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Registration of organizations (Right of workers and employers to establish organizations without previous authorization)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0404 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060404 Registration of organizations 294. If the conditions for the granting of registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention. (See the 1996 Digest, para. 259; 307th Report, Case No. 1918, para. 250; and 325th Report, Case No. 2100, para. 429.) 295. The right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately.(See 324th Report, Case No. 2053, para. 232.) 296. Although the registration procedure very often consists in a mere formality, there are a number of countries in which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorization is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude; these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization.(See the 1996 Digest, para. 260; 327th Report, Case No. 1581, para. 110; and 328th Report, Case No. 2158, para. 321.) 297. The administrative authorities should not be able to refuse registration of an organization simply because they consider that the organization could exceed normal union activities or that it might not be able to exercise its functions. Such a system would be tantamount to subjecting the compulsory registration of trade unions to the previous authorization of the administrative authorities.(See the 1996 Digest, para. 261.) 298. A provision whereby registration of a trade union may be refused if the union “is about to engage” in activities likely to cause a serious threat to public safety or public order could give rise to abuse, and it should therefore be applied with the greatest caution. The refusal to register should only take place under the supervision of the competent judicial authorities where serious acts have been committed, and have been duly proven.(See the 1996 Digest, para. 262.) 299. The obligation for trade unions to obtain the consent of a central trade union organization in order to be registered must be removed.(See the 1996 Digest, para. 263.) 300. An appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration.(See the 1996 Digest, para. 264; 307th Report, Case No. 1918, para. 251; 308th Report, Case No. 1894, para. 537; and 334th Report, Case No. 2222, para. 208.) 301. A decision to prohibit the registration of a trade union which has received legal recognition should not become effective until the statutory period of lodging an appeal against this decision has expired without an appeal having been lodged, or until it has been confirmed by the courts following an appeal. (See the 1996 Digest, para. 265; and 333rd Report, Case No. 2301, para. 594.) 302. Where a registrar has to form his or her own judgement as to whether the conditions for the registration of a trade union have been fulfilled, although an appeal lies against the registrar’s decisions to the courts, the Committee has considered that the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal would only be able to ensure that the legislation has been correctly applied. The Committee has drawn attention to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not.(See the 1996 Digest, para. 266; and 333rd Report, Case No. 2301, para. 594.) 303. Where the difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers create situations where competent authorities make excessive use of their powers, problems of compatibility with Convention No. 87 may arise.(See 330th Report, Case No. 2038, para. 156.) 304. Judges should be able to deal with the substance of a case concerning a refusal to register so that they can determine whether the provisions on which the administrative measures in question are based constitute a violation of the rights accorded to occupational organizations by Convention No. 87.(See the 1996 Digest, para. 267; 307th Report, Case No. 1918, para. 251; and 333rd Report, Case No. 2301, para. 594.) 305. Normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities; and the fact that an organization which seeks to enjoy the status of an occupational organization might in certain cases engage in activities unconnected with trade union activities would not appear to constitute a suffi cient reason for subjecting trade union organizations a priori to control with respect to their composition and with respect to the composition of their management committees. The refusal to register a union because the authorities, in advance and in their own judgement, consider that this would be politically undesirable, would be tantamount to submitting the compulsory registration of trade unions to previous authorization on the part of the authorities, which is not compatible with the principles of freedom of association.(See the 1996 Digest, para. 268; 307th Report, Case No. 1918, para. 251; and 333rd Report, Case No. 2301, para. 591.) 306. In a legal system where registration of a workers’ organization is optional, the act of registration may confer on an organization a number of important advantages such as special immunities, tax exemption, the right to obtain recognition as exclusive bargaining agent, etc. In order to obtain such recognition, an organization may be required to fulfil certain formalities which do not amount to previous authorization and which do not normally pose any problem as regards the requirements of Convention No. 87.(See the 1996 Digest, para. 269.) 307. A long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization.(See 338th Report, case No. 2273, para. 294.) 308. A period of one month envisaged by the legislation to register an organization is reasonable.(See 337th Report, Case No. 2244, para. 1261.) |
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