Every year, the International Labour Organization’s (ILO) Committee on Freedom of Association releases a list of cases examined and their findings, placing a higher priority on some particularly egregious violations or lack of responsiveness on the part of governments. This year, situations in Argentina, Cambodia, Ethiopia, Fiji, and Peru were determined to be the most grave and urgent matters to come before the Committee.
The principles constituting the fundamental human and labor right of freedom of association have been central tenets of the International Labour Organization (ILO) since its inception. Realization of the freedom of association is considered by the ILO to be a requirement necessary to realizing other rights such as collective bargaining and to maintaining constructive social dialogue.
The right was first enshrined in the ILO Constitution of 1919 and again in the ILO Declaration of Philadelphia of 1944 and in the ILO Declaration on Fundamental Principles and Rights at Work of 1998. The substantive content of the right was first set forth in two fundamental conventions: the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Later conventions 135, 141, and 151 updated the earlier instruments, and many other instruments such as the ILO’s Maritime Labour Convention of 2006 (entering into force in 2013) incorporate the right by reference.
The Freedom of Association alone enjoys a procedure at the ILO whereby workers’ or employers’ unions can submit complaints to the ILO’s tripartite Committee on Freedom of Association, which is composed of government, employer, and employee representatives. Unlike the general complaints procedure where only governmental noncompliance with ratified conventions can be considered, the Committee on Freedom of Association can examine alleged violations of the freedom of association irrespective of ratification – ILO membership is the only criteria. As the Committee on Freedom of Association can examine a complaint of any Member State, it wields a more limited set of procedures and tools to employ in examination of such cases. The Committee on Freedom of Association may issue recommendations to the concerned government, request to remain informed of the matter, or initiate direct contacts missions within countries were dialogue is facilitated between governments and social partners. It may also refer the case to the Committee of Experts on the Application of Conventions and Recommendations if rights enshrined in ratified convention are implicated. This body publishes observations regarding the particular cases and confidentially communicates direct requests to governments to provide more information or that contain technical advice. The Committee of Experts will remain seized of the matter in a supervisory capacity and follow up on complaints.
The ILO’s mechanisms for promoting labor rights disfavor punishments as incentives and mostly take the form of aid. Flexible in form, the ILO will provide informal advice, legislative assistance, technical specialists, seminars, or any other form that may prove successful.
Cambodia’s case arises from a complaint dated January 22, 2004. The complaint alleges that three trade union leaders, Chea Vichea, Ros Sovannareth and Hy Vuthy, were killed in circumstances implicating government involvement. Other allegations include the failure to launch an investigation into the murder of Hy Vuthy, the denial of appeal in the cases of Chea Vichea and Ros Sovannareth, the threatening of witnesses to the murders, the disappearance or police abduction of relatives and partners of involved unionists, the practices of blacklisting and harassing unions and unionists, government malfeasance in covering up its tactics through intimidation, murder, and information control, and government nonfeasance in failing to judicially investigate the assault of thirteen unionists and the post-strike dismissal of three participants.
The Committee examined the case on the merits in 2005 and reexamined the case in 2006, 2007, and 2008 without any reply from the government of Cambodia on the Committee’s conclusions and recommendations. Cambodia finally provided its observations January 8, 2009. The communications tersely stated that the police reopened the investigation into Chea Vichea’s murder and that the police were still investigating the murders of Ros Sovannareth and Hy Vuthy. In June of 2009, the Committee found this reply wholly unsatisfactory. Most of the allegations were left unaddressed – allegations that struck to the heart of a systematic practice of suppressing workers’ rights. No evidentiary documentation was provided to support the claims regarding progress in the cases of the three union leaders.
The government of Cambodia replied again September 14, 2009, noting only that the two suspects apprehended in relation to the murder of Chea Vichea were released on bail by order of the Supreme Court. There were many procedural and evidentiary defects in these cases, but the suspects had remained in prison. The Committee concluded that bail should be returned to the suspects and that they should be exonerated of all charges.
No reply has been provided to the ILO’s Committee on Freedom of Association and the case has been designated one of “the most serious and urgent regarding freedom of association.” The situation in Cambodia continues, with other similar situations beyond those submitted to the ILO occurring.
This case began as a consolidation of several complaints with the earliest dated September 11, 2006, though the Committee on Freedom of Association had addressed similar complaints of human rights violations raised by the same complainants in Ethiopia as early as November of 1997. The Ethiopian Teachers’ Association, Education International, the International Confederation of Free Trade Unions, and the World Confederation of Labour brought a series of charges against the Ethiopian government alleging numerous violations of the freedom of association.
The Ethiopian Teachers’ Association complained that national law deprived public sector teachers from joining unions and that the government interferes with their activities through intimidation, continues to harass, dismiss, transfer, arrest (with or without warrants), detain, kill, and mistreat affiliated teachers. The government was also alleged to have failed to properly investigate the numerous instances of abuse. Other unions were denied legal registration on the grounds that the names of the organizations were too similar.
The Ethiopian government remained responsive to the Committee on Freedom of Association, submitting communications and responses dated February 22, May 23, and October 19, 2007. Its position was a general denial of any misdoings on the part of the government, and that any arrest, detentions, or prosecutions were unrelated to any union affiliation. The Committee on Freedom of Association found the Ethiopian Teachers’ Association’s grievances to carry the day, and requested the Ethiopian government take corrective measures to better realize the freedom of Association.
The Ethiopian Teachers’ Association on December 10, 2007 and June 9, 2008 submitted new allegations that continued to detail the systematic abuses in Ethiopia. Between these dates, the ILO completed a direct contacts mission in Ethiopia. The Ethiopian government responded to the new allegations February 4 and July 2, 2008 and February 19, 2009. The Committee on Freedom of Association was still not swayed by the government’s continued, undocumented blanket denials. This same process was repeated with new allegations dated November 3, 2009, and replies dated October 14, 2009 and March 7, 2010. New allegations were submitted on March 11, 2011 to which there was no response until March 7 and October 8, 2012.
The Committee of Experts designated this case as deserving special attention as allegations dating to 1995 are still unresolved, documentation supporting the government’s contentions is utterly lacking, and the same labor rights abuses continue to occur under the same culture of repression.
The National Federation of Miners, Metalworkers, and Steelworkers of Peru submitted its original complaint to the Committee on Freedom of Association on August 8, 2008, and submitted new allegations September 29, 2009. The government of Peru responded on November 2 and 17, 2009, May 25, 2010, February 7, 2011.
The Peruvian Union alleged that the government’s administrative power to declare strikes illegal is arbitrary, capricious, and allows for the summary dismissal of participants, that the government engages in the systematic abuse and repression of unions and their members ranging from intimidation tactics to the murder of union leaders.
The government has not provided any information to the ILO to date regarding the legal basis upon which a strike may be declared illegal or any developments into the alleged murders. The alleged arbitrary detentions of Peruvian union leaders is being examined separately in Case No. 2771, which remains unresolved awaiting information from the government regarding the circumstances that detention was effectuated in.
The Committee found that responsibility for determining the legality of strikes should lie with an independent body and not the government.
In complaints dated July 1, August 11, and September 9, 2009 and August 30, 2010, Education International and the Fijian Teachers’ Association alleged violations of freedom of association similar to the previously mentioned cases. The complaint alleged a systematic pattern of abuse including, inter alia, interference with union activities, intimidation of union members through harassment, dismissal, acts of vandalism, firebombs, and torture. Later allegations point to a series of executive and emergency decrees that granted unfettered power to declare certain industries “essential national industries” whose workers are thus unable to avail themselves of the protections of labor laws. These measures had other deleterious effects on labor rights, including freezing minimum wage and expanding the military’s control over the public service.
The government of Fiji submitted a partial response on September 1, 2009, May 27, 2010, and May 28, 2012. The first responses focus on the discriminatory dismissals alleged and omit any reference allegations of anti-union intimidation. The most recent response from the Fijian government contended that all decrees complained of were to be reviewed with an eye to bring them in line with ILO standards.
The Committee on Freedom of Association lamented the lack of responsiveness from the government and requested a direct contacts mission that was initially accepted by Fiji. The mission was cut short in September 2012 when the team was asked to “depart expeditiously.” Recommendations issued largely urged Fiji to conduct independent examinations, judicial or otherwise, into the largely unexamined allegations of intimidation and anti-union practices.
The most recent of the five cases, this complaint was dated September 11, 2011 and was submitted by the Congress of Argentine Workers. The workers allege that union activity spurred by poor and unsafe working conditions received violent response from state security forces and the private security forces of industry enterprises. These actions included the forced eviction of over 500 workers, arrests, detentions, drive-by shootings conducted by police, violent clashes between groups, and several murders. The complaint further alleges a failure on the part of the Argentinean government to investigate and judicially inquire into these instances.
The government of Argentina responded in May 2012, largely stating that investigations and judicial inquiries have been launched but have not concluded.
The Committee on Freedom of Association noted the gravity of the allegations but found the complaint somewhat premature in that the government of Argentina apparently is investigating the alleged incidents and must be given the opportunity to do so.
Though all of these cases share oppressive and violent instances of government actions against union in violation of the right to freedom of association, the most serious problem is the lack of effort on the part of governments to engage in social dialogue, either through working with unions or fact-finding through police investigations and judicial inquiries. All five countries implicated have ratified the two fundamental ILO conventions on the freedom of association (Nos. 87 and 98). These are not mere statements of agreement to general principles, but commitments to implement the enshrined rights through national law and to be held accountable for violations thereof.
These factors combined demonstrate the lack of a rights-respecting culture in government that breeds flagrant violations and rewards them with impunity. While the Ethiopian case has been languishing for nearly fifteen years, the Argentinean example is quite recent and may represent an effort to prompt a resolution of the situation before the passage of time all but secures government unaccountability and renders intimidation and oppression the standard. The ILO has acknowledged that the recent trend in complaints is that anti-union actions are on the rise. These situations may have been exacerbated by the current global economic situation, which in turn reduces political will, government spending, and the relative strength and efficiency of labor ministries. Though these five cases were considered to be to the most serious in terms of gravity, most of the violations outlined within are representative of the unfortunate global trend.