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THE Right to Organize

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Alphonso W. Nyenuh, MA; Industrial and Labor Relations Cornell University

– HOW INTERNATIONAL HUMAN RIGHTS STANDARDS AND LIBERIAN LAW GUARANTEE THE RIGHT TO ORGANIZE

 

GOAL: The goal of this edition is to inform workers in Liberia that they have the right to organize- to form, join, or support labor unions- and that they are better off forming or joining unions than not doing so. As I have said in all of our previous editions, workers are better off when they come together and deal with their employers as a group, than when they deal with their employers as individuals.

 Remember, we said a union is a group of workers coming together to use their strength in number to get their employers to do what the employer would otherwise not do for them. By the way, workers do not have to work for the same employer, and in the same location, to form a union or a collective. Healthcare workers, or domestic workers, or teachers in a school system, can all form unions by coming together even though they might work for different employers or in different locations.

In our last edition we ended on the promise that we will discuss the specific rights guaranteed in the labor relations system – the right to organize, the right to engage in collective bargaining with employers, and the right to strike, etc. In this edition I will discuss the human rights and legal basis of the right to organize- the right to join, form, or provide support- to a labor or trade union. In this discussion I will cite the international as well as the domestic (national) sources and foundations of this very important right.

1)      The Right to organize- right to form or join trade or labor unions

Labor relations scholars and practitioners refer to the right to organize as the “foundational” right in the labor relations system. This is so because labor relations have to do with the relationship between employers or groups of employers on the one hand, and groups of employees (workers) and their representatives (the union) on the other. Labor relations deal with group interaction between employers and employees. As such, workers partake in the labor relations system when they are organized, when they come together in a union or an association.

Accordingly, the right to organize into unions is a defining, or “foundational” right in the labor relations system because, without the right to organize there can be no unions, workers’ associations, employers’ associations, and thus no labor relations. The right to organize also affects other rights in the labor relations system such as the right to engage in collective bargaining and the right to strike. Workers cannot enjoy the right to engage in, or are not covered by collective bargaining laws, until they are organized. The same is true with engaging in strikes against one’s employer (s); accordingly the right to organize is indeed foundational.

The right of workers to join, form, or support trade unions has its roots in the right of every human being to Freedom of Association and Freedom of Expression. As we said in our last edition, because workers are human beings, they have the Right to Freedom of Association and Expression.

Because Freedom of Association and Expression are fundamental rights for all human beings, they are recognized and protected by international, as well as national laws, including Liberian law. My discussion of the right to organize will thus cover both international and Liberian law.

Having said that, let’s now go to the laws and standards that guarantee the rights of workers to form or to join labor unions, whether a domestic worker or agricultural worker, or a teacher or a professor.  I will begin with the international dimension.

The International Legal Dimension

Workers’ associational or organizational rights are provided for in United Nations principles, as well as in the body of laws, rulings, standards, and principles formulated by the International Labor Organization (ILO), the United Nations body charged with the formulation of international labor policy and standards.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR): Regarded as the cornerstone of human rights standards worldwide, the UDHR provides that “everyone has the right to form and join trade unions for the protection of his interests” (UDHR, Article 23 (4)

Other United Nations documents also provide protections for workers’ associational rights, and they include the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Liberia ratified the two covenants on September 22, 2004, though it signed them since April 18, 1967.

  The International Covenant on Civil and Political Rights (ICCPR, 1966)

The ICCPR guarantees that: “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.” The ICCPR also requires ratifying states “to respect workers’ freedom of association and to ensure to all individuals within its territories and subject to their jurisdictions the right to organize. To ensure that these rights are given full effect, the Covenant also imposes upon member states the obligation to adopt necessary legislative and other measures, policy or otherwise, to give effect to the terms of the covenant. The ICCPR also requires all ratifying states to ensure that any person, whose rights or freedoms as recognized in the Covenant are violated, will receive effective remedy.

The International Covenant on Economic, Social, and Cultural Rights (ICESCR, 1966) obliges governments to “ensure the right of everyone to form trade unions and join the trade union of his choice . . . the right of trade unions to function freely . . . the right to strike” (ICESCR).

THE INTERNATIONAL LABOR ORGANIZATION (ILO)

In recognition of the important nature of the right to organize, the International Labor Organization (ILO) developed a set of ‘guiding principles’ and standards which constitute the body of international labor law. Among them is ILO Convention 87 on freedom of association and protection of the right to organize and ILO Convention 98 which mandates protection for workers in the exercise of their freedom of association rights.

Convention 87 states that “workers and employers, without distinction whatsoever, shall have the right, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.”  The Convention requires member states to take actions that would ensure that the principles set forth in the Conventions are realized in their respective nation-states.

Convention 98 was designed primarily to provide protection to workers in the exercise of their right to organize. It states, among other provisions that: “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. …Such protection shall apply more particularly in respect of acts calculated to a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish union membership; b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.”

The ILO’s Declaration of Fundamental Principles and Rights at Work obligates all members of the ILO to respect, promote, and take steps to realize, in good faith and in accordance with the [ILO] Constitution, the principles concerning the fundamental rights contained in the Conventions, including the right to organize. The ILO requires that where a country’s laws are not on par with the principles laid out in the ILO standards, that member states take action to ensure that their laws, policies and practices meet those standards.

Although, in many respects Liberian law recognizes the rights of workers to organize, as contained in international labor law instruments, it fails in this obligation in many other respects. For example, while the Constitution and labor law guarantee the rights of all workers to form and to join labor/trade unions, to engage in collective bargaining, and to strike, it discriminates against those working in the public sector- government employees- by denying them the right to organize. I will tell you how, as well as discuss the need to change that.

 LIBERIAN LAW

  1. Constitution of Liberia

Although the Constitution of Liberia does not specifically mention the right to form or join trade unions as a fundamental right (as is say, in South Africa for example), it does guarantee freedom of Expression and Association, the principle upon which the worker’s right to organize is built.

Article 15 (a) (b) state: a) every person shall have the right to freedom of expression… b) the right… includes freedom of speech…

  1. Labor Law

Liberian labor law also guarantees the right of workers to organize- to form, join, or support- labor unions. The Decent Work law passed in 2015 is the most recent and most comprehensive in this regard.

Decent Work Act- Labor Law

Under Chapter 2- Fundamental Rights, sub-section 2.6 of the Decent Work Act titled: “Rights to Form Organizations and to Bargain Collectively,” the law provides that: “all employers and workers in Liberia, without distinction whatsoever, may establish and join organizations of their own choosing, without prior authorization, and subject only to the rules of the organization concerned.

The Act also provides protections for workers who choose to organize or to join unions. These provisions prevent employers or their representatives or others acting on their behalf from threatening any worker for joining a union, requiring a worker to give up his/her union membership, or reward or promise to reward a worker in return for his/her refusal to join a trade or labor union (§ 2.11 Protection of workers’ freedom of association

 In spite of these legal guarantees, the Civil Service Law of Liberia prevents workers in the public sector from forming unions, I.e., from exercising their rights to form or to join trade unions, to engage in collective bargaining and other forms of collective action for their mutual aid. This does not only violate the fundamental rights of these workers to freedom of Expression and Association, it constitutes a violation of Liberia’s legal obligation under international law, particularly ILO standards and covenants to which Liberia is a party.   To rectify this injustice Liberian labor law and policy must be revised to ensure that “all” workers have the right to organize and to engage in collective bargaining and other collective action for their mutual aid. As indicated earlier, the Constitution of the ILO requires that member states take action to ensure that their laws, policies and practices meet ILO standards.

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