Appendix III (2010)

Granting registration should not require obtaining prior authorisation from the public authorities for the establishment or running of a trade union and the law should not confer discretionary powers on the relevant authorities to decide whether or not an organisation meets all the conditions for registration.

There should not be a requirement for trade unions to obtain the consent of a central trade union organisation in order to be registered.

Registration procedures should not be too long; the CFA has found a period of one month to be reasonable.

Criteria for trade union recognition
The recognition of representative employers’ and workers’ organisations is essential to the promotion of collective bargaining.

Systems of collective bargaining with exclusive rights for the most representative union and those where it is possible for collective agreements to be concluded with several trade unions within a company are both compatible with the principles of freedom of association. The granting of exclusive rights to the most representative organisation should not mean that the existence of other unions is prohibited.

It is acceptable for legislation to establish a percentage in order to determine the threshold for the representativeness of organisations and grant certain privileges to the most representative organisations (in particular for collective bargaining purposes). Such criteria must be objective, precise and pre-established, in order to avoid any possibility of bias or abuse.

Employers should recognise for collective bargaining purposes the organisations representing workers employed by them.

However, where the law draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances.

In countries where a system of certification of the most representative trade union has been established this should be accompanied by certain safeguards: (a) that certification is to be made by an independent body; (b) the representative organisation should be chosen by a majority vote of the employees in the unit concerned; (c) the right to ask for a new election after a stipulated period in case an organisation fails to secure a sufficiently large number of votes and (d) the right of an organisation other than the certified organisation to demand a new election after a fixed period (often 12 months) has elapsed since the previous election.

• In relation to collective bargaining
  The imposition of a compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement conflicts with the principle of voluntary negotiation contained in Article 4 of ILO Convention 98.

  Recourse to compulsory arbitration where no agreement is reached through collective bargaining is permissible only in the context of essential services in the strict sense of the term (see below).

• In relation to strike action
  The imposition of compulsory arbitration to prevent strike action is contrary to the right of trade unions to freely organise their activities and could only be justified in some public services or in essential services in the strict sense of the term.

  Compulsory arbitration to end a collective labour dispute or a strike is acceptable if it is at the request of both parties involved in the dispute, or if the strike in question was restricted or banned, or in essential services in the strict sense of the term.

An obligation to give prior notice to the employer may be reasonable as is the obligation to observe a certain quorum amongst the workers and to take strike decisions by secret ballot. A statutory cooling off period may also be permitted provided it is designed to provide the parties with time to reflect and to allow a possible return to the bargaining table without having recourse to a strike.

Strikes of a purely political nature and strikes systematically decided a long time before negotiations take place do not fall within the principles of freedom of association. However unions should have recourse to protest strikes, including where these are aimed at criticising a government’s economic and social policies.

A ban on strikes related to recognition disputes is not in conformity with the principles of freedom of association.

The following may be considered essential services: hospital sector, electricity services, water supply services, telephone service, police and armed forces, fire services, public and private prison services, school catering and cleaning services and air traffic control.

Organisations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in searching for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general. Trade unions should be able to have recourse to protest strikes, including where these are aimed at criticising economic and social policies.

Registration of collective agreements
The registration of collective agreements is intended to give them compulsory force.

Any provisions which make the validity of collective agreements subject to the approval of the authorities are contrary to the principles of collective bargaining and of ILO Convention 98. Any provision requiring the approval of the appropriate authority should be limited to issues relating to a procedural flaw or situations where the collective agreement fails to conform to the minimum standards laid down by general labour legislation.