Freedom of Association: Essential to Compliance

Freedom of association is crucial to sustainable improvements in working conditions. The right to freely associate and bargain collectively is identified as a fundamental workplace right by the International Labor Organization (ILO), is protected under the Universal Declaration of Human Rights, and is a key provision of the FLA Code of Conduct. Freedom of association provides workers with the choice to form or join organizations. As such, it is a means through which workers can defend their rights and interests in the workplace and serves as a foundation upon which to build and ensure respect for other labor rights.

The rights to freely associate and to collectively bargain are essential to developing long-term compliance in factories covered by the FLA Code, because they provides workers with the tools to monitor and enforce their rights at work. Yet freedom of association is also one of most difficult Code elements to investigate and remediate. In Year Two of the FLA monitoring program, freedom of association continued to present challenges in monitoring and remediation, prompting the FLA to undertake initiatives to address some of these challenges at both the factory and national levels.

Freedom of Association: Challenging to Implement

The exercise of freedom of association is affected by various legal, political, and economic conditions. FLA monitors must therefore be familiar with local laws and regulations, labor market conditions, the degree of labor law enforcement, prevailing management practices, and the level of worker organization in the area where monitoring is to take place. The monitor must identify any discrepancies between the FLA Code and local law, highlight risk factors present in that the relevant labor market, and then assess the specific practices in the facility being monitored.

For each of the Code provisions, the FLA monitoring process requires monitors to gather information from various sources and then to cross-check and substantiate those findings before reporting on the factory's compliance status. For example, when assessing a "concrete" issue, such as a health and safety requirement, monitors can apply quantitative measurements to determine compliance status. However, for freedom of association, assessing the situation in a factory generally involves a qualitative assessment of the labor-management relationship in order to establish whether management restricts workers ability to associate freely. An analysis of the labor-management relationship at a given facility requires a comprehensive investigation of the various levels of interaction between labor and management - from hiring through termination - to identify any practices that may interfere with workers' rights to form and join organizations of their choice. Interviews with workers are a crucial source of information and insight into their freedom of association. This process can sometimes be hindered by the reluctance of workers to openly discuss abuses for fear of retaliation from management. Monitors need to be particularly sensitive to detect whether workers are being coached or intimidated by management. Training monitors in effective interviewing and listening techniques; ensuring that all interviews are conducted in discreet manner, either off-site or in a factory location that is private; and developing the methodology used by monitors to research and cross-check information are among the actions taken by the FLA to enhance monitors' capacities to detect noncompliance relating to freedom of association.

The legal and political context in a country may also pose a challenge to implementation of freedom of association. In various countries, the right to freely associate has been limited, either across the entire country, as in China and Vietnam, or, as has become more common in recent years, in particular areas set aside by the government to attract foreign investment. Bangladesh, for example, has a history of limiting freedom of association in export processing zones, where a great deal of the country's apparel production takes place. In other countries, relatively high rates of reported union membership may mask limitations on freedom of association. For example, Mexico's legal system allows for clauses in collective bargaining agreements that essentially require workers in a given enterprise to join the union that signed the agreement there, regardless of whether the union actively represents the interests of workers at the enterprise. Particularly in cases where unions collude with management, workers' rights and interests often go unprotected in this context, despite union presence.

There are many other countries around the world that have not formally limited freedom of association in law, but nevertheless fail to protect the right in practice. Without adequate enforcement, the de facto situation for workers is the same as where legal limitations on freedom of association are on the books. In some cases, legal authorities actually participate in unlawful anti-union activities, including intimidation, harassment and abuse, illegal arrests, etc. In countries with poor enforcement of the right to freedom of association or official involvement in anti-union activity, workers are not able to choose to form or join unions. It is in these countries that companies committed to the principle of freedom of association can influence factory management to obey the law.