WORKING PAPERS

The Human Right to Bargain Collectively: A Review of Documents Supporting the International Consensus

by

Roy J. Adams

WORKING PAPER NO. 1

SOCIETY FOR THE PROMOTION OF HUMAN RIGHTS IN EMPLOYMENT

BOX 332, McMASTER UNIVERSITY

HAMILTON, CANADA, L8S 1CO

DECEMBER 1998

 According to a wide range of international agreements and understandings, human rights are rights that adhere to all human beings simply as a function of their humanity. As such, human rights cannot be granted nor taken away by legislation. They are rights that all individuals, nations, institutions and actors have a moral obligation to respect and promote.

 Early in the 1990s the United Nations undertook a reassessment of its mandate. It decided that, with the end of the Cold War, more emphasis should be given to the social policy agenda in order to secure peace and prosperity. Towards that end it organized a set of five world conferences including the 1993 World Conference on Human Rights, the 1995 World Summit for Social Development and the 1995 World Conference on Women. These conferences strongly reaffirmed support for core labor rights as human rights among them the right to organize and bargain collectively.

 The final document  of the World Conference on Human Rights, known as the Vienna Declaration, was intended to update the Universal Declaration of Human Rights the most definitive international human rights document. The Declaration first laid out consensus principles regarding human rights:

"The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question. . .

Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments. . .

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms."

 With respect to labor rights the Vienna Declaration contained the following clause:

"The World Conference on Human Rights supports all measures by the United Nations and its relevant specialized agencies to ensure the effective promotion and protection of trade union rights, as stipulated in the International Covenant on Economic, Social and Cultural Rights and other relevant international instruments. It calls on all States to abide fully by their obligations in this regard contained in international instruments."

 The Declaration was approved by 171 countries.

 The International Covenant on Economic, Social and Cultural Rights, to which the Vienna Declaration refers, discusses trade union rights in more detail as follows:

"The States Parties to the present Covenant undertake to ensure: 

(a)  the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessaryin a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; 

(b)  the right of trade unions to establish national federations or confederations and the right of the latter to form or join international tradeunion organizations;

(c)  the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and  freedoms of others; 

(d)  the right to strike, provided that it is exercised in conformity with the laws of the particular country."

 Trade union rights are also mentioned in the International Covenant on Civil and Political Rights:

"1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention."

 In short, freedom of association with specific reference to the right to form or join trade unions, is considered nearly universally to be a fundamental human right - both a political right and an economic and social right. Since there is a school of thought which holds that (contrary to the principles of human rights unity and indivisibility contained in the Vienna Declaration) political rights should be given priority over economic rights the observation that core labor rights are considered to be both political and economic rights is worth noting.

 Neither of the two UN covenants make specific mention of a right to bargain collectively. The International Labour Organization, however, (the most relevant "specialized agency" having to do with labor rights) mentions both freedom of association and the right to bargain collectively in its constitution to which all member countries are bound. A recent ILO publication notes:

"In 1944, the Constitution of the ILO was supplemented by the inclusion of the Declaration of Philadelphia, which reaffirmed 'the fundamental principles on which the Organization is based and, in particular, that freedom of expression and of association are essential to sustained progress.'" At the same time, the Declaration recognized the ILO's "solemn" obligation to further "the effective recognition of the right of collective bargaining, the cooperation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures." These constitutional principles are not dependent on ratification of standards. Instead, they "are applicable to all the member States of the Organization."

 The report goes on to say that:

"The ILO standards on trade union matters have been supplemented and developed by the principles enunciated by the supervisory bodies, in particular the Governing Body Committee on Freedom of Association and Fact-Finding and Conciliation Commission on Freedom of Association set up to examine complaints of violation of trade union rights. These decisions, which are not limited to the basic rules laid down by the Conventions on freedom of association. . . have progressively become a set of principles which, together with the observations formulated by the Committee of Experts concerning those same instruments, constitutes a veritable international law of freedom of association."

 The Committee on Freedom of Association systematically examines complaints containing allegations of violations of the Conventions on freedom of association, regardless of whether or not the countries concerned have ratified those instruments. "The Committee meets three times a year and has, since its establishment, examined nearly 1,800 cases, which are often of a very serious nature. In so doing, it has established a series of principles which constitutes a veritable international law on freedom of association." One of the principles established by the ILO committees is that: "The right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association..."

 In short, although member nations of the ILO may ratify conventions thereby making them legally applicable, even if a member nation has not ratified convention number 98 on the right to organize and bargain collectively it is still bound to recognize that fundamental human right as a result of the obligations that it accepted in consequence of its membership.

 In 1995 the ILO went further in making it explicit that a set of seven conventions referred to issues that had become universally recognized as fundamental human rights. Among them was the right to organize and bargain collectively. At its internet website the "ILO's fundamental human rights conventions" are identified as:
Freedom of Association and Protection of the Right to Organize (#87)
Right to Organize and Collective Bargaining Convention (#98)
Forced Labour Convention (#29)
Abolition of Forced Labour Convention (#105)
Discrimination (Employment and Occupation) Convention (#111)
Equal Remuneration Convention (#100)
Minimum Age Convention (#138)

 Fully cognizant of the ILO's action affirming collective bargaining as a fundamental human right the World Trade Organization in 1996 issued the following Ministerial Declaration on core labor rights: "We renew our commitment to the observance of internationally recognized core labour rights. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them."

 That commitment was more recently attested in the "Ministerial Declaration of San José" signed by ministers responsible for trade representing 34 countries of the Americas in March 1998.

 That labor rights should be recognized as fundamental human rights has also been acknowledged by the Organization for Economic Cooperation and Development. In a report recently approved by its directing body it states the core standards identified by the ILO:

"embody important human rights and . . . they derive from the Universal Declaration of Human Rights. The universality of these basic labor rights has been highlighted in the conclusions of the recent World Social Summit. In addition three United Nations acts (the Covenant on

Economic, Social and Cultural Rights, the Convenant on Civil and Political Rights and the Convention on the Rights of the Child), which contain relatively detailed provision on core labor standards, have been ratified by over 120 countries, suggesting that these standards receive nearuniversal adherence. It is also important to note that all countries which are members of the ILO subscribe to the principles of freedom of association and collective bargaining by virtue of their membership."

 In 1996, the International Organization of Employers (ILO), the major global voice of business on labor issues, came out in support of a new "solemn declaration" in support of the five core human rights in employment. That organization's initiative bore fruit during the summer of 1998 when the International Labour Conference of the ILO adopted, by a vote of 273-0 with 43 abstentions, a solemn Declaration of Fundamental Principles and Rights at Work. The declaration affirms that all members of the ILO have "an obligation arising from the very fact of membership. . . to respect, to promote and to realize in good faith" the following fundamental rights: "freedom of association, the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and the elimination of discrimination in respect of employment and occupation."All of the delegates from the nations identified above voted in favour of the resolution.

 In short, there is a strong international consensus, supported by organizations across a wide range of the political spectrum, which holds that collective bargaining should be recognized as a human right equivalent to other fundamental rights such as the right to vote and the right to free expression. If all human rights are interconnected, as the Vienna Declaration asserts, disrespect for this right by individuals, institutions, actors and governments must weaken the bedrock principles on which our democratic institutions are built.

References

Bamber, G.J., and R.D. Lansbury, eds., 1998, International and Comparative Employment Relations London: Sage.

Block, R.N., J. Beck and D.H. Kruger, 1996, Labor Law, Industrial Relations and Employee Choice, Kalamazoo, MI: W.E. Upjohn Institute.

Dannin, E.J., 1997, Working Free, The Origins and Impact of New Zealand's Employment Contracts Act, Auckland, New Zealand: Auckland University Press.

Howard, R.E. and J. Donnelly, eds., 1987, International Handbook of Human Rights, Westport, CT: Greenwood.

International Labour Organization, 1994, Freedom of Association and Collective Bargaining, Geneva, Switzerland: ILO.

Organization for Economic Cooperation and Development, 1996, Trade, Employment and Labour Standards, Paris, France: OECD.

Potter, E.E., 1984, Freedom of Association, the Right to Organize and Collective Bargaining, Washington, D.C.: Labor Policy Association.

von Prondzynski, F., 1987, Freedom of Association and Industrial Relations , London, U.K.: Mansell.

Wheeler, H., 1998, "Collective Bargaining as a Fundamental Human Right," Paper presented at a meeting of the Study Group on Industrial Relations Theory held in conjunction with the World Congress of the International Industrial Relations Association, Bologna, Italy, 26 September.