4. Complaints Regarding Freedom of Association – The Committee on Freedom of Association
The ILO’s Committee on Freedom of Association (CFA) was set up in 1951 to examine violations of workers’ and employers’ organizing rights. The Committee is tripartite and handles complaints in ILO Member States, whether or not they have ratified conventions guaranteeing the right to freedom of association. The Committee has examined over 3300 cases since its creation in 1951.
Individual victims are not permitted to file complaints before the Committee. Rather, the complainant must be a government or an organisation of workers or employers. Therefore, individuals who are unable to find an organisation willing to submit a complaint on their behalf will be unable to resort to this mechanism.
Who can file a complaint?
Complaints must be submitted by organisations of workers, organisations of employers, or governments. In addition, complaints are valid only if they are submitted by one of the following:
- A national organisation directly interested in the matter – although the ILO in some cases may consider applications that are not endorsed by a national union.
- The Committee has full freedom to decide whether an organisation is an employers’ or workers’ organisation under the meaning of the ILO Constitution. The Committee is not bound by national definitions of the term.
- Complaints are not rejected merely because the government has dissolved or has proposed to dissolve the complainant organisation, or because the person or persons making the complaint have taken refuge abroad.
The fact that a trade union has not deposited its by-laws, or that an organisation has not been officially recognized is not sufficient to reject their complaints, in accordance with the principle of freedom of association. 1
If no precise information is available regarding the complainant organisation, the ILO may request the organisation furnishes “information on the size of its membership, its statutes, its national or international affiliations and any other information calculated, in any examination of the admissibility of the complaint, to lead to a better appreciation of the precise nature of the complainant organisation”. 2
Hence a complaint can be submitted by:
- An international organisation of employers or workers having consultative status with the ILO.
- Another international organisation of employers or workers, where the allegations relate to matters directly affecting their affiliated organisations.
- The Committee will consider anonymous complaints from persons who fear reprisals only where the Director-General, after examining the complaint, determines that the complaint “contains allegations of some degree of gravity which have not previously been examined by the Committee”. 3 The Committee can then decide what action, if any, to take regarding the complaint.
Under what conditions?
The mandate of the Committee is very specific and a complaint must relate to infringements of freedom of association / trade union rights only. It is not necessary that the state against which the complaint is lodged has ratified the relevant freedom of association conventions. Solely by membership to the ILO, each Member State is bound to respect a certain number of core principles, including the principles of freedom of association, which are enumerated in the Preamble of the ILO Constitution.
For example, there have been six cases filed with the Committee on Freedom of Association against China, even though China has ratified neither Convention No. 87 nor No. 98. All six of the complaints have been filed by the International Confederation of Free Trade Unions (ICFTU). One of the complaints was filed jointly with the International Metalworkers’ Federation (IMF).
There is no specific deadline for when to submit complaints each year, as the Committee meets three times annually. The average time it takes to process a complaint is around 11 months, the equivalent of three sessions.
(Non) exhaustion of domestic remedies
You are not required to exhaust domestic remedies before filing a freedom of association complaint. However, if national remedies or appeals procedures are available to you and have not been utilised, the Committee will take this into account when examining the complaint. If there is a case pending before a national court, the Committee will often wait before giving a recommendation or issuing a generic statement highlighting the importance of meeting due process requirements (such as impartiality and independence) for judicial procedures at the national level. In some cases, while awaiting the national decision, it may remind the relevant country of its international obligations under the ILO principles on freedom of association. 4
Time limits for complaints
Although there is no established time limit or “statute of limitations” for filing these complaints, the Committee has recognized that “it may be difficult – if not impossible – for a government to reply in detail to allegations regarding matters which occurred a long time ago”. 5 Furthermore, because the Committee is concerned with ensuring that freedom of association rights are respected and is not concerned with levelling charges against governments or providing financial remedies, complaints regarding situations that occurred in the past, which a government is probably not going to be able to remedy, are unlikely to result in any direct action by the Committee.
Process and outcome
Complaints can be filed directly with the ILO. For non-Member States of the ILO, 6 complaints can also be filed with the United Nations, which will forward to the economic and Social Council to the ILO. 7 This situation remains exceptional.
The Committee on Freedom of Association (CFA) is responsible for examining complaints. The CFA consists of an independent chairperson and three representatives each from the government members, employers, and workers groups.
The Committee meets three times a year. It examines complaints and makes one of the following recommendations to the Governing Body of the ILO:
- The complaint requires no further examination;
- That the Governing Body should draw the attention of the government concerned to the problems that have been found, and invite it to take the appropriate measures to resolve them;
- That the Governing Body should endeavour to obtain the agreement of the government concerned for the complaint to be referred to the Fact-Finding and Conciliation Commission. 8
After submitting a complaint, complainants have one month to send additional information related to the complaint. If the complaint is sufficiently substantiated, the ILO Director-General will communicate the complaint to the government concerned and will ask the government to submit observations.
If a government does not reply within a reasonable period of time (approximately one year), and after having sent an urgent appeal to the government, the Committee will inform the relevant government that the case will be examined without its reply. As it is in the government’s interest to defend itself, they usually issue observations. 9
The ILO commitments are binding on states rather than on private parties, hence the Committee considers whether, in each particular case, the government has ensured the free exercise of trade union rights within its territory. The ILO considers that its function is to secure and promote the right of association for workers and employers. It does not level charges or condemn governments, but rather makes recommendations.
All of the Committee’s reports are published on the Committee on Freedom of Association website 10 . Therefore, even if the Governing Body does not take strong action in the case, the complaint and the Committee’s recommendations are made public and can be used to draw attention to the situation in question.
In cases where there are serious violations, the ILO may choose, at any stage in the process, to send a representative to the country concerned. It is most likely to do this when difficulties have been encountered in communicating with the government concerned or when there is a complete contradiction between the allegations made and the government’s response. This procedure, known as the ’direct contact’ method, may only be used at the invitation of the government concerned or with the consent of the government. The objective of ’direct contact’ is to obtain direct information from the parties concerned, and if possible, to propose solutions to existing problems. 11 This procedure can present challenges, however; for example, in 2009 the ILO “direct contact mission” on freedom of association was forced to leave Fiji without having completed its mandate. 12
In order to obtain more information on the case, the Committee may also decide to hold consultations in order to hear the parties, or one of them, during one of the Committee’s sessions. 13
Fact-finding and conciliation Commission on freedom of Association
The Fact-Finding and Conciliation Commission on Freedom of Association (mentioned above) examines complaints referred to it by the Governing Body. This Commission is used only rarely: as of 2020, it had published six case reports since its inception in 1950. 14 The Commission is essentially a fact-finding body, but it may also work with the concerned government to come to an acceptable agreement for addressing the complaint. The Commission’s procedure is determined on a case-by-case basis, but it typically includes the hearing of witnesses and a visit to the country concerned. The Commission provides traditional procedural, oral and written guarantees.
The Committee on freedom of Association in action
General confederation of Peruvian workers against Jockey club del Peru
On 8 September 2004, the General Confederation of Peruvian Workers (CGTP) filed a complaint alleging that the enterprise Jockey Club del Perú had removed 34 unionised permanent workers, including three trade union leaders, and had replaced them with temporary workers. The complaint alleged that the enterprise had taken these actions in order to undermine the union and destroy its leadership. The enterprise cited financial reasons for the move which stood in violation of Peruvian legislation that permits such action only as a result of technical advances, not for financial reasons. The enterprise had considerable financial resources and political influence, hence, the CGTP feared they would apply pressure to obtain a ruling in its favour. Therefore, CGTP filed a complaint with the Committee on Freedom of Association.
According to the Government, the employer had submitted a request on 13 August 2004 to terminate the employment contracts of workers for financial reasons. On 30 September 2004 the government rejected the enterprise’s request for the collective termination of the workers contracts on the basis of the reason cited for the dismissals, since such action was not permitted for financial reasons. The Government also called for the immediate resumption of work and the payment of unpaid wages to the dismissed workers. The Union of Workers of the Jockey Club del Perú and the enterprise concluded an agreement in which the enterprise agreed from 16 November 2004 to reinstate the workers and the parties undertook negotiations to reach an agreement on the outstanding wages.
In light of the ruling issued by the Peruvian government concerning the enterprise’s request to dismiss the workers, and considering the union agreement concluded with the enterprise, the Committee recommended that the case did not require any further examination. 15
Freedom of association complaint against China
In 2002 and 2003, the International Confederation of Free Trade Unions (ICFTU) and the International Metalworkers’ Federation (IMF) filed a complaint against the People’s Republic of China for violations of freedom of association. The complaint alleged “repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers’ organisations in Heilongjiang, Liaoning and Sichuan Provinces”, 16 in connection with events that occurred in March 2002.
The Committee requested the government to institute impartial and independent investigations into the allegations, to provide specific information on the whereabouts, treatment and charges brought against trade union leaders. The Committee requested that law enforcement workers be trained to reduce the threat of excessive violence when exercising crowd control during demonstrations. 17
Complaints against the Government of the United states presented by the American federation of labor and the congress of Industrial organisations (Afl-CIo) and the confederation of mexican workers (CTM) 18
The case concerned a Supreme Court decision (Hoffman Plastic Compounds v. National Labor Relations Board) which led to millions of migrant workers losing the only available protection of freedom of association right. The Confederation of Mexican Workers (CTM) submitted a complaint (30 October 2002) on the issue on behalf of its 5.5 million members who have close family and labour ties with Mexican workers working abroad and whose rights are directly and indirectly affected by the decision. “The Hoffman decision and the continuing failure of the United States administration and Congress to enact legislation to correct such discrimination puts the United States squarely in violation of its obligations under ILO principles on freedom of association from a Human Rights and labour rights perspective, workers’ immigration status does not diminish or condition their status as workers holding fundamental rights. 19
ILO Convention No. 87 protects the right of workers ’without distinction whatsoever’ to establish and join organisations of their own choosing. The Committee notes that the allegations in this case refer to the consequences for the freedom of association rights of millions of workers in the United States following the United States Supreme Court ruling that, because of his immigration status, an undocumented worker was not entitled to back pay for lost wages after having been illegally dismissed for exercising the trade union rights protected by the National Labour Relations Act (NLRA).
” The Committee’s recommendations were:
- The US government should explore all possible solutions, including amending the legislation to bring it into conformity with freedom of association principles.
- The aforementioned should be done in full consultation with the social partners concerned in order to ensure effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision.
- The Government is asked to inform the Committee of the measures taken in this regard. Unfortunately, it seems that the report of the Committee was not followed by any enforcement mandate or apparent strategy to pursue justice on this matter. The situation of migrant workers (notably Mexican workers) is still precarious and remains a highly politicized issue.
The Committee on Freedom of Association has several advantages for victims of violations of trade union rights. First, the Committee appears to give a thorough evaluation of all eligible cases it receives. As mentioned, it has examined over 3300 cases. Second, it does not require that the defendant state has ratified the relevant conventions – it requires only that the state be a member of the ILO. Third, because the Committee’s reports to the Governing Body are made public on the website, a complaint with the Committee may be a good way to draw attention to a particular case. Finally, victims are not required to exhaust domestic remedies before filing a complaint with the Committee, which may provide an advantage in situations that are time-sensitive or where resorts to national remedies are expensive or appear unlikely to achieve a satisfactory result.
However, it is important to note that the ILO’s function is to secure and promote workers and employers right’ to organise, not to level charges or condemn governments. It does not provide financial reparations to victims, although it may work with the government concerned to see that workers are reinstated in their posts and that their trade union rights are protected. Therefore, the Committee is a good mechanism for victims who want help to remedy an ongoing situation. It is not a good mechanism for those who have been harmed by a failure to effectively secure trade union rights in the past. Trade unions and civil society organisations should use the Committee’s conclusions which are favourable to workers as tools to pressure governments.