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Definition & Legal Instruments
Definition
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.
Legal Instruments
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. The right to freedom of association and collective bargaining is one of five fundamental rights and principles at work which member states have to promote irrespective of whether or not they have ratified the respective conventions.
- 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 freedom of association is included as one of the Ten Principles of the UN Global Compact: “Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining”. The four labour principles of the UN Global Compact are derived from the ILO Declaration on Fundamental Principles and Rights at Work.
These fundamental principles and rights at work have been affirmed and developed in the form of specific rights and obligations in International Labour Conventions and Recommendations and cover issues related to child labour, discrimination at work, forced labour and freedom of association and the right to collective bargaining.
Member States of the ILO have an obligation to uphold the freedom of association, even if they have not ratified the Conventions in question.
Regional and Domestic Legislation
Companies are increasingly subject to non-financial reporting and due diligence obligations in the jurisdictions in which they operate, which often include disclosures on their performance. There are several high-profile examples of national legislation that specifically mandate human rights-related reporting and other positive legal duties, including the United Kingdom Modern Slavery Act 2015, Australian Modern Slavery Act 2018, the California Transparency in Supply Chains Act 2010, the French Corporate Duty of Vigilance Law 2017, German Act on Corporate Due Diligence Obligations in Supply Chains 2021 and the Norwegian Transparency Act 2022.
Also, in 2021 the Netherlands submitted a Bill for Responsible and Sustainable International Business Conduct, and the European Commission announced its Corporate Sustainability Due Diligence Directive (CSDDD). This Directive is likely to come into force between 2025 and 2027 and will make human rights and environmental due diligence mandatory for larger companies.
These mandatory due diligence and disclosure laws require companies to publicly communicate their efforts to address actual and potential human rights impacts, including violations in relation to freedom of association. Failure to comply with these obligations leads to real legal risk for companies.