Article by Ilo on Collective Bargaining

7/28/2019 Article by Ilo on Collective Bargaining

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Collective bargaining, as was only to be expected,has felt the impact of the major changes affecting theworld over the past 25 years: the general acceptanceof the market economy following the fall of the BerlinWall, the debate on the role and structure of the

State, economic restructuring and globalization, theready availability of efficient ways of fightinginflation, the growth of non-standard forms of workand temporary contracts, the ongoing process ofpolitical and social democratization, the growing

autonomy of trade unions from political parties, andmany other factors too numerous to mention. Allthese factors have had a varied and significant impacton collective bargaining.


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The increasingly harsh competition broughtabout by technological innovation andglobalization has led to a reduction in theinfluence exercised in many countries by sectoralagreements and has given added importance tocollective bargaining at the enterprise level (andat lower levels, such as the work unit, the factoryor the workplace), strictly taking into account thecriteria of productivity and output. Flexibilization

and deregulation of work have thus encouragedthe growth of collective bargaining at enterpriselevel.


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The ILO has carried out an enormous amount ofstandard-setting work during the 80 years of itsexistence as it has sought to promote social

justice, and one of its chief tasks has been toadvance collective bargaining throughout theworld. This task was already laid down in theDeclaration of Philadelphia, 1944, part of the ILOConstitution, which stated the solemn obligationof the International Labour Organization to

further among the nations of the worldprogrammes which will achieve ... the effectiverecognition of the right of collective bargaining


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More recently, in June 1998, the ILO tookanother step forward by adopting theDeclaration on Fundamental Principles andRights at Work and its Follow-up. These

principles include the effective recognition ofthe right to collective bargaining, along withfreedom of association and the elimination offorced or compulsory labour, the effective

abolition of child labour and the eliminationof discrimination in employment andoccupation.


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The framework within which collective bargainingmust take place if it is to be viable and effectiveis based on the principle of the independenceand autonomy of the parties and the free andvoluntary nature of the negotiations; it requires

the minimum possible level of interference by thepublic authorities in bipartite negotiations andgives primacy to employers and theirorganizations and workers organizations as theparties to the bargaining. The ILO has also

encouraged tripartite national agreements whichare similar to those reached within theOrganization by representatives of workers,employers and governments.


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In the ILOs instruments, collective bargaining is deemedto be the activity or process leading up to the conclusionof a collective agreement. In Recommendation No. 91,Paragraph 2, collective agreements are defined as:

All agreements in writing regarding working conditions

and terms of employ-ment concluded between anemployer, a group of employers or one or moreemployers organisations, on the one hand, and one ormore representative workers organisations, or, in theabsence of such organisations, the representatives of theworkers duly elected and authorised by them in

accordance with national laws and regulations, on theother (ILO, 1996b, p. 656).


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Convention No. 98 does not contain a definition ofcollective agreements, but outlines their fundamentalaspects in Article 4:

Measures appropriate to national conditions shall be

taken ... to encourage and promote the fulldevelopment and utilisation of machinery forvoluntary negotiation between employers oremployers organisations and workers organisationswith a view to the regulation of terms and conditionsof employment by means of collective agreements

(ILO, 1996b, p. 640).


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ILO instruments clearly permit collectivebargaining only with representatives of theworkers concerned if there are no workersorganizations in the area in question (enterprise

level or higher). In Convention No. 135, which provides in Article

5 that the existence of elected representatives isnot used to undermine the position of the trade

unions concerned or their representatives


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The Committee on Freedom of Associationmaintained in one case that directsettlements signed between an employer anda group of non-unionized workers, even

when a union exists in the undertaking, doesnot promote collective bargaining as set outin Article 4 of Convention No. 98 (ILO,1996a, para. 790).


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It is important to emphasize that, forworkers organizations to be able to fulfiltheir purpose of furthering and defendingthe interests of workers through collective

bargaining, they have to be independent andmust be able to organize their activitieswithout any interference by the publicauthorities which would restrict this right orimpede the lawful exercise thereof(Convention No. 87, Articles 3 and 10, ILO,1996b, pp. 528-529).


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Depending on the individual system of collectivebargaining, that trade union organizations whichparticipate in collective bargaining may representonly their own members or all the workers in thenegotiating unit concerned. In this latter case,

where a trade union (or, as appropriate, tradeunions) represents the majority of the workers, or ahigh percentage established by law which does notimply such a majority, in many countries it enjoysthe right to be the exclusive bargaining agent onbehalf of all the workers in the bargaining unit.


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The position of the Committee of Experts is that bothsystems are compatible with the Convention .

The Committee on Freedom of Association hasupheld principles and decisions along the same linesas the Committee of Experts (ILO, 1996a, paras. 831-842), and has justified that decisions concerning themost representative union should be made by virtueof objective and pre-established criteria so as toavoid any opportunities for partiality or abuse (ibid.,

para. 827).


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The Committee could not allow the exclusionfrom the terms of the Convention of largecategories of workers employed by the Statemerely on the grounds that they are formallyplaced on the same footing as public officials

engaged in the administration of the State. Thedistinction must therefore be drawn between, onthe one hand, public servants who by theirfunctions are directly employed in theadministration of the State (for example, in some

countries, civil servants employed in governmentministries and other comparable bodies, as wellas ancillary staff) who may be excluded from thescope of the Convention and, on the other hand,all other persons employed by the government,

by public enterprises or by autonomous publicinstitutions, who should benefit from the


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Conventions No. 98, No. 151 and No. 154 andRecommendation No. 91 focus the content ofcollective bargaining on terms and conditions of workand employment and on the regulation of therelations between employers and workers andbetween organizations of employers and of workers.

With the modern tendency in industrialized countriesto recognize managerial collective bargainingconcerning procedures to resolve problems, such asstaff reductions, changes in working hours and othermatters which go beyond terms of employment in

their strict sense.


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Nevertheless, although the range of subjectswhich can be negotiated and their content isvery broad, they are not absolute and need tobe clearly related to conditions of work and

employment or, in other words, matterswhich are primarily or essentially questionsrelating to conditions of employment (ILO,1996a, para. 812).


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The principle of free and voluntarynegotiation

Free choice of bargaining level

The principle of good faith


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Drafting and registration of collectiveagreements

Interference in the application of collectiveagreements in force

Restrictions on future negotiations


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The exercise of the right of freedom of association byorganizations of public officials and employees isnow a reality in industrialized countries and in manydeveloping countries.

Convention No. 98, adopted in 1949, excluded fromits scope public servants engaged in theadministration of the State, but Convention No. 151,adopted in 1978, took an important step forward inrequiring States to promote machinery fornegotiation or such other methods as allowrepresentatives of public employees to participate in

the determination of their terms and conditions ofemployment


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A few years later, in 1981, came the adoptionof Convention No. 154, which promotescollective bargaining in both the privatesector and the public service


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Collective bargaining in the public service raisesspecific problems. On the one hand, there areoften one or more national conditions of servicedesigned to achieve uniformity, which are ingeneral approved by Parliament, and which often

contain exhaustive regulations covering therights, duties and conditions of public servants,thereby prohibiting or leaving little room fornegotiation.

On the other hand, the remuneration of public

servants has financial implications which have tobe reflected in public budgets, which areapproved by such bodies as parliaments andmunicipalities, etc


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According to Conventions No. 151 and No.154, it is admissible for special modalities ofapplication to be fixed for collectivebargaining in the public service.


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Legislative provisions which allow Parliament or thecompetent budgetary authority to set upper and lowerlimits for wage negotiations or to establish an overallbudgetary package within which the parties maynegotiate monetary or standard-setting clauses or thosewhich give the financial authorities the right to participate

in collective bargaining alongside the direct employer arecompatible with the Convention, provided they leave asignificantrole to collective bargaining. It is essential,however, that workers and their organizations be able toparticipate fully and meaningfully in designing this overallbargaining framework, which implies in particular thatthey must have access to all the financial, budgetary andother data enabling them to assess the situation on thebasis of the facts.


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Committee on Freedom of Association (ILO,1996a, para. 899), which has alsoemphasized that the reservation ofbudgetary powers to the legislative authority

should not have theeffect of preventingcompliance with collective agreementsentered into by, or on behalf of, thatauthority


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In so far as the income of public enterprises andbodies depends on state budgets, it would not beobjectionable after wide discussion andconsultation between the concerned employers

and employees organizations in a system havingthe confidence of the parties for wage ceilingsto be fixed instate budgetary laws, and neitherwould it be a matter for criticism that the

Ministry of Finance prepare a report prior to thecommencement of collective bargaining with aview to ensuring respect of such ceilings.


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Before such ceilings are established, both theemployers and the public sector trade unionorganizations should be consulted and beable to express their points of view to the

authority responsible for assessing thefinancial consequences of draft collectiveagreements.


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On the subject of the provisions of collective agreementsrelating to remu-neration and conditions of employmentwhich have financial implications, one of the fundamentalprinciples mentioned above is that collective agreementsmust be respected by the legislative and administrativeauthorities. This principle is compatible with the various

budgetary systems, provided that they meet certainconditions and, in particular, can accommodate, on theone hand, systems in which collective agreementsresulting from negotiation are concluded before thebudgetary debate (provided that the budgets in practicerespect the content of the agreements) and, on the otherhand, systems in which the agreements are con-cludedafter the budget, provided they are sufficiently flexible.


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Finally, the flexibility permitted byConvention No. 154 means that, whennegotiation covers terms and conditions ofemployment which involve changes in the

legislation respecting administrative careersor the conditions of service of publicemployees, its results can take the form of acommitment by the government authoritiesto submit draft legislation to parliament toamend the above texts along the lines of thenegotiations

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Article by Ilo on Collective Bargaining