or essentially questions relating to conditions of
employment
Moreover, the supervisory bodies allow the exclusion from the subjects
covered by negotiation of matters which are for the employer to decide upon
as part of the freedom to manage the enterprise, such as the assignment of
duties and appointments.
They also allow the prohibition of certain clauses, such as discriminatory
clauses, clauses of trade union security, or clauses which are contrary to the
minimum standards of protection set out in the law.
Conclusion (Important Points)
• The right to collective bargaining is a fundamental right endorsed by the
members of the ILO in joining the Organization, which they have an
obligation to respect, to promote and to realize, in good faith (ILO
Declaration on Fundamental Principles and Rights at Work and its
Follow-up).
• Collective bargaining is a right of employers and their organizations, on
the one hand, and organizations of workers, on the other hand (first-
level trade unions, federations and confederations); only in the absence
of these latter organizations may representatives of the workers
concerned conclude collective agreements.
• The right to collective bargaining should be recognized throughout the
private and public sectors, and it is only the armed forces, the police
and public servants engaged in the administration of the State who may
be excluded from the exercise thereof (Convention No. 98).12
•
The purpose of collective bargaining is the regulation of terms and
conditions of employment, in a broad sense, and the relations between
the parties.
• Collective agreements should be binding. It must be possible to
determine terms and conditions of employment which are more
favourable than those established by law and preference must not be
given to individual contracts over collective agreements, except where
more favourable provisions are contained in individual contracts.
• To be effective, the exercise of the right to collective bargaining requires
that workers' organizations are independent and not "under the control
of employers or employers' organizations" and that the process of
collective bargaining can proceed without undue interference by the
authorities.
• The principle of good faith in collective bargaining implies recognizing
representative organizations, endeavouring to reach an agreement,
engaging
• in genuine and constructive negotiations, avoiding unjustified delays in
negotiation and mutually respecting the commitments entered into,
taking into account the results of negotiations in good faith.
• Interventions by the legislative or administrative authorities which have
the effect of annulling or modifying the content of freely concluded
collective agreements, including wage clauses, are contrary to the
principle of voluntary collective bargaining.
