Social dialogue, workers’ and employers’ representation

1. Worker organisation: An autonomous voluntary association of workers organised for the purpose of furthering and defending the rights and interests of workers.
2. Collective bargaining agreement: A contract specifying the terms and conditions for work, negotiated between the organisation (e.g. employer) or group of employers and one or more worker organisation(s).
3. SA8000 worker representative(s): One or more worker representative(s) freely elected by workers to facilitate communication with the management representative(s) and senior management on matters related to SA8000. In unionised facilities the worker representative(s) shall be from the recognised trade union(s), if they choose to serve. In cases where the union(s) does not appoint a representative or the organisation is not unionised, workers may freely elect the worker representative(s) for that purpose. (Note: The SA8000 worker representative should not be seen as a substitution for a union representative in organisations where workers choose to organise.)

All personnel shall have the right to form, join and organise trade union(s) of their choice and to bargain collectively on their behalf with the organisation. The organisation shall respect this right and shall effectively inform personnel that they are free to join a worker organisation of their choosing without any negative consequences or retaliation from the organisation. The organisation shall not interfere in any way with the establishment, functioning or administration of workers’ organisation(s) or collective bargaining.

Ensure Freedom of Association (FOA)
SA8000 4.1 requires organisations to ensure that their workers have the freedom to form, join and organise any trade union they choose, free of any form of interference or competing organisations set up or backed by the employer. The emphasis here is on two major and unbreakable principles:
a.    First, it is workers who solely and affirmatively have these rights, which only they can exercise.
b.    Second, the employer is not permitted to interfere with the exercise of these rights.
As part of SA8000 4.1, the organisation is also required to effectively inform personnel about these rights. Therefore, to meet the expectations of SA8000 Standard, the organisation should be able to demonstrate that it effectively, objectively, and transparently communicates to workers their right to join or form trade unions. This requirement does not allow employers to interfere in workers’ free choice when considering unionization, as it is the worker’s choice whether he/she joins a trade union. The organisation’s duty here is to permit workers’ full exercise of their rights by informing them in an unbiased manner of their option to organise. The critical dividing line is that communications from the organisation or its representatives cannot go beyond neutrality on workers’ decisions about organising. Some strategies for that communication include:
1.    Development of an organisation-wide freedom of association policy, with clear statements and references to national law and international standards. This can be incorporated into the organisations general SA8000 policy (see 9.1 Policies, Procedures and records)
2.    Clear statement and reference to freedom of association in the human resources policy
3.    Inclusion of freedom of association in orientation or other ongoing training
4.    Posting the policies for freedom of association and collective bargaining visibly throughout the workplace in languages that workers understand.
Collective Bargaining
SA8000 4.1 also requires the organisation to respect and participate in workers’ ability to bargain collectively. As noted in Convention 98, Article 4, collective bargaining is “voluntary negotiation” between employers and organisations of workers in order to establish “the regulation of terms and conditions of employment by means of collective agreements.” The organisation should be able to demonstrate that the union or otherwise named workers’ organisation that negotiates with the employer was chosen freely by the workers and meets the ILO criteria for independence. Notably, the employer is expected to bargain in good faith and not engage in undue litigation or other actions to slow, stop or limit the bargaining process.
 

In situations where the right to freedom of association and collective bargaining are restricted under law, the organisation shall allow workers to freely elect their own representatives.

The organisation shall ensure that union members, representatives of workers and any personnel engaged in organising workers are not subjected to discrimination, harassment, intimidation or retaliation for being union members, representative(s) of workers or engaged in organising workers, and that such representatives have access to their members in the workplace

Non-Discrimination
The organisation is required to ensure that workers are not subjected to discrimination, harassment,
intimidation or retaliation related to participation in unions or organising. In addition to not discriminating against these workers, SA8000 also specifically prohibits employers from harassing, intimidating and retaliating against them. As explained in Article 1 of Convention 98, the organisation must not “make the employment of a worker subject to the condition that s/he shall not join a union or shall relinquish trade union membership” and must not “cause the dismissal of or otherwise prejudice a worker by reason of trade union membership or because of participation in trade union activities outside working hours or, with the consent of the employer, within working hours.12” This provision clarifies, emphasizes and expands protection-- from any type of employer discrimination and reprisals for: a) worker representatives (i.e. union leaders); b) people in the process of organizing workers; and c) union members. The intention is to protect all personnel involved with trade unions or worker organisations, in whatever capacity, from negative consequences or retaliation for exercising their rights of freedom of association and collective bargaining. However, SA8000, in conformance with ILO provisions, does not require that employers permit union activities during working hours unless they have formally granted permission.
Non-interference
As noted above, employers are prohibited from interfering in any aspect of organizing or collective bargaining. Employer support of organisations that compete with freely elected trade unions, including when the intent is employer control of the organisation, is considered interference and is prohibited. Cases have arisen where worker committees not meeting the legal requirements for establishing a trade union have been favoured and subsequently recognized by an employer. Convention 98, Article 2, prohibits, in particular, “acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations.”
Locations with restrictions on trade unions
If the organisation operates in a location where the state interferes with freedom of association and collective bargaining, SA8000 4.2 requires the organisation to allow workers, without fear of retaliation, unimpeded right to comparable collective representation.