Collective Bargaining and Trade Disputes under International Law
ILO Convention 98, Right to Organise and Collective Bargaining Convention (1949)22
Article 1 of ILO Convention 98 states:
(1) Workers shall enjoy adequate protection against acts of anti -union discrimination in respect of their employment.
(2) Such protection shall apply more particularly in respect to acts calculated to:
(a) make the employment of a worker subject to the condition that he/she shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
Of the GMS countries, only Cambodia has ratified ILO Convention number 98.
ILO Convention 154, Convention concerning the Promotion of Collective Bargaining (1981)23
Article 2 provides:
For the purpose of this Convention the term “collective bargaining” extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, 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 organisations and a workers’ organisation or workers’ organisations.
Article 5 further states:
1. Measures adapted to national conditions shall be taken to promote collective bargaining.
2. The aims of the measures referred to in paragraph 1 of this Article shall be the following:
(a) Collective bargaining should be made possible for all employers and all groups of workers in the branches of activity covered by this Convention;
(b) Collective bargaining should be progressively extended to all matters covered by sub-paragraphs (a), (b) and (c) of Article 2 of this Convention;
(c) The establishment of rules of procedure agreed between employers’ and workers’ organisations should be encouraged;
(d) Collective bargaining should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules;
(e) Bodies and procedures for the settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining.
None of the GMS countries have ratified ILO Convention 154.
ILO Convention 87, Freedom of Association and Protection of the Right to Organise Convention (1948)24
Article 2 states that:
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 further stipulates that:
(1) Workers’ and employers’ organisations 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 programmers.
(2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Additionally, Article 4 prohibits the dissolution of workers’ and employers’ organisations administrative authority, and Article 11 urges members of the Convention to ‘take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise’.
Only Cambodia and Burma have ratified ILO Convention 87.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)25
Article 26 of the Migrant Workers’ Convention states that:
1. States Parties recognize the right of migrant workers and members of their families:
(a) To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned;
(b) To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;
(c) To seek the aid and assistance of any trade union and of any such association as aforesaid.
Of the GMS countries, only Cambodia has signed, but not ratified the Migrant Workers’ Convention. None of the other GMS countries have ratified the Migrant Workers’ Convention.
International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)26
Article 8 of the ICESCR states that:
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organisations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
(e) This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
Cambodia, China, Thailand and Vietnam have ratified the ICESCR.
International Covenant on Civil and Political Rights (ICCPR) (1966)27
Article 22 of the ICCPR, similarly to the ICESCR, states:
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
Cambodia, Lao PDR, Thailand and Vietnam have ratified the ICCPR. China has signed but not ratified the ICCPR. Burma has neither signed nor ratified the ICCPR.
The Universal Declaration of Human Rights (UDHR) 194928
Article 23(4) of the UDHR declares that: ‘Everyone has the right to form and to join trade unions for the protection of his interests’.
Endnotes
22 ILO Convention 98, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C098 (accessed 2/06/11).
23 ILO Convention 154, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C154 (accessed 2/06/11).
24 ILO Convention 87, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C087 (accessed 2/06/11).
25 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, available at http://www2.ohchr.org/english/law/cmw.htm (accessed 3/06/11).
26 ICESCR, available at http://www2.ohchr.org/english/law/cescr.htm (accessed 3/06/11).
27 ICCPR, available at http://www2.ohchr.org/english/law/ccpr.htm (accessed 3/06/11).
28 UDHR, available at http://www.un.org/en/documents/udhr/index.shtml (accessed 3/06/11).
