What is Freedom of Association?
Freedom of association entails respect for the right of employers and workers to freely and voluntarily establish and join organizations of their own choice, according to the International Labour Organization (ILO). These organizations have the right to carry out their activities in full freedom and without interference. Employers should not interfere in workers’ decisions to associate or discriminate against either those workers who choose to associate or those who act as their representatives. The Government should not interfere in the right of either workers or employers to form associations.
The right of workers to bargain freely with employers is an essential element in freedom of association. Collective bargaining is a voluntary process through which employers and workers discuss and negotiate their relations, in particular terms and conditions of work. It can involve employers directly (or as represented through their organizations) and trade unions or, in their absence, representatives freely designated by the workers. Although freedom of association and collective bargaining are significantly inter-connected, this issue focuses primarily on the right to freedom of association.
What is the Dilemma?
The dilemma for business is how to respect the right to freedom of association when its operations, business partners or suppliers are based in countries where such rights may be restricted in law and/or practice. Even if workers formally enjoy the right to freely associate, they can still face a range of practical barriers, including discrimination, informal restrictions, intimidation and even violence. If companies restrict workers’ rights to form or join a union or workers’ organization, it is likely that other rights are also impacted. This could result in labour rights violations, such as greater safety and health risks, discriminatory practices or the use of forced labour, leading to operational, financial and legal risks for companies.
Global Overview and Trends on Freedom of Association
In some countries workers are denied the right to associate, workers’ and employers’ organizations are illegally suspended or interfered with, and in some cases, trade unionists are arrested or killed. Companies face significant challenges in ensuring freedom of association in countries where such rights may not be recognized in law or practice.
According to the ILO, unions play a key role in the quest to achieve better remuneration and working conditions. Union membership combined with unions’ bargaining power has a significant impact on workers’ conditions and directly impact stability, labour market governance and the economy as a whole. The latest available OECD data suggests that the average degree of trade union density — the proportion of paid workers who are union members — in OECD countries in 2019 was around 16%. There is a substantial variation between OECD countries, some of which are highly unionized, such as Denmark (66.5%) and Sweden (64.9%), and others that have much lower unionization rates, such as the United States (10.1%). In some countries, such as France, union density is low (8.8%) but the social dialogue mechanisms at the sectoral and national level are strong with a positive impact on the protection of workers’ rights.
Key trends include:
- The ILO reports that unionization has been severely affected by lockdowns and restrictive measures due to COVID-19. While unions generally welcomed their Governments’ COVID-19 responses, in many instances they expressed their dissatisfaction with the implementation of social dialogue mechanisms and the lack of trade union participation in decision-making processes.
- According to the International Trade Union Confederation (ITUC), there was an increase in the number of countries that impeded the registration of unions, from 89 in 2020 to 109 in 2021. In 2021, the Middle East and North Africa (MENA) continued to be the world’s worst region for unions, with continued dismantling of independent unions and prosecuting and sentencing of workers participating in strikes. The ITUC finds that the ten worst countries for working people in 2021 are Bangladesh, Belarus, Brazil, Colombia, Egypt, Honduras, Myanmar, The Philippines, Turkey and Zimbabwe.
- ITUC also identified a new trend of increasing levels of surveillance by Governments and companies of individuals, which is an ever-growing threat to human and labour rights. In 2021, some Governments continued their surveillance of prominent trade union leaders to instil fear and put pressure on independent unions and their members. Several scandals emerged over surveillance instigated by companies to track and frustrate union organizing efforts and strike actions.
- Migrant workers in the Gulf are particularly at risk of violations of the right to freedom of association as they are often excluded from labour protections. In addition, labour activists in these countries may also experience State repression. The ILO notes that most violations of trade unions’ rights during the COVID-19 crisis were reported to take place predominantly in the Arab States.
- According to the ILO, an increasing trend of casualization of the global workforce has had negative impacts on freedom of association. Casualization refers to a shift from full-time and permanent jobs to casual and contract positions that typically lack social protections and employment security. Workers in the informal sector, agency and self-employed workers typically face challenges in securing freedom of association rights.
Impacts on Businesses
Businesses can be impacted by restrictions to freedom of association in their operations and supply chains in multiple ways:
- Reputational and brand risk: With increasing public awareness and scrutiny of business operations, companies that fail to fulfil their responsibilities concerning the right to freedom of association incur a substantial reputational risk. Activist campaigns by civil society groups, non-governmental organizations (NGOs) and global unions have been successful at calling attention to reported restrictions to freedom of association by employers. This often results in damage to the brand and the company’s reputation.
- Financial risk: Scrutiny arising out of activist campaigns or negative press coverage of companies found to restrict workers’ or trade unions’ rights can impact consumer demand and result in loss of sales. Divestment and/or avoidance by investors and finance providers (many of which are increasingly applying environmental, social and governance (ESG) criteria to their decision-making) may result in reduced or more expensive access to capital.
- Legal risk: Companies operating in countries where the right to freedom of association is enshrined in national law may face legal risks if they are found to obstruct union activity or workers’ rights. Particularly in cases where union groups or workers are well organized and are prepared to resort to litigation, companies face exacerbated legal risks if linked to freedom of association violations.
- Operational risk: A failure to provide legitimate channels through which workers can articulate grievances and concerns can result in a breakdown in communications and acrimonious disputes impacting management and company productivity. High levels of employee turnover, resulting from existing grievances being unaddressed, can also undermine company productivity.
Several internal business reasons underpin why companies should support and encourage the realization of rights to freedom of association in their operations and in their supply chains. At the individual company level, respect for the right of workers to organize and good industrial relations in the workplace help to facilitate the development of social capital that enhances employee engagement and staff retention and thereby increases productivity and performance.
Impacts on Human Rights
Restrictions to the right to freedom of association have the potential to impact on a range of human rights, including but not limited to:
- Right to freedom of association (UDHR, Article 20; ICCPR, Article 22; ICESCR, Article 8): The right to freedom of association is a human right in and of itself. This includes the right to form and join trade unions for the protection of their interests as well as to participate in activities.
- Right to equality before the law, equal protection of the law and right of non-discrimination (UDHR, Article 2; ICCPR, Article 26): Trade unions pool workers’ resources, which can be used to defend their legal rights more effectively than each worker trying to bring a case on his or her own. Trade union activists can experience discrimination in the form of arbitrary dismissal, demotion or lack of access to promotions.
- Right to work (UDHR, Article 23; ICESCR, Article 6): The right to work includes a prohibition of arbitrary dismissal. However, trade union members in many countries are arbitrarily dismissed by employers because of trade union membership or collective bargaining activities. Trade union representatives can support workers in contesting a wrongful dismissal.
- Right to freedom of assembly (UDHR, Article 20; ICCPR, Article 21): The right enables workers and trade union members to peacefully undertake group demonstrations. In many countries, army, police or company security may interfere in workers’ exercise of their right to demonstrate, which in extreme circumstances may end in violence.
- Right to enjoy just and favourable conditions of work (UDHR, Article 23; ICESCR, Article 7): The right to enjoy just and favourable conditions at work encompasses a wage that enables families to enjoy the right to a decent standard of living and for parents to maintain reasonable working hours. In many countries where trade unions are not independent or present, these conditions are often not met.
Sustainable Development Goals (SDGs)
- Goal 8 (“Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”), Target 8.8: Protect labour rights and promote safe and secure working environments of all workers, including migrant workers, particularly women migrants, and those in precarious employment. Indicator 8.8.2 specifically pertains to freedom of association.
- Goal 16 (“Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”):
- Target 16.3: Promote the rule of law at the national and international levels, and ensure equal access to justice for all
- Target 16.6: Develop effective, accountable and transparent institutions at all levels
- Target 16.10: Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements
- Goal 5 (“Achieve gender equality and empower all women and girls”), Target 5.5: Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic, and public life
The following resources provide further information on how businesses can uphold freedom of association in their operations and supply chains:
- ILO, Freedom of Association and Development: This resource provides ideas for employers’ organizations on how to work together with trade unions, Governments and other relevant stakeholders to achieve sustainable development.
- ITUC, Global Rights Index 2021: Companies can use this resource to assess the risks to freedom of association globally and to identify the highest risk countries and regions. This report looks at specific themes in relation to workers’ rights, such as the right to strike, collective bargaining and access to justice, which enables companies to identify which issues are most pertinent to their country of operation.
- Ethical Trading Initiative, Freedom of Association in Company Supply Chains: This guide provides practical help to companies in identifying and understanding the impacts of their operations on freedom of association. It provides suggestions on how companies can drive change in their supply chains in terms of monitoring and protecting these rights.