Appendix 5.2 of the International Associations Statutes Series vol 1, UIA eds (1988)
The International Labour Organisation has as one of its major concerns the freedom of association and the right to organize. This concern is often perceived as being primarily focussed on the right of workers to form trade unions. In fact, as a consequence of the tripartite organization of ILO, any statements made in principle give equal weight to workers and to employers organizations. This is clear in the major ILO instrument on this matter adopted in 1948 - the Convention concerning Freedom of Association and the Right to Organise (in force 4 July 1950), which by 1st January 1986 had been signed by 97 states. The text is given below (1). Other conventions, on more specialized aspects of the question also exist: the 1921 Convention concerning the Rights of Association and Combination of Agricultural Workers (2), the 1947 Convention concerning the Right of Association and the Settlement of Labour Disputes in Non-Metropolitan Territories (3), the 1949 Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (4), the 1971 Convention concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking (5), the 1975 Convention concerning Organisations of Rural Workers and their Role in Economic and Social Development (6), the 1978 Convention concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service (7).
The Governing Body of ILO, at its 117th Session (November 1951), in fact set up a Committee on Freedom of Association which continues to meet regularly to hear complaints relating to infringements of the principles of the various conventions. The complaints and results are reported in the ILO Official Bulletin.
The question is to what extent are these instruments to be seen as relevant to the condition of international NGOs. It could be argued that instruments relating to organizations of "workers" and "employers" are too restrictive to apply to non-governmental organizeations in general. And yet Article 2 of the Convention below indicates ["Workers and employers, without distinction whatsoever, shall have the right to establish ... and to join organisations of their own choosing without previous authorisation."] And Article 5 provides that such organizations shall have the right to establish and join federations and confederations which have the right ["to affiliate with international organisations of workers and employers."]
The wording of the different conventions on freedom of association of course focuses primarily on the rights within countries and only implicitly on the rights to organize internationally. Recent proposals by the Commission of the European Communities (see [Appendix 5.3]), concerning the creation of commercial corporations at the European level, also provide for the creation of an association of employees representatives, a "European Works Council" for each such corporation. It would be interesting to clarify to what extent conventions of the International Labour Organisation, such as that on freedom of association, effectively provide for the creation of such organizations at the international rather than the national level. Independently of the EEC proposals, there are already a number of examples of "company councils" created by employees of multinational corporations such as Ford, Renault and FIAT.
Presumably neither trade unions nor employers organizations would care to see the conventional narrow definition of worker and employer diluted by any broader non-restrictive definition, as provided by the Convention. Nevertheless it would appear that this Convention could be considered, in the first instance, as relevant to trade associations and professional bodies of all kinds. Only those international NGOs which can in no way be considered as associations of workers or employers would then be excluded. With the development of the leisure industries, it would be an interesting exercise to clarify which organizations were so excluded, namely which organizations could be considered as neither an association of workers nor an association of employers. This would presumably be those which fall into the general category of "consumers", whether of products, services or experiences (including art and religion), in contrast to the producers of those products. Thus organizations of professional footballers, priests or professional artists could be considered a trade union, but it is unlikely that organizations of amateur footballers, parishioners or art gallery supporters could be so considered. It is also possible that current views would not restrict "worker" to those receiving payment. A politically interesting test case would be an association of housewives given current debates in economics concerning their role in the workforce. Equally interesting would be an association of voluntary community development workers.
Relevant to this question is the decision by the Council of the European Communities to require a broad definition of "trade union" or the French equivalent of "syndicat", at least insofar as the harmonization of national legislation concerning tax on corporate turnover is concerned (10). In the Committee on Value Added Tax of the EEC most Member States consider that the term "syndicat" has a broader significance and also covers professional groups which, without the intention of making a profit, undertake (for a membership fee) the representation and defence of the interests of their members, whether as "partenaires sociaux" or with respect to public authorities. This therefore includes organizations of owners, employers, or independents, as well as trade associations, chambers of commerce, agricultural organizations, etc. Where the activities are "au profit et dans l'interêt collectif" of its members, but are not directly related to the defence of its interests as such (other than in promoting its professional activity), the association is not then considered to have a "syndical" character. For tax purposes, the distinctions have been taken further in that an association, even one with a specifically "scientific" aim, may have some activities which can be considered "syndical" and therefore taxable. The implications of these distinctions have been discussed in detail for international associations based in Belgium (11). For tax purposes no distinction is made between employers and workers organizations.
Another consideration is also relevant, namely the economic function of associations, especially as employers in their own right (see also [Appendix 3.7], paras 14-18). As an example, on the occasion of the "2ème Assises Régionales de la Vie Associative" for the Provence/Alpes/Côtes d'Azur Region of France (Marseille, 1987) statistics were given indicating that, with its 800,000 employees, the association sector was the second employer in France, increasing at the rate of an additional 20,000 jobs per year, despite major reductions of 20 to 50% in subventions. An earlier estimate in 1983 gave 710,837 jobs (8) whose significance was discussed elsewhere (9, p. 62-65).
Convention concerning Freedom of Association and Protection of the Right to Organise
The General Conference of the International Labour Organisation,
Having been convened at San Francisco by the Governing Body of the International Labour Office, and having met in its Thirty-first Session on 17 June 1948;
Having decided to adopt, in the form of a Convention, certain proposals concerning freedom of association and protection of the right to organise, which is the seventh item on the agenda of the session;
Considering that the Preamble to the Constitution of the International Labour Organisation declares ["recognition of the principle of freedom of association"] to be a means of improving conditions of labour and of establishing peace;
Considering that the Declaration of Philadelphia reaffirms that ["freedom of expression and of association are essential to sustained progress"];
Considering that the International Labour Conference, at its Thirtieth Session, unanimously adopted the principles which should form the basis for international regulation;
Considering that the General Assembly of the United Nations, at its Second Session, endorsed these principles and requested the International Labour Organisation to continue every effort in order that it may be possible to adopt one or several international Conventions;
adopts this ninth day of July of the year one thousand nine hundred and forty-eight the following Convention, which may be cited as the Freedom of Association and Protection of the Right to Organise Convention, 1948:
Part I. Freedom of association
Art. 1 Each Member of the International Labour Organisation for which this convention is in force undertakes to give effect to the following provisions.
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
1. Workers' and employers' organisation shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their porgrammes.
2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.
Workers' and employers' organisations shall have the right to establish and join federation and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.
The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organisations.
The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof.
1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the policie enjoy any right guaranteed by this Convention.
In this Convention the term "organisation" means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
Part II. Protection on the right to organise
Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.
Part III. Miscellaneous provisions
Art.s 12 and 13 Declarations of applications to non-metropolitan territories...
Part IV. Final provision
Art.s 14-21 Standard final provisions...
1. International Labour Convention No. 87 (Came into force 4 July 1950)
2. International Labour Convention No. 11 (Came into force 11 May 1923)
3. International Labour Convention No. 84 (Came into force 1 July 1953)
4. International Labour Convention No. 98 (Came into force 18 July 1951)
5. International Labour Convention No. 135 (Came into force 30 June 1973)
6. International Labour Convention No. 141 (Came into force 24 November 1977).
7. International Labour Convention No. 151 (Came into force 25 February 1981)
8. P Kaminski. Contribution au colloque ADDES du 8 juin 1983. INSEE, Direction des synthèses économiques. Service des programmes, 30 mai 1983, no. 320/169
9. Solange Passaris et Guy Raffi. Les associations. Paris, Editions La Découverte, 1984
10. Council of the European Communities. Sixth Council Directive of 17 May 1977 on the Harmonization of the Laws of the Member States relating to Turnover Taxes - Common System of Value Added Tax: Uniform Basis of Assessment. [Official Journal of the European Communities], L145, 13 June 1977 (see Article 13, A, 1, I)
11. J Dussart. Le Régime de TVA Nouvellement Applicable aux Associations Internationales. Bruxelles, Fédération des Associations Internationales Etablies en Belgique, 1987 (see also Ministère des Finances, Secteur TVA, Circulaire 12, 29 décembre 1986)