Compilation of decisions of the Committee on Freedom of Association

Protection against discrimination13

Organizations leaders and representatives

General principles

1. One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers organizations shall have the right to elect their representatives in full freedom.

1. The Committee has drawn attention to the Workers Representatives Convention (No. 135) and Recommendation (No. 143), 1971, in which it is expressly established that workers representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.

1. The principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances.

1. A deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities.

Blacklists

1. All practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices.

Dismissal of trade union leaders

1. The Committee has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct.

1. The dismissal of trade unionists for absence from work without the employers permission, for example, to attend a workers education course, does not appear in itself to constitute an infringement of freedom of association.

1. The Committee cannot accept that the failure to work on a non-workday should be considered a breach of labour discipline leading to the dismissal of trade union leaders.

1. In a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts.

1. In no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination.

1. A recommendation of the chairperson of a union in respect of an employers proposal is a legitimate act within the context of collective bargaining and should be protected as a legitimate trade union activity.

1. According to the findings of a court, one of the essential reasons for the dismissal of a trade union official was that he performed certain trade union activities in the employers time, using the personnel of the employer for trade union purposes and using his business position to exercise improper pressure on another employee all this without the consent of the employer. The Committee considered that, when trade union activities are carried on in this way, it is not possible for the person concerned to invoke the protection of Convention No. 98 or to contend that, in the event of dismissal, his legitimate trade union rights have been infringed.

1. In a case in which a trade union leader was dismissed and then reinstated a few days later, the Committee pointed out that the dismissal of trade union leaders by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing the free exercise of their trade union functions.

1. The dismissal of trade union officers on account of their trade union office or activities, even if they are subsequently reinstated, is contrary to Article 1 of Convention No. 98, and could, in cases where dismissal has been proven, amount to intimidation preventing the exercise of their trade union functions.

1. Especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union.

1. With regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action.

1. In cases involving a large number of dismissals of trade union leaders and other trade unionists, the Committee considered that it would be particularly desirable for the government to carry out an inquiry in order to establish the true reasons for the measures taken.