Freedom of association is a fundamental human right guaranteed by major international human rights standards, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and ILO conventions. Freedom of association is crucial to the functioning of a democracy and is an essential condition for the exercise of other human rights. In the human rights and business context, freedom of association is most frequently understood as the right of workers “to join organizations of their own choosing without previous authorization” (ILO Convention 87), which is a fundamental enabling right. It is a prerequisite for many other basic labour rights, as the ability of workers to organise allows them to use their collective power to achieve improved labour rights, health and safety at the workplace, the right not to be discriminated against and freedom from forced labour and child labour, amongst many others. The principle of freedom of association is at the core of the ILO’s values: it is enshrined in the ILO Constitution (1919), the ILO Declaration of Philadelphia (1944), and the ILO Declaration on Fundamental Principles and Rights at Work (1998). It is also a right proclaimed in the Universal Declaration of Human Rights (1948) and has been included in a number of voluntary initiatives such as the Ethical Trading Initiative Base Code.+ Read more
Nevertheless, there continue to be challenges in applying these principles despite clarity from international standards, the work of the ILO Committee on Freedom of Association, and other supervisory mechanisms that aim to ensure that this fundamental human right is respected the world over. In some states, certain categories of workers (for example public servants, seafarers, workers in export processing zones) are denied the right of association, workers’ organisations are illegally suspended or interfered with, and in extreme cases, trade unionists have been arrested or killed. As reported by International Trade Union Confederation (ITUC) in its Global Rights Index 2017, the number of states experiencing physical violence and threats against workers rose by 10% in just one year. Furthermore, attacks on union members such as threats, kidnappings and physical violence from state security forces and gangs working on behalf of companies, were documented in 59 states – a rise from 52 in the year before. Trade unionists were detained or arrested in 44 states, and dismissal and other discriminative behaviour was recorded in over 70. The situation is the worst for trade unionists in the Middle East and North Africa, where the very fact of being a trade unionist in many of the states in the region often makes the exercise of freedom of association impossible in practice. Moreover, the persistence of the kafala or sponsorship system systematically excludes millions of migrant workers from the right to freedom of association. Sub-Saharan Africa closely follows these trends, including the non-recognition of trade unions for collective bargaining. While trade unions in Europe benefit from a strong tradition of industrial relations, this position could be changing. For example, in 2017 the UK passed “the worst anti-union legislation”. Overall, in 2017, 84 out of 139 states covered by the index excluded certain types of workers from the right to freedom of association. Additionally, 116 states violated the right to strike in practice in various forms, including exclusion/restriction based on the objective and type of the strike, the imposition of compulsory arbitration and interference in strike action. [Global Rights Index 2017].
The Commentary to Guiding Principle 29 highlights that while the operational-level grievance mechanisms could complement the wider stakeholder engagement and collective bargaining processes, they cannot substitute for either. Moreover, “ they should not be used to undermine the role of legitimate trade unions in addressing labour-related disputes, nor to preclude access to judicial or other non-judicial grievance mechanisms.” Additionally, Guiding Principle 30 states that “[i]ndustry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards should ensure that effective grievance mechanisms are available”. The accompanying Commentary refers to trade unions, and is therefore premised on freedom of association existing. While employers are not required to take on an active role in supporting worker’s efforts to associate or organise, they must ensure that workers can exercise this right in a climate free of violence, pressure, fear and threats. Businesses can seek specific guidance and assistance on this from the ILO Helpdesk. This could be of particular help in circumstances where there are no adequate laws in place, or those that are do not meet international standards, but a business would nonetheless like to create policies that responsibly respect the right to freedom of association.
While some businesses take steps to ensure freedom of association, they are still too few and far between. Still, it is important to note some positive steps by businesses, such as those entering into International Framework Agreements. These agreements are formed between multinational companies and a Global Union Federation (GUF) in order to establish “an ongoing relationship between the parties and ensure that the company respects the same standards in all the countries where it operates”.