• The difficulties monitors face in identifying and "measuring" freedom of association compliance;
• The complex task facing FLA companies trying to remedy freedom of association violations;
• The problem of blacklisting of union supporters in Central America; and
• The problematic labor law contexts in certain countries.

Improving FLA Monitoring

In the first two years of FLA independent external monitoring, the FLA observed that monitors seemed to have underreported the incidence of noncompliance with the FLA Code provision for freedom of association. As a result, the FLA has provided additional guidance to monitors, which has included an explanation of the ILO Conventions and Recommendations, a review of the situation in export processing zones and countries like China and Vietnam, guidance on how to investigate cases at factory level, and a set of 'frequently asked questions'. The FLA also developed a new audit instrument for use in monitoring factories, and discussed effective monitoring for freedom of association during trainings for monitors regarding use of the instrument. The FLA foresees that such guidance will lead to improved detection of freedom of association noncompliance.

Improving Remediation

As with all Code provisions, however, the task of identifying issues is less than half the battle. The real challenge lies in effecting real change in the way workers experience those rights. In the case of freedom of association, that involves not only the creation of an environment in which workers and management understand workers' rights and how to exercise them, but also a set of policies and procedures to protect those rights and avoid abuse. In practice, it is often in the exercise of management functions, such as hiring, discipline, and termination, and in the processing of grievances that freedom of association is abused. If a company does not have sound policies and procedures covering those functions, there is a real risk of non-compliance. In addition, if the staff responsible for hiring, firing, and disciplining workers is not properly trained in the policies and procedures, the risk of non-compliance increases. Moreover, if there is not a solid grievance procedure and complaints mechanism available to workers, those violations may go unchallenged.

During the reporting period, the FLA faced cases where management asked job applicants about their support for unions (and did not hire workers if they expressed support) and other cases where known union members were forced to resign from their positions. When the FLA investigated those situations, it found that the factories concerned did not have the policies, procedures, trained staff, or complaints mechanisms necessary to prevent such abuses. The remedies open to FLA companies in such cases are very practical and include the installation of appropriate policies and procedures and the training of the staff responsible for the relevant functions in factories. In other cases the remedies are far more complex and involve changing attitudes and even workplace culture. Such processes require a long-term, specialized effort. In many cases, FLA companies face a severe shortage of local organizations capable of providing consultancy and capacity-building services to effectively redress these serious issues. The third party complaints included in this report offer some interesting examples of ways in which companies addressed these kinds of issues.

Respect for freedom of association does not require companies to promote trade unions. Companies are expected to make workers and managers aware of the right to freedom of association and to ensure that any worker or manager can exercise that right in practice. To that end, it may be necessary for an FLA company to provide education and training and to strengthen policies, procedures, and structures within the factory (including structures of consultation and negotiation with workers). However, companies must avoid any action that could be construed as intervention in workers' organizational activities, since, according to ILO standards, management intervention in organizing may represent a different kind of infringement on workers' freedom of association.

Region- and Country- Specific Efforts

The Central American region has presented a very clear case of the risks and remedies discussed above. In 2003, a number of participating companies reported concern that free trade zones in the region were compiling blacklists of workers who zone authorities considered to be undesirable. Some of those lists contained as many as 15 categories of persons who were prevented from seeking employment in the zone. In many cases, factories located in the zones cooperate in the compilation of the lists by submitting to the zone authority details about workers they have dismissed. Authorities, in turn, circulate the names of the dismissed workers to all the factories in the zone, making it impossible for those workers to find other employment in the zone.

In response to this widespread practice, the FLA established the FLA Central American Project in 2004. To address the practice of blacklisting, the project works with governments, zone authorities, managers, and workers to ensure that equality of opportunity exists in zones and that associational rights are not violated in employment relationships in facilities where FLA companies produce. Best-practice policies and procedures for dealing with hiring, termination, discipline, and grievance handling will be installed at participating factories, and training will be provided. The practice of inducing union supporters to resign by offering them cash benefits will also be addressed. By involving FLA companies as well as non-FLA companies in the project, and by targeting entire zones or regions, the FLA hopes that the project will have a ripple effect in the region and elsewhere. The FLA Central America Project is ongoing, and outcomes and learning from the project will be reported in greater detail in the FLA's Year Three Public Report.

As discussed elsewhere in this report, the labor law environments of a number of countries complicate the enjoyment of associational rights. In this regard, the FLA has focused on Bangladesh, China, Mexico, and Vietnam, in particular, to think creatively about how to improve freedom of association in factories in these countries. The FLA Monitoring Committee has discussed specific strategies that companies may employ in those countries to ensure that workers are able to choose their representatives and that workers' organizations function democratically.

The FLA was also directly involved in the resolution of a number of third-party complaints dealing with freedom of association (click here to access third-party complaint case studies). One of the most interesting aspects of those cases is that once the initial situations of conflict were resolved and agreements were reached, the real work of implementing and abiding by the agreements began. Both workers' and managers' lack of experience in labor relations, however, complicated the process. The skills that were lacking ranged from how to negotiate to how to run a meeting to how to listen and problem-solve. Unfortunately the basic competencies required to make a labor-management relationship function are generally not taught at vocational and management schools. The parties involved in efforts to remediate freedom of association noncompliance invariably find themselves at odds over procedural and attitudinal problems as much as over the core issues of terms and conditions of work. Training in the basic skills of listening, negotiating, resolving disputes, and concluding agreements would go a long way toward ensuring respect for freedom of association.

The FLA will continue to improve the competencies of its staff and its partners to facilitate resolution of complex freedom of association issues in the coming year through ongoing training and innovation. Dealing with freedom of association in diverse situations will remain challenging for the FLA and the larger labor standards community for years to come. The FLA looks forward to cooperating with diverse actors to develop methods and share learning -- and to enhance workers' ability to exercise freedom of association around the world.

Click here to read case studies about FLA Third Party Complaints that deal with freedom of association

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