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Requirements for the establishment of organizations (minimum number of members, etc.) (Right of workers and employers to establish organizations without previous authorization)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0403 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060403 Requirements for the establishment of organizations (minimum number of members, etc.) (See also para. 681)279. The formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87. (See the 1996 Digest, paras. 249 and 251; 308th Report, Case No. 1894, para. 536; 316th Report, Case No. 1773, para. 615; 324th Report, Case No. 2053, para. 231; 332nd Report, Case No. 2225, para. 377; and 334th Report, Case No. 2282, para. 638.) 280. National legislation providing that an organization must deposit its rules is compatible with Article 2 of Convention No. 87 if it is merely a formality to ensure that those rules are made public. However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association.(See 318th Report, Case No. 2038, para. 530.) 281. Employers’ occupational associations should not be restricted by excessively detailed provisions which discourage their establishment, contrary to Article 2 of Convention No. 87, which provides that employers, as well as workers, shall have the right to establish organizations of their own choosing without previous authorization.(See the 1996 Digest, para. 252; and 333rd Report, Case No. 2133, para. 59.) 282. The requirement that a trade union shall have a registered office is a normal requirement in a large number of countries.(See the 1996 Digest, para. 253; and 318th Report, Case No. 2038, para. 530.) 283. A minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations must be reduced in consultation with the workers’ and employers’ organizations.(See the 1996 Digest, para. 254; and 325th Report, Case No. 2098, para. 543.) 284. The establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 50 founder members.(See the 1996 Digest, para. 255; 316th Report, Case No. 1996, para. 662; and 336th Report, Case No. 2153, para. 166.) 285. Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, this minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.(See the 1996 Digest, para. 257.) 286. The legal requirement laid down in the Labour Code for a minimum of 30 workers to establish a trade union should be reduced in order not to hinder the establishment of trade unions at enterprises, especially taking into account the very significant proportion of small enterprises in the country.(See 327th Report, Case No. 2138, para. 539.) 287. While a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fi xed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed.(See 336th Report, Case No. 2332, para. 703.) 288. A minimum membership requirement of 30 per cent of the workers concerned to establish an organization is too high.(See 306th Report, Case No. 1862, para. 102; and 337th Report, Case no. 2327, para. 200.) 289. Provisions which impose a membership requirement of 30 per cent of the total number of workers employed in the establishment concerned for a union to be registered and which permit dissolution if membership falls below that level are not in conformity with Article 2 of Convention No. 87.(See 306th Report, Case No. 1862, para. 102.) 290. Where the legislation provided that a trade union should consist of more than 50 per cent of the workers, if it was a workers’ union; more than 50 per cent of the salaried employees, if it was a union of salaried employees; and more than 50 per cent of both categories if it was a mixed union, the Committee recalled that such a provision was not in conformity with Article 2 of Convention No. 87, and that it placed a major obstacle in the way of the establishment of trade unions capable of “furthering and defending the interests” of their members; moreover, the provision had the indirect result of prohibiting the establishment of a new trade union whenever a trade union already existed in the undertaking or establishment concerned.(See the 1996 Digest, para. 294.) 291. The minimum membership requirement of 10,000 members for the registration of trade unions at the federal level could infl uence unduly the workers’ free 61 choice of union to which they wish to belong, even when federal registration is only one of the alternatives available for protecting their rights.(See the 1996 Digest, para. 270.) 292. The legal requirement that there be a minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union.(See the 1996 Digest, para. 256; and 316th Report, Case No. 1996, para. 662.) 293. A provision which requires ten or more employers engaged in the same industry or activity, or similar or related industries or activities, to establish an employers’ association imposes an excessively high minimum number and violates the right of employers to establish organizations of their own choosing.(See the 1996 Digest, para. 258.) |
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