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Article 8: The right to form and join trade unions.

1. The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International Labor Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

Comment:

Article 8 obligates States to implement the fundamental human right of workers to form and join trade unions. At the same time, it provides a person with the right not to join a particular trade union. The right to collective bargaining, the right to protection from dissolution or suspension, and the right to strike also are protected. These rights relate closely to the right to freedom of association, a principle recognized throughout international human rights law.

States are allowed some measure of discretion concerning national security and the rights of freedom of others. However, any limitation on the right to form and join a trade union must, in fact, be necessary (it responds to a pressing social need, pursues a legitimate aim, and is proportional to that aim), and, be established by a law that is not arbitrary, unreasonable, or discriminatory. (39) States may not invoke national security or a low level of economic development to prevent trade unionism.

States must closely monitor economic sectors where women predominate to ensure the implementation of the rights provided for in Article 8. These sectors include domestic workers, agricultural work, home-based work, female-dominated industries, and the informal sector. For example, domestic work, which is largely done by women, is often characterized by biases based on nationality, race, and class. It is notorious for preventing collective bargaining and the formation of trade unions. Domestic workers often are prevented from leaving their place of work unless authorized by the employer. This can prevent the establishment of relationships outside the household, including the formation or joining of trade unions.

States should ensure women the right to participation in public life. The extent to which women are allowed to participate in public life determines their ability to form and join trade unions.

The Committee has expressed concern over constitutional prohibitions of union membership by workers employed in women-dominated sectors, such as public servants, teachers, and nurses, and over permission for arrest of striking workers. (4) It also has expressed concern where existing labor legislation is ineffective in protecting unionization and the rights of unionized workers, including the right to strike. (5)

Questions to ask:

1. What percentage of the work force is unionized? Are trade unions more prevalent in certain sectors? Are persons with disabilities and older workers unionized? Identify those sectors where trade unions are not prevalent. Are any of these sectors women-dominated?

2. Do laws or regulations exist that prohibit workers in certain sectors from joining unions? Do those laws apply equally to male- and female-dominated work sectors?

3. Are workers in women-dominated economic sectors afforded the same rights to organize as those in male-dominated sectors?

4. What percentage of women in the workforce is unionized? What legal or cultural barriers exist that prevent or hinder women from forming or joining trade unions and/or engaging in collective bargaining? Has the State taken measures to address these barriers? How effective have those measures been?

5. Are women in leadership positions in unions? Are women involved in bargaining and organizing?

6.. If a national labor council exists, are women represented on it?

7. Are workers in women-dominated economic sectors afforded the same rights to organize as those in male-dominated sectors?

(39) Limburg Principles, paras. 48-51, 59-60, 9 Human Rights Quarterly 122 (1987).

(4) Concluding Observations of the CESCR: Zimbabwe.20/05/1997. E/C.12/1/Add.12.

(5) Concluding Observations of the CESCR: Peru. 16/05/1997. E/C.12/1/Add.14.
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Title Annotation:EQUALITY AND WOMEN'S ECONOMIC SOCIAL AND CULTURAL RIGHTS: A Guide to Implementation and Monitoring Under the International Covenant on Economic, Social and Cultural Rights
Publication:Equality and Women's Economic, Social and Cultural Rights
Date:Jan 1, 2004
Words:850
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