Precarious Work and the Exercise of Freedom of Association and Collective Bargaining: Current ILO Jurisprudence

KEYWORDS precarious employment, workers rights, freedom of association, collective bargaining, ILO Convention, ILO Recommendation, supervisory machineryThe impact of precarious forms of employment on workers' access to freedom of association and collective bargaining rights is currently one of the main concerns of the trade union movement around the world. It is argued that these forms of employment are increasingly used by employers, both in the private and public sectors, to undermine the right to organize and eliminate or weaken the right to collective bargaining as well as to deprive workers of labour protection. This article focuses on precariousness arising mainly from the contractual arrangements under which the work is performed including stand-by, temporary, employment-agency, casual, part-time, and seasonal contracts, pseudo self employment, no direct or an unclear employer/employee relationship.1Faced with a growing number of allegations, the ILO Committee on Freedom of Association (CFA) and Committee of Experts on the Application of Conventions and Recommendations (CEACR) have developed a rich case law. Both reaffirm that the different categories of workers in precarious employment should be able to exercise their rights to freedom of association and collective bargaining, and indicate that, when necessary, special measures should be adopted to guarantee effective access to these rights. In this article we will review some of the cases symptomatic of the more common restrictions raised with the ILO, and identify the relevant principles. We will also underline that trade union action is still much needed in this area, both to expand the jurisprudence and to exert pressure on governments to obtain the implementation of the supervisory bodies' recommendations that freedom of association be fully respected in law and in practice.A very brief description of the ILO supervisory system may be useful in this context. Trade unions may have recourse to two kinds of mechanisms within the ILO:* They can send observations on the application of a ratified Convention in the framework of the regular system of supervision. Under this system, an independent and technical body, the CEACR, examines periodic reports submitted by ILO member States on the measures they have taken to implement in law and in practice the provisions of ratified Conventions, together with observations in this regard sent by workers' organizations and employers' organizations. To accomplish this task, the CEACR expresses its views on the content and meaning of the provisions of Conventions and determines their legal scope, where appropriate. In a second stage, the report produced by the Committee is examined by a tripartite body, the Committee on the Application of Standards of the International Labour Conference.* Trade unions can file complaints under the special procedures. These include a representations procedure and a complaints procedure of general application which relates only to ratified Conventions, as well as a special procedure for freedom of association that trade unions can use even against governments which have not ratified the relevant Conventions. Complaints about violations of freedom of association are examined by the CFA, a tripartite committee of the ILO Governing Body. If it finds that there has been a violation of freedom of association standards or principles, the CFA makes recommendations on how the situation could be remedied. Governments are subsequently requested to report on the implementation of its recommendations.The work of these bodies has an important added value for the activity of trade unions at national level. ILO observations and recommendations, together with the text of relevant Conventions, may be used, for instance, to defend a specific case in negotiations with the employer or the government; to strengthen a submission to a judge when the case is pending before a domestic court; or, more broadly, to seek the amendment of a law or reinforce a position in the context of a labour law reform. …