Definition & Legal Instruments

According to the ILO, the term “Freedom of Association” refers to the right of workers and employers to freely and voluntarily establish and join organizations of their own choice. Freedom of association is a fundamental human right proclaimed in the Universal Declaration of Human Rights and is important as:

• It is the enabling right to allow effective participation of non-State actors in economic and social policy, central to democracy and the rule of law. Ensuring that workers and employers have a voice and are represented is, therefore, essential for the effective functioning of not only labour markets but also overall governance structures in a country.
• The right of workers and employers to form and join organizations of their own choosing is an integral part of a free and open society. In many cases, these organizations have played a significant role in their countries’ democratic transformation.

Workers form unions so that they can engage in collective bargaining. The ILO defines collective bargaining as a voluntary process through which employers and workers discuss and negotiate their relations, in particular terms and conditions of work. Participants include employers themselves or their organizations, and trade unions or, in their absence, representatives freely designated by the workers.

• The ILO states that collective bargaining allows both sides to negotiate a fair employment relationship and prevents costly labour disputes. Typical issues on the bargaining agenda include wages, working time, training, occupational safety and health, as well as equal treatment.
• According to the ILO, countries with highly coordinated collective bargaining tend to have less inequality in wages, lower and less persistent unemployment, and fewer and shorter strikes than countries where collective bargaining is less established.

There are many international instruments that affirm and guarantee the right of freedom of association. Such instruments place requirements on States to protect and respect these rights.

• Freedom of association is considered a fundamental right at work under the ILO Declaration on Fundamental Principles and Rights at Work. The right of workers and employers to form and join organizations of their own choosing is also protected by two specific ILO conventions, Convention 87 and Convention 98. According to ILO standards, freedom of association and the right to organize is not only considered a labour right, but also a human right.
• As a human right, freedom of association is proclaimed in the Universal Declaration of Human Rights (UDHR) signed in 1948. Article 23(4) of the UDHR affirms the right to form and join trade unions.
• In addition, freedom of association is affirmed in article 22 of the International Covenant on Civil and Political Rights (ICCPR) and article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1966. Both provisions state that freedom of association, as a human right, includes the right to form and join trade unions to protect one’s interests. Restrictions on the right to associate freely are subject to strict conditions: any restrictions must be prescribed by law and must be necessary in a democratic society.
• Furthermore, the International Convention on the Protection of the Rights of All Migrant Workers pays extra attention to the case of migrant workers through explicitly recognizing the right to freedom of association in the case of migrant workers: migrant workers and members of their families have the right to join any trade union or any association.

The ILO has adopted two specific conventions on freedom of association. They are legally binding instruments, ratified and used by most countries as guidance to their own national laws. They are part of the eight ILO “fundamental” conventions covering subjects that are considered to be fundamental rights and principles at work. These two conventions outline the rights of workers and employers to form and join organizations of their own choice and to carry out their activities in full freedom and without interference.

• ILO Convention on Freedom of Association and Protection of the Right to Organise, No. 87 (1948)
• ILO Convention on the Right to Organise and Collective Bargaining, No.98 (1949)

These conventions have been ratified by most ILO Member States. This means that in most countries relevant national legislation should be in place to implement the terms of these international legal instruments. This, however, by no means ensures that the provision or enforcement of legal protection is of equal efficacy across all countries. In due diligence, it is, therefore, important to check the ratification status for particular countries as an indicator of potentially more limited state protections of freedom of association. All related labour standards on freedom of association can be found here.