CHAPTER III
Substantive provisions of labour legislation:
Effective recognition of the right to collective bargaining
Introduction
Collective bargaining, which involves the negotiation and conclusion
of collective agreements, is the principal means by which employers and
workers’ organizations determine terms and conditions of employment.
Once workers’ and employers’ organizations have been freely
established, collective bargaining is therefore central to the exercise
of freedom of association and to systems of industrial relations. Over
the years, it has proven its worth as a democratic instrument for overcoming
conflicts of interests, thereby avoiding recourse to more obdurate forms
of industrial action, such as strikes. As a safety valve ensuring a peaceful,
cooperative and therefore more efficient labour market, it is therefore
a cornerstone of any advanced democracy and developed market economy.
The emphasis placed on collective bargaining in the ILO’s basic
human rights instruments and in the law and practice of the vast majority
of member States is testimony to its importance in a modern economy.
It also amounts to clear recognition of the principle that workers’ organizations
should, on behalf of their members, be able to negotiate terms and conditions
of employment with employers which are better than each worker could
achieve individually.
Collective bargaining is consequently a means of overcoming the initially
unequal bargaining power of individual workers vis-à-vis their
employers through the negotiation of collective agreements, which supersede
the conditions set out in individual contracts of employment. In return,
employers can expect improved productivity and greater loyalty from a
more highly motivated and skilled workforce enjoying better working conditions.
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International protection and promotion of collective bargaining
The promotion of collective bargaining is one of the central and most
important concerns of the ILO.1 As is recognized by the Declaration of Philadelphia,
the ILO has a "solemn obligation ... to further among the nations of
the world programmes which will achieve ... the effective recognition
of the right of collective bargaining, the cooperation of management
and labour in the continuous improvement of productive efficiency, and
the collaboration of workers and employers in the preparation and application
of social and economic measures."2
The importance of collective bargaining has recently been reaffirmed
by the ILO Declaration on Fundamental Principles and Rights at Work of
1998, according to which all the ILO’s member States, even if they
have not ratified the Conventions in question, have an obligation, arising
from the very fact of membership in the Organization, to respect,
to promote and to realize, in good faith and in accordance with the Constitution,
the principles concerning the fundamental rights including the effective
recognition of the right to collective bargaining (Paragraph 2 (a)
of the Declaration).
The right to collective bargaining is recognized and protected by several
ILO Conventions and Recommendations, in particular Convention No. 983 and the Collective
Bargaining Convention, 1981 (No. 154).4
The right to engage in collective bargaining is also recognized in some
other important international texts including the Inter-American Charter
of Social Guarantees (1948), the European Social Charter (1961) and the
European Community Charter of Fundamental Social Rights of Workers (1989).
The importance of the obligations laid down in these instruments cannot
be overemphasized, particularly as the institution of collective bargaining
comes under increasing pressure from recent economic and social developments.5
The primary objective of national policy in this field should be to
promote and encourage free and voluntary collective bargaining which
allows the parties the greatest possible autonomy, while establishing
a legal framework and an administrative structure to which they may have
recourse, on a voluntary basis and by mutual agreement, to facilitate
the conclusion of collective agreements.6
Convention No. 98 requires countries which ratify it to take:
Measures appropriate to national conditions (…),
where necessary, to encourage and promote the full development and
utilisation of machinery for voluntary negotiation between employers
or employers’ organisations and workers’ organisations,
with a view to the regulation of terms and conditions of employment
by means of collective agreements (Article 4).
Convention No. 154 provides more straightforwardly that "measures adapted
to national conditions shall be taken to promote collective bargaining" (Article
5, paragraph 1).
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The role of governments in promoting and securing the right to collective
bargaining
One of the primary means by which member States seek to comply with
this obligations is through the enactment of labour legislation, often
supported by other means, such as collective agreements, arbitration
awards, administrative rules and regulations, decrees and ministerial
orders.7 They also frequently establish of
administrative bodies to monitor observance of the respective legal obligations
and to provide conciliation and mediation services to assist the parties.
The degree to which it is appropriate to use legislation to promote
and develop collective bargaining, and the level of detail to be included
in legislation depends on national conditions, and particularly on the
strength or otherwise of the national tradition of collective bargaining.8 For example, depending on the context,
a government may consider it appropriate to enact detailed procedures
and mechanisms governing collective bargaining. In other cases, it may
simply be necessary to refer in a statutory provision to the right of
employers, their organizations, and trade unions to engage in collective
bargaining. Tailoring the level of regulation to suit national conditions
is critical. Just as the lack of a clear legislative framework can undermine
collective bargaining in some countries,9 over-regulation
can have a similar result in others.10
It is very widely recognized that the obligation to promote voluntary
negotiations with a view to the regulation of terms and conditions
of employment by means of collective agreements implies an obligation
to guarantee to the parties concerned the right to engage in collective
bargaining. Where national circumstances so require, it may also involve
the need to make provision for a certain number of ancillary legal
obligations so that the right to collective bargaining can be effectively
exercised in practice, including a duty under certain conditions to
recognize the party for collective bargaining purposes and to negotiate
with that party in good faith.
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The parties to whom the right to engage in collective
bargaining is to be guaranteed and the level at which it may take place11
The parties to collective bargaining
Under the relevant ILO Conventions, the right to engage in collective
bargaining applies to all workers' organizations and all employers
and their organizations,12 except to the extent that certain specific exclusions
are permitted and to any possible limitations related to the representative
character of an organization.
With regard to exclusions from this right, Conventions Nos. 98, 151
and 154 provide that the extent to which they apply to members of the armed
forces and the police may be determined by national laws or
regulations or national practice.13 This means that national laws
or regulations may apply these guarantees completely, partially or not
at all to members of the armed forces and the police and their organizations.
Moreover, Convention No. 98 explicitly provides that it does not deal
with the position of public servants engaged in the administration
of the State. This means that, while such persons enjoy the right
to organize by virtue of Convention No. 87, the guarantees set out in
Convention No. 98 do not extend to them, although Convention No. 98 does
provide that it must not be construed as prejudicing their rights or
status in any way.14
The ILO's supervisory bodies have found that these exclusions are to
be applied in a restrictive manner. In the case of public servants, the
Committee of Experts has drawn a distinction between, on the one hand,
public servants who by their functions are directly employed in the administration
of the State, who may be excluded from the scope of Convention No. 98,
and, on the other hand, all other persons employed by the government,
by public enterprises or by autonomous public institutions, who should
benefit from the guarantees set out in the Convention.15
A restrictive view should also be taken of the exclusions relating to
the police and the armed forces. For example, in one case the Committee
on Freedom of Association found that civil aviation technicians working
under the jurisdiction of the armed forces could not be considered, in
view of the nature of their functions, as belonging to the armed forces
and as such liable to be excluded from the guarantees set out in Convention
No. 98.16
The right of workers' organizations to bargain collectively is recognized
in the vast majority of countries in law or in practice, although this
right is often subject to the exclusions mentioned above.
National legislation sometimes explicitly defines the parties entitled
to bargain collectively and the level at which bargaining may take place. The
parties between whom bargaining may take place are typically defined
as workers' organizations (or trade unions) on the one hand and individual
employers, several employers negotiating jointly or organizations of
employers on the other.
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The levels at which collective bargaining may take
place
As regards the levels at which collective bargaining may take place
(such as the establishment, enterprise or branch of activity), there
is no generally accepted best level for bipartite collective
bargaining. The appropriate level or levels for bargaining depend on
the strength, interests, objectives and priorities of the parties concerned,
as well as the structure of the trade union movement, employers' organizations
and traditional patterns of industrial relations17.
Paragraph 4 the Collective Bargaining of Recommendation, (1981) No.
163, indicates that:
Measures adapted to national conditions should be taken,
if necessary, so that collective bargaining is possible at any level
whatsoever, including that of the establishment, the undertaking, the
branch of activity, the industry, or the regional or national levels.
Legislation that restricts the choice of the parties in this regard
may contravene Convention No. 9818 and
the principle that workers' and employers' organizations have the right
to organize their own activities and formulate their own programmes.19 On the other hand, legislation may establish
a framework for collective bargaining to which the parties may have recourse,
if they so wish.
 Example
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Recognition procedures and representativeness
Collective bargaining cannot occur unless the parties involved have
recognized one another for that purpose.20 Such recognition may be voluntary, as is the
case in some countries where it is based on agreements or a well-established
practice. However, to safeguard against the refusal by some employers
to negotiate with trade unions representing the employees concerned,
many countries have adopted legislation obliging employers to recognize
a trade union for collective bargaining purposes, subject to certain
conditions.21 In such
cases, the question of whether or not an employer is obliged to recognize
a trade union for this purpose normally depends on the definition established
of the representativeness of organizations in relation to those whom
they seek to represent.
At its simplest, a provision of this kind can identify who is responsible
for carrying out collective bargaining, thereby assisting the parties
involved to recognize one another.
Example
The determination of the representativeness of organizations
can be a difficult issue, particularly in countries where there exist
a multiplicity of trade unions and where bargaining generally takes places
at the enterprise level, but also in cases where bargaining takes place
at the industrial branch and national levels.22
Many countries have adopted legislation establishing procedures for
the determination of the representative status of a party for the purposes
of collective bargaining. It should be noted in this respect that, the
concept of most representative organizations is recognized,
for the purposes of representation in ILO bodies, by article 3, paragraph
5 of the ILO Constitution. However, the ILO's Committee of Experts has
indicated that, in order to avoid any opportunity for partiality or abuse,
where procedures of this kind exist, they should be based on objective
and pre-established criteria.23
Example
Finally, with regard to the representative status of organizations,
it should be noted that, while legislative provisions on this subject
often lay down quantitative criteria (in view of the desire for objectivity),
these provisions may also contain criteria such as authenticity, independence
and territorial scope.
Example
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Recognition of exclusive bargaining agents
In some countries, legislation makes provision for the recognition
of a trade union as an exclusive bargaining agent in a bargaining unit.
This allows the trade union concerned to represent all the employees
in the unit for collective bargaining purposes, to the exclusion of other
trade unions which may have members in the unit. Such legislation is
usually found in countries where collective bargaining takes place mainly
at the enterprise or establishment level and where the existence of trade
union multiplicity makes collective bargaining complex and difficult.
As there is a risk of this procedure being used to exclude from the collective
bargaining process organizations that are freely chosen by workers, the
ILO supervisory bodies have taken the view that where a statute provides
for the certification or designation of an exclusive bargaining agent,
certain safeguards should be included, namely:
- the certification of the organization should be made by an independent
body;
- the representative organization should be chosen by a majority vote
of the employees in the unit concerned;
- an organization which fails to secure a sufficiently large number
of votes in a trade union election should have the right to request
a new election after a stipulated period; and
- any new organization other than the certified organization should
have the right to demand a new election after a reasonable period has
elapsed since the previous election.25
Because of the need to provide for safeguards of this kind, legislation
respecting the recognition of exclusive bargaining agents tends to be
rather detailed and usually includes provisions regarding:
- the conditions under which the certification of an organization as
an exclusive bargaining agent can be requested;
- the criteria and procedure for defining a bargaining unit;
- the criteria and procedure for determining whether an organization
is sufficiently representative of the workers in the bargaining unit
to be certified as the exclusive bargaining agent;
- the legal effects of certification;
- the conditions for challenging and requesting revocation of the
status of an organization as the exclusive bargaining agent (usually
including a waiting period of at least 12 months to provide some stability
in bargaining relationships) and the procedure to be followed in such
cases;
- the authority responsible for administering these procedures (usually
an independent administrative body or the Ministry of Labour);
- the obligations of the duly certified exclusive bargaining agent
to represent of all the workers in the bargaining unit, whether or
not they are members in good standing of the certified organizations;
and
- the right of appeal against the decisions made and any violation
of the respective obligations.
Example
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Duty of fair representation by exclusive bargaining
agents
Legislation establishing the procedure for the certification of an
organization as an exclusive bargaining agent for all employees in a
bargaining unit normally imposes a duty on such agents to represent all
the employees fairly, whether or not they are members of the union.
Example
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Frameworks for collective bargaining at the industrial
branch level
In some cases, and particularly when public policy seeks to promote
collective bargaining at the industrial branch level, countries have
adopted legislative provisions establishing an institutional framework
for such bargaining. Such frameworks may simply rely on recognition procedures,
while others may establish an institutional structure that can be used
by parties wishing to bargain at this level.
Example
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A statutory duty to bargain in good faith
Effective collective bargaining involves the stimulation of dialogue
and the promotion of consensus.26 A number of countries have endeavoured to do
this by setting forth a statutory duty in the legislation intended to
oblige the parties at the bargaining table to engage in fully informed
negotiations. The ultimate purpose of this kind of duty is to ensure
that the parties have every possible opportunity to reach agreement.
In some instances, this duty is limited to a duty to negotiate, while
in others it is expressed as a duty to bargain in good faith.
In this respect, it should be recalled that the ILO Committee on Freedom
of Association has emphasized the importance that it attaches to the
principle that employers and trade unions should negotiate in good faith
and endeavour to reach an agreement, particularly in situations, such
as essential services, where trade unions are not allowed strike action.27
Example
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Duty to provide information for collective bargaining
purposes
One of the principal obligations arising out of the duty to bargain
in good faith is for the employer to provide the trade union with the
information required to be able to engage in meaningful negotiations
(see Recommendation No. 163, Paragraph 7(1)).28
Example
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The subject matter of collective bargaining
In line with the emphasis that is placed on voluntary bargaining and
the free choice of bargaining parties, international labour standards
establish a broad definition of collective bargaining and its subject
matter. Article 2 of Convention No. 154 defines collective bargaining
as extending to:
all negotiations which take place between an employer, a group
of employers or one or more employers' organizations, on the one
hand, and one or more workers' organizations, on the other, for (a)
determining working conditions and terms of employment; and/or (b)
regulating relations between employers and workers; and/or (c) regulating
relations between employers or their organizations and a workers'
organization or workers' organizations.
In line with the above, if it is considered necessary to define in law
the subject matter to which the right to bargaining collectively extends,
this should be defined broadly. In some countries, the case law (jurisprudence)
establishes a distinction between issues on which the parties are obliged
to negotiate, if one of the parties so requests, and issues on which
the parties may voluntarily negotiate if they so agree. Occasionally,
legislation establishes an obligation to include provisions in collective
agreements on specified matters, such as the settlement of disputes over
the interpretation and application of the agreement.
Example
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Collective agreements
Legislation on collective bargaining frequently includes provisions
regarding collective agreements themselves. These provisions tend to
cover such matters as:
- the form and content of collective agreements;
- the legal force of collective agreements and the parties on which
they are binding;
- the registration of collective agreements with a public body;
- the bringing of agreements to the notice of the workers to whom
they apply; and
- the extension of certain kinds of collective agreements.
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Form and content of collective agreements
Legislative provisions on this subject usually require agreements to
be in writing, indicate the parties to the agreement, be signed by representatives
of the parties and indicate the date on which they are to come into force.
They sometimes also require the parties to include provisions on certain
substantive issues, such as procedures for the settlement of disputes
arising out of the agreement.
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The legal force of agreements
In accordance with the Collective Agreements Recommendation, 1951 (
No. 91), Paragraph 3(1):
Collective agreements should bind the signatories thereto and
those on whose behalf the agreement is concluded. Employers and
workers bound by a collective agreement should not be able to include
in contracts of employment stipulations contrary to those contained
in the collective agreement.29
Legislative provisions on this subject generally state that collective
agreements are legally binding upon the parties thereto and on members
of any organization party to the agreement. Provisions are also often
included to the effect that the agreement is incorporated in or modifies
the terms of any contract or agreement in force or concluded subsequently
between the parties covered by the agreement.
Some jurisdictions require the parties to submit the collective agreement
to the public authorities for approval before it becomes valid.
Provisions of this kind are compatible with Convention No. 98, provided that
they merely stipulate that approval may be refused if the collective
agreement has a procedural flaw or does not conform to the minimum standards
laid down in the applicable legislation.30 However, the possibility of interference
in the right of the parties to engage freely in collective bargaining
arises if the authorities are allowed full discretion to reject an agreement,
which constitutes a violation of the principle of voluntary negotiations
and the autonomy of the parties.
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Registration of collective agreements with a public
body
This requirement is frequently imposed by legislation. It is intended
to allow the relevant public authorities to follow developments in collective
bargaining, determine whether there is any legal flaw in an agreement
and inform the parties thereof. It also means that the authorities concerned
can be better prepared to assist the parties in dealing with any disputes
arising out of the agreement or in later negotiations between the same
parties.
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Notification of collective agreements to workers covered
by them
National legislation sometimes requires employers to ensure that employees
are informed of the collective agreements applicable to them (see Recommendation
No. 91, Para. 8(1)).
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Extension of collective agreements
The practice of the extension of collective agreements to employers
and employees other than those to which they are directly applicable
is mainly found in countries in which industrial branch level collective
bargaining is prevalent. The legislation providing for this practice
normally sets out a number of conditions relating to the representativeness
of the parties to the agreement in relation to those to whom it would
be made applicable, the requirement of a prior request by one or both
of the parties to the agreement and the consultation of the representatives
of those to whom it is to be extended. Recommendation No. 91, Paragraph
5(2), indicates that:
National laws or regulations may make the extension of
a collective agreement subject to the following, among other, conditions:
(a) that the collective agreement already covers a number of the employers
and workers concerned which is, in the opinion of the competent authority,
sufficiently representative;
(b) that, as a general rule, the request for extension of the agreement
shall be made by one or more organisations of workers or employers who
are parties to the agreement;
(c) that, prior to the extension of the agreement, the employers and
workers to whom the agreement would be made applicable by its extension
should be given an opportunity to submit their observations.
Some of the examples given below cover a number of the above issues.
Examples are given of provisions relating to a single issue when they
are easily separable.
Example
(General)
Example
(Legal force)
Example
(Registration of collective agreements)
Example
(Notification of collective agreements)
Example
(Extension of collective agreements)
1. See for example, Promotion
of collective bargaining, International Labour Conference, 66th Session,
1980, p. 62.
2. Declaration of Philadelphia,
1944, Article III.
3. The importance of this Convention
is emphasized by the fact that, as of mid-2003, it had been ratified
by 153 member States, the second highest ratification rate of any ILO
convention.
4. Other relevant instruments include
the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87); the Collective Agreements Recommendation, 1951 (No. 91);
the Consultation (Industrial and National Levels) Recommendation, 1960
(No. 113); the Workers’ Representatives Convention (No. 135) and
Recommendation (No. 143), 1971; the Rural Workers’ Organisations
Convention (No. 141) and Recommendation (No. 149), 1975; the Labour Relations
(Public Service) Convention (No. 151) and Recommendation (No. 159), 1978;
and the Collective Bargaining Recommendation, 1981 (No. 163) (which supplements
Convention No. 154). For other Conventions and Recommendations relevant
to collective bargaining, see Collective bargaining: A fundamental
principle, a right, a Convention, Labour Education 1999/1-2,
Nos. 114-115, (ILO), p. 125.
5. See Gernigon, B, op. cit., p.
29.
6. General Survey of the Reports
on the Freedom of Association and the Right to Organize Convention
(No. 87), 1948 and the Right to Organize and Collective Bargaining
Convention (No. 98, 1949, Report III (Part 4B), (ILC, 81st Session,
1994), para. 247.
7. See, for example, the references
in Convention No. 154, Article 4.
8. For a recent discussion of the
extent to which different countries use legislation to promote collective
bargaining, see Casale, G., Collective bargaining and the law in Central
and Eastern Europe: Some comparative issues (ILO-CEET, Working Paper
No. 20, 1997).
9. See Bronstein, A. "Collective
bargaining: A comparative analysis" in Collective bargaining: a fundamental
principle, a right, a Convention, op. cit., p. 35.
10. See Rueda-Catry, M., Sepùlda
Malbràn, J.M., Vega Ruiz, M.L. "Many social sectors are today
demanding that trade unions work out a common position in the framework
of the social dialogue" in Collective bargaining: A fundamental
principle, a right, a Convention, op. cit., p. 53.
11. The right to collective bargaining
is closely linked to the right to organize and to strike (see Chapters
II and V).
12. Negotiations may also be conducted
with workers' representatives (rather than organizations), as indicated
in Convention No. 135 and Recommendation No. 143.
13. See Convention No. 98, Article
5, paragraph 1; Convention No. 151, Article 1, paragraph 3 and Convention
No. 154, Article 1, paragraph 2.
14. See Chapter II.
15. General Survey, para. 200.
16. Digest of decisions and
principles of the Freedom of Associaton Committee of the Governing
Body of the ILO, Fourth (revised) edition, (ILO, Geneva, 1996),
para. 805. In some countries, the members of the police and the armed
forces are entitled to engage in collective bargaining. See, for example,
the discussion of the case of the Czech Republic in Casale, op. cit.,
p. 14.
17. As Bamber notes, both centralized
and decentralized bargaining may have advantages and disadvantages, depending
on the context. See Bamber, op. cit., p. 434.
18. General Survey, para. 249.
19. Digest, para. 782.
20. Promotion of collective
bargaining, op. cit., p. 15.
21. General Survey, para. 240; Promotion
of collective bargaining, op. cit., p. 16.
22. A topic as complex as this
cannot be considered fully in these guidelines. However some of the more
important issues are addressed. For further consideration of the issues
involved see, for example, Bamber, G, et al, "Collective bargaining" in
Blanpain eds., Comparative labour law and industrial relations in
industrialised market economies, 6th and rev. ed., (Kluwer,
The Hague, 1998) p. 414; Casale, G., Union representativeness in
a comparative perspective, (ILO/CEET, Report No. 18, 1996).
23. General Survey, para. 240.
See also Paragraph 3(b) of Recommendation No. 163.
24. See Gérard Lyon-Caen
and Jean Pélissier, Droit du travail, 16th edition, 1992,
pp. 557-58 (para. 623).
25. General Survey, para. 240.
26. Bronstein, op. cit., p. 34.
27. Digest, para. 243.
28. Similar obligations exist
under other international instruments, such as the OECD Guidelines for Multinational Enterprises, 1976 and
the European Union Directive on European Works Councils,
1994.
29. See also Digest, para. 818.
30. General Survey, para. 251.
Updated by MB. Approved by AB. Last Updated
10 December 2001.
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