Compilation of decisions of the Committee on Freedom of Association

Protection against discrimination13

Forms of discrimination

Discriminatory dismissal

1. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.

1. Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.

1. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the workers trade union membership or activities.

1. In cases of anti-union dismissals, newly established enterprise level unions are likely to suffer adverse consequences threatening their very existence, if their entire leadership and a large part of their membership is dismissed.

1. Where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons who could be affected by such measures.

1. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

1. In certain cases, the Committee has found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of members of their union committee.

1. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.

1. The application of staff reduction programmes must not be used to carry out acts of anti-union discrimination.

1. A corporate restructuring should not directly or indirectly threaten unionized workers and their organizations.

1. It is not within the Committees purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference.

1. The liquidation of a company and the fact that the legal person under which the company operated has ceased to exist should not be used as a pretext for anti-union discrimination nor should they be an obstacle to the competent authorities determining whether or not there were acts of anti-union discrimination and, if such practices are shown to have taken place, to sanctioning such illegal acts and ensuring that the affected workers are duly compensated.

1. In the Committees opinion, the bipartite talks and the administrative procedure of permission to dismiss do not guarantee adequate protection to workers against acts of anti-union discrimination, since it appears that the legislation currently in force allows an employer merely to invoke lack of harmony in the working relationship to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association.