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701. No person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned.
(See the Digest of 1985, para. 552.)
702. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.
(See 281st Report, Case No. 1510, para. 94.)
703. The necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish.
(See 281st Report, Case No. 1580, para. 158.)
704. The dismissal of workers because of a legitimate strike constitutes discrimination in employment.
(See 243rd Report, Case No. 1296, para. 276.)
705. Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.
(See 256th Report, Case No. 1437, para. 237(a); and 262nd Report, Case No. 1467, para. 224.)
706. In a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts.
(See 241st Report, Case No. 1287, para. 229.)
707. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities.
(See the Digest of 1985, para. 547; 211th Report, Case No. 1053, para. 163; 241st Report, Case No. 1287, para. 227; 292nd Report, Case No. 1625, para. 70; and 295th Report, Case No. 1729, para. 36.)
708. Where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons who could be affected by such measures.
(See the Digest of 1985, para. 553.)
709. All practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices.
(See 259th Report, Case No. 1420, para. 233; 283rd Report, Case No. 1618, para. 452; 287th Report, Case No. 1618, para. 267; and 297th Report, Case No. 1618, para. 22.)
710. Workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment.
(See 287th Report, Case No. 1618, paras. 264 and 265.)
711. The practice of blacklisting workers seriously undermines the exercise of trade union rights.
(See 272nd Report, Case No. 1510, para. 522.)
712. A deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities.
(See the Digest of 1985, para. 560.)
713. With regard to special committees set up under a law with a view to granting or refusing the "certificates of loyalty" required of certain workers in public utility undertakings if they were to be engaged or retained in service, the Committee recalled the desirability of ensuring that the special committees in question should not be used in such a manner as to give rise to anti-union discrimination.
(See the Digest of 1985, para. 574.)
714. Noting in one case that conditions approaching civil war prevailed, the Committee considered that special restrictions for the purpose of eliminating sabotage in public utility undertakings should not in any case be such as to give rise to anti-union discrimination.
(See the Digest of 1985, para. 575.)
715. The government's obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or directly or indirectly threaten unionized workers and their organizations.
(See 268th Report, Case No. 1495, para. 244.)
716. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.
(See the Digest of 1985, para. 550.)
717. In one case, the Committee found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of the seven members of their union committee.
(See the Digest of 1985, para. 555.)
718. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.
(See the Digest of 1985, para. 549.)
719. The right of petition is a legitimate activity of trade union organizations and persons who sign such trade union petitions should not be reprimanded or punished for this type of activity.
(See 283rd Report, Case No. 1479, para. 97.)
720. In no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination.
(See 297th Report, Case No. 1685, para. 446.)
721. In one case, the Committee expressed its concern at the fact that workers could lose their employment on account of absence from their jobs as a result of their having been arrested or sentenced because they were presumed or proved to have been engaging in activities which, under the national legislation, were deemed offences but which, according to generally recognized principles, should be considered as normal and lawful trade union activities. Not only did the workers lack protection against acts of anti-union discrimination in respect of their employment, but the law of the land itself impaired the essential guarantees in respect of freedom of association.
(See the Digest of 1985, para. 548.)
722. It is inconsistent with the right to strike for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of the strike, lockout or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal.
(See 277th Report, Case No. 1540, para. 92.)
723. Bipartite talks and the administrative procedure of permission to dismiss do not accord sufficient protection to workers against acts of anti-union discrimination when the legislation currently in force allows an employer merely to invoke "lack of harmony in the working relationship" to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association.
(See 295th Report, Case No. 1756, para. 414.)