ARTICLE 2 OF CONVENTION NO.87: PRECEPTS AND THEIR APPLICATION — A GLOBAL ASSESSMENT

Abstract

It has been said of most instruments that attempt to guarantee basic rights that they usually give with one hand what they then retrieve with the other. Convention No.87 provides, in Article 2, the right for “workers and employers, without distinction whatsoever to establish and subject, only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation”. By Article 8 (1) however, the forces of freedom unleashed in Article 2 are bridled. “In exercising the rights provided for in this Convention, workers and employers and their respective organisations, like other persons or organised collectives, shall respect the law of the land”. And the provisions of Article 9(1) make it possible for the Police and the Army to forego that right: “The extent to which the guarantees provided for in this convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” Such a situation creates a rife hotbed for claims and counter‐claims between any of the three main players in industrial relations, namely, the state, the employer, and the employee. Besides, Article 8 (1) makes very generous assumptions of national law. When read with the rest of this Convention, Article 8 seems to suggest that all States are in some way, oriented towards the pluralistic frame of reference in their labour law; recognising that in the employment relationship, there is not one, but several sources of authority. Pluralism holds that employers and employees interests are diametrically opposed to each other, and that they are held in the balance by the common need of keeping the enterprise alive. For pluralists, the trade union is a welcome vehicle for communication. But is such an assumption realistic? What becomes of workers and employers in State “X”, whose frame of reference in labour law is strictly unitary; holding that there is only one legitimate source of authority in the employment situation: the employer? The interests of the worker and the employer are said to be the same. The trade union is therefore an unnecessary and unwelcome threat to stability? Further, does Article 8 allow such a State to maintain its legislation over the minimum standards of the Convention as set in Articles 1 to 7?

Citation

Tendai Chigara, B. (1995), "ARTICLE 2 OF CONVENTION NO.87: PRECEPTS AND THEIR APPLICATION — A GLOBAL ASSESSMENT", Managerial Law, Vol. 37 No. 6, pp. 1-20. https://doi.org/10.1108/eb022463