Perspectives of freedom of association | Sunday Observer

Perspectives of freedom of association

28 May, 2023

Part 1

The freedom of association for purposes or objects which are lawful is an aspect of pluralism which underpins the concept of democracy. Pluralism relating to industrial relations implies a process of negotiation between employer and workmen and between one or more of them on the one hand and the government on the other. It, therefore, recognises these groups as the checks and balances which guarantee democracy.

The preamble to the Constitution of the International Labour Organization (ILO), states that “universal and lasting peace can be established only if it is based on social justice”. Sri Lanka has ratified all the principal United Nations Conventions on human rights and also all eight of the International Labour Organization (ILO) fundamental conventions reflected in the 1998 Declaration of Fundamental Principles and Rights at work of the ILO.

Human rights and development are interrelated. They reinforce each other. Rights constitute the essential condition of a good life. The individual has obligations towards the State. But the State also has certain obligations to provide conditions of good life to such persons. Rights are essential but they are not unlimited. Rights and duties are interrelated.

Human rights are rights that everyone has by virtue of his / her being human. Social justice and human rights are intimately connected. Without human rights guaranteed by civil liberties, social rights have no meaning. Political freedom, civil liberties, social justice and cultural vitality are mutual complementary expression of the freedom of human spirit. Without of freedom of association, the freedom of individual is at the mercy of the powerful groups or persons.

International Labour Organization

The International Labour Organization (ILO) is one of the most important agencies of the United Nations which promotes industrial and social peace through some humane conditions of work. It was created as a tripartite body under the Treaty of Versailles in 1919, and outlived that body to become in 1946, the first specialised agency associated with the United Nations.

Its main objective is to ensure the social and economic well being of the working people all over the world and to guarantee to them decent living standards, adequate employment opportunities and satisfactory conditions of work and pay.

The ILO approach to the implementation of human rights is based on three guiding concepts: laying down standards by way of conventions and recommendations, promotional and educational activities, inquiring into complaints and practical assistance involving in applying standards and procedures.

Conventions are instruments adopted by the ILO Conference after a detailed process of discussion, consideration, modification and voting at the Conference. After adoption by the Conference, a Convention becomes applicable to members States, if they ratify it. Ratification is on a voluntary basis, but once ratified, the Convention is an international treaty in the sense that it obliges the ratifying State to give effect to the provisions of the Convention.

The ratifying State is obliged to bring its laws and practices in line with the Convention. There is also a process to which the ILO monitors the observance by State of their obligations flowing from ratification. Resolutions do not involve any ratifications and are not binding on members States. They are intended to influence and shape labour policy including labour law.

There are two ILO Conventions which are directly related to the freedom of association, which are included in the aforesaid eight fundamental ILO Conventions adopted by Sri Lanka.

(a). The Freedom of Association and the Protection of the Right to Organise Convention No. 87 of 1948.

The Freedom of Association and the Protection of the Right to Organise Convention No. 87, 1948, sets out the way in which workers’ and employers’ organisations should be allowed to function free of control by public authorities. Its objective is to establish the freely exercise the rights of workers and employers, without distinction, to organise for furthering and defending their interests.

A summary of the Convention is follows:

* Workers and employers, without distinction whatsoever, have the right to establish and join organisations of their own choosing with a view to furthering and defending their respective interests. However, national legislation can determine the extent to which the guarantees in the Convention shall apply to the armed forces and the police.

* Such organisations have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programs. Public authorities are required to refrain from any interference which would restrict this right or impede the lawful exercise of this right.

* The organisations are not liable to be dissolved or suspended by administrative authority.

* These organisations have the right to establish and join federations and confederations which are entitled to the same rights and guarantees, and to affiliate with international organisations.

* The acquisition of legal personality by those organisations shall not be subject to restrictive conditions.

* In exercising the rights provided for in the Convention, employers and their respective organisations are required to respect the law of the land, which should not impair, nor be so applied as to impair, the guarantees in the Convention both in respect of its content and its application.

Thus the Convention emphasises the need for development activities to address human needs directly and protect the working people by creating safe and humane working conditions reforming and extending social security and meeting the needs of the most vulnerable groups such as child workers, women and migrant workers and those in the formal sectors.

Development cannot be measured solely by the quantity of production but by its sustainability, by its capacity to protect the livelihood of all human beings. Development should be coupled with distributive justice.

(b). The Right to Organise and Collective Bargaining Convention No. 98, 1949

Adopted in 1949, Convention No. 98 seeks to protect workers from controls by employers and employers’ organisations and also seeks to guarantee non-interference by workers’ and employers’ organisations in respect of each other. Article 1 of Convention No. 98 requires that-

‘(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 of acts calculated to –

* make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

* 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”.

The freedom of association for trade union purposes is meaningless unless the protection is extended to the purposes for which people would wish to so associate. Therefore, the Right to Organize and Collective Bargaining Convention (No. 98) 1949 has as its objectives the protection of workers who exercise the right to organise, ensuring non interference in workers’ and employers’ organisations and the promotion of voluntary collective bargaining. The main provisions of the Convention are as follows:

* Workers shall enjoy adequate protection against acts of anti-union discrimination.

* Workers shall be protected more particularly against the refusal to employ them by reason of their trade union membership, and against dismissal or any other prejudice by reason of union membership or participation in trade union activities.

* Workers’ and employers’ organisations are entitled to protection against acts of interference by each other. This protection is afforded particularly against acts intended to secure the domination, the financing or the control of workers’ organisations by employers or employers’ organisations.

* Machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organise as defined by the Convention.

* Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the development and use of voluntary collective bargaining to regulate terms and conditions of employment.

The extent to which the Convention applies to the Security Forces and the police is determined by national laws or regulations.(Article 5 of the Convention). Although the Convention does not deal with the position of public servants engaged in the administration of the State, it cannot be construed as prejudicing their rights or status.

Human Rights standards on freedom of association

The establishment of the United Nations in 1945 revolutionised human rights protection. From a subject that was treated under classical international law as being an exclusively domestic matter, human rights protection became a subject that came within the purview of the international community governed by international law. Article 1(3) of the UN Charter declares international protection of human rights as a main purpose of United Nations. Member States are deemed to be under an international legal obligation to inter alia, to promote “universal respect for an observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion through and joint and separate action in co-operation with the United Nations.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is still considered as the seminal document that recognises Universal Human Rights Norms. The document which was adopted by the General Assembly in 1948 states in its preamble that the content of the Declaration is to be a ‘common standard of achievement for all people and all nations’ keeping in mind the ideal expressed in the UN Charter’s preamble that the people’s of the UN: reaffirm faith in fundamental human rights in the dignity and the worth of the human person, in the equal rights of men and women and to promote social progress and better standards of life in larger freedom. The UDHR provided the basis for the formulation by the United Nations of Covenants, Conventions and Declarations on specific matters.

The rights proclaimed in the UDHR can be broadly divided into two kinds: the first refers to civil and political rights which among others, include the right to life, liberty and security of person, freedom of peaceful assembly and association. The second refers to economic, social and cultural rights which relate to among others, the right to work equal pay for equal work, the right to form and join trade unions.

The UDHR states that these rights may only be limited for the purpose of securing recognition and respect for the rights and freedoms of others and that each person has duties to the community in which she/he lives. After the adoption of the UDHR in 1948, two international Covenants on human rights namely the International Covenant on Economic, Social and Cultural Rights (ICESCR),the International Covenant on Civil and Political Rights (ICCPR) and the Optional Protocol to the latter Covenantwere adopted by the General Assembly on December 16, 1966.

Both came into force in 1976. These instruments, along with the UDHR and Second Optional Protocol adopted in 1989 make up what is now widely known as the International Bill of Rights – adopted by Sri Lanka too.


The Covenants, unlike the UDHR, are legally binding treaties for those States which are parties to them and they are obliged to respect the procedures for their implementation including the submission of periodic reports in their compliance with their obligations under the Covenants. Although there are two Covenants on human rights, the UN position is reflected in the 1993 Vienna Declaration on Human Rights according to which all human –rights are universal, inter-dependent and indivisible.

Article 22 of the ICCPR deals with the freedom of association. This Article has three paragraphs. According to paragraph 1, everyone has the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. As provided in paragraph 2 of Article 22, no restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

To be continued next week.