TRADE UNION RIGHTS ARE HUMAN RIGHTS
Prof. (Dr.) N. Nirmala
The basic trade union rights, namely, freedom of association and right to collective bargaining are fundamental to the effective functioning of the trade unions and thereby to the strengthening of industrial relations in any country. These basic rights are recognized and incorporated under the structure of International Labour Organisation (ILO) and under the major Human Rights documents. It was a long drawn struggle of the working class for nearly four centuries (14th to 18th) which resulted in the universal recognition of the inherent right of the workers to combine and bargain collectively throughout the world.
The Universal Declaration of Human Rights (UDHR) which was adopted in 1948 by the United Nations General Assembly laid a framework for the pursuit of human rights globally. Freedom of Peaceful Assembly and to Form Associations and Unions was proclaimed in Art.20 (1) and Art.23 (4) of the UDHR “Everyone has the right to freedom of peaceful assembly and association” and” Everyone has the right to form and to join trade unions for the protection of his interests."
The distinctive feature of Freedom of Association is that it is both an individual as well as a collective right. At the individual level, it means a right to join a union or organization of his or her choice and a right not to be dismissed unilaterally nor victimized by the employer for taking part in union activities. And at the collective level, it means right to form association and right to be free from any controls or restrictions from the Government or employers.
The next important step in the direction of the recognition of freedom of association and right to collective bargaining as the fundamental labour and human rights was the adoption of two historic Conventions (Nos. 87 and 98) by ILO in 1948 and 1949.
Freedom of Association is the basic right of workers to form and join representative organisations of their own choosing in the workplace. This right is stated in Article 2 of Convention 87 as "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." Article 3: "The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof"
Of all the rights of the workers, it is the freedom of association which forms the basis for the overall preservation and protection of the attendant rights like, collective bargaining, right to strike, minimum labour standards.
Collective bargaining is the right of workers to join trade unions without fear of discrimination, to have their union recognised as the representative of its members, and to have it negotiate the terms and conditions of their employment on their behalf. This right is stated in Article 1 and 4 of Convention 98 of ILO:
"Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment ... Measures appropriate to national conditions shall be taken, 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."
Freedom of Association is closely linked with other civil and political rights, especially freedom of expression and opinion, freedom of peaceful assembly, and the freedom of movement. The full exercise of civil and political rights is also dependent on the extent to which economic, social and cultural rights are enjoyed.
The International Convenant of Civil and Political Rights (ICCPR) 1966: The rights pertaining to the life, integrity, liberty and security of human person; the rights with respect of administration of justice; the right to privacy; the rights to freedom of religion or belief and to freedom of opinion and expression; freedom of movement; the right to assembly and association; and the right to political participation are among the civil and political rights.
The International Convenant of Economic, Social and Cultural Rights (ICESCR) 1966: The right to work; trade union freedoms; the right to adequate standard of living, including food, clothing and housing; the right to health care; the right to education; and the right to take part in cultural life are among the economic, social and cultural rights.
In June 1998 the International Labour Conference adopted a solemn Declaration on Fundamental Principles and Rights at Work declared that all member States have an obligation “to respect, to promote and to realize, in good faith ... the fundamental rights which are the subject of the fundamental ILO Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining….” (Art. 2)
Human rights had also been classified as three generation rights initially by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg.
First-generation human rights are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, religion and voting rights. They were enshrined in Articles 3 to 21 of the 1948 Universal Declaration of Human Rights and later in the 1966 International Covenant on Civil and Political Rights.
Second-generation human rights are related to equality and began to be recognized by governments after World War II. They are fundamentally economic, social and cultural in nature. They guarantee different members of the citizenry equal conditions and treatment. Secondary rights would include a right to be employed, rights to housing and health care, as well as social security and unemployment. Like first-generation rights, they were also covered by the Universal Declaration of Human Rights, and further embodied in Articles 22 to 27 of the Universal Declaration, and the International Covenant on Economic, Social, and Cultural Rights.
Third-generation human rights are those rights that go beyond the mere civil and social, as expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development. The term ‘third-generation human rights’ relates to ‘group rights’ are as follows:
· Right to self-determination;
· Right to economic and social development;
· Right to a healthy environment;
· Right to natural resources;
· Right to communicate and communication rights;
· Right to participation in cultural heritage;
· Rights to intergenerational equity and sustainability.
ENFORCEMENT MECHANISM UNDER INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
Under ILO system: Regular reports for every two years are to be submitted to ILO by countries, which have ratified on measures taken to give effect to conventions. The reports will be reviewed by Committee of Experts, a highly technical and quasi-judicial body composed of eminent jurists, monitors the application of ILO Conventions and Recommendations and notes cases of progress (or otherwise) in its reports and Governing Body (GB) and sent to annual ILO Conference.
In case of unsatisfactory implementation of recommendation, GB can set up Commission of Inquiry, leading to further recommendations. As ultimate recourse, GB can invoke Art.33, and recommend “such action as it may deem wise and expedient to secure compliance” with recommendations of Commission of Inquiry.
Under Human Right Purview: Though there is supervisory mechanism like Human Rights Committee for monitoring the enforcement of the rights provided under the international human rights covenants, it is mainly the duty of the member nations to get civil and political rights enforced within their nations. The enforcement of the rights contained in the Covenant on Economic, Social and Cultural Rights depends upon the economic state of the member states, and on the financial and technical assistance given to the states, particularly to developing and non-developed states.
ASSAULT ON THE TRADE UNION RIGHTS
Global Context : Brutalization and denial of the basic trade union rights, namely freedom of association, right to collective bargaining and right to minimum labour standards has been the order of the day in the globalized era. In spite of the fact that these basic rights are incorporated in almost all the international human rights documents they have been either denied or violated with impunity by the governments or the employers.
This is mainly due to drastic shift in power relations in favour of transnational capital. Transnational capital is reordering the world economy in its own interests, with the support of the US government, the leading world power and the leading European governments through the Bretton Wood’s institutions, the World Trade Organization and the EU institutions. The immediate consequences of such reordering are the growing social inequalities and social disruption, undermining of social protection and the new and growing threats to the environment that are potentially life-threatening for humanity.
Indian Context: The continuation of economic liberalization, privatization and globalization policies (LPG) introduced in last decade of 20th century had undoubtedly lead to more employment flexibility, greater decentralization in bargaining structures especially in public enterprises. The reform process in the industrial relations arena for the last one and half decades of the 21st century has been in the direction of revival of laissez policy i.e., less government intervention giving scope for large scale corporatization and individualization of bargaining process. Suppression of trade union rights through unleashing of hire and fire policy has been the order of the day.
CONSISTENT STRUGGLE OF WORKING CLASS IN ALLIANCE WITH
OTHER OPPRESSED CLASSES IS THE ONLY ALTERNATIVE FOR THE
PROTECTION OF BASIC TRADE UNION RIGHTS AND HUMAN RIGHTS
Prof. (Dr.) N. Nirmala , Retired Professor of Law, Andhra University, Visakhapatnam.