Public servants and state administration workers: untangling rights

Abstract

24 | International Union Rights | 26/1 FOCUS | UNION RIGHTS OF STATE ADMINISTRATION AND ESSENTIAL SERVICES WORKERS ILO Convention 151 overlaps with Convention 98, and also parallels rights found under Convention 135. Its applicability to public sector workers takes a little unpacking ILO Convention No. 151 (C151), adopted in 1978, is a legal instrument that requires ratifying States to establish and promote collective bargaining in public services. It is, in itself, a reasonably straightforward instrument, establishing a regime of protection against acts of anti-union discrimination, requiring that employers be prevented from interfering in trade union independence, and requiring the provision of facilities to carry out trade union work. It also establishes a right to collective ‘participation’ or ‘negotiation’, which is a somewhat weaker standard than collective ‘bargaining’. If a country that has ratified no other trade union rights instruments ratifies C151 then the instrument establishes these rights for almost all public sector workers. But the effect and relevance of C151 becomes much more difficult to explain where it overlaps with other ILO instruments, because it has strong parallels and overlaps with Convention No. 98 (C98), which maps out the stronger concept of ‘collective bargaining’ rights, and it also parallels trade union ‘facility’ rights, found under Convention No 135 (C135). The rights established vary depending on whether one, both or all three of these instruments are ratified, and they vary again depending on whether a given worker falls within a number of categories that can be exempted from C98, notably the ILO’s concept of a worker involved in the administration of the State. The situation becomes more complicated by the existence of a third category, of certain workers who can be exempted not only from C98, but also from some of the rights established under C151. It is a situation that seems frequently to have sparked confusion, in some cases perhaps innocent mistake, in other cases seemingly a more wilful misconstruction of the ILO position. In order to make sense of how the instruments apply for different groups of workers, it is useful to conceptualise public servants as falling into three distinct groups: 1) Most public sector workers For most public sector workers in most countries of the world, the basic position is relatively simple. These workers are entitled to collective bargaining to the same standard as their private sector counterparts. Where C98 is ratified, these rights ought to be fully respected and implemented by their Governments (whether this happens in practice, of course, is another matter). Within this category fall a very wide range of workers, among them are teachers, and most local and national government workers. In so far as their basic organising and bargaining rights are concerned, groups such as firefighters ought to be understood as falling within this category (though in practice governments often try to reclassify them, and to exclude them from these rights). C151 ought only to be relevant to this group where it goes beyond C98 by requiring the provision of ‘facilities’ to support trade union work. In other words, it only adds to their level of rights protection in the eleven countries that have ratified C151, but which have not already ratified C135. Every other C151-ratifying country has also ratified both C98 and C135, and these instruments already provide these workers with a framework that is at least equivalent to C151, and which is also somewhat stronger, particularly in respect of collective bargaining. 2) State administration workers For those workers classed by ILO as involved with the administration of the State, (and a number of other categories of State workers), C151 has an altogether different impact than it does for public sector workers generally. This article refers to this group as ‘state administration workers’. This is a relatively narrow group of workers, despite frequent government attempts to apply the term more broadly. It principally consists of civil servants within government ministries. The ILO’s guidance as to which workers fall into this category is sketched out below under the sub-heading ‘who falls into these categories?’. This group of workers can be exempted from C98 – and thus from that instrument’s collective bargaining framework. For these workers, the C151 framework of...