 |
Disclaimer webinfo@ilo.org |
Legislation on the subject and interference by the authorities (Right of organizations to draw up their constitutions and rules)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0601 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060601 Legislation on the subject and interference by the authorities (See also paras. 392, 401, 405, 427, 430 and 473)369. Legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. Restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body so as to avoid any risk of excessive or arbitrary interference in the free functioning of organizations. (See the 1996 Digest, para. 331; and 321st Report, Case No. 2011, para. 215.) 370. In the Committee’s opinion, the mere existence of legislation concerning trade unions in itself does not constitute a violation of trade union rights, since the State may legitimately take measures to ensure that the constitutions and rules of trade unions are drawn up in accordance with the law. On the other hand, any legislation adopted in this area should not undermine the rights of workers as defi ned by the principles of freedom of association. Overly detailed or restrictive legal provisions in this area may in practice hinder the creation and development of trade union organizations.(See the 1996 Digest, para. 332; and 302nd Report, Case No. 1817, para. 326.) 371. To guarantee the right of workers’ organizations to draw up their constitutions and rules in full freedom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities.(See the 1996 Digest, para. 333; 302nd Report, Case No. 1817, para. 323; 321st Report, Case No. 2011, para. 215; 327th Report, Case No. 2115, para. 681; 330th Report, Case No. 2207, para. 907; 332nd Report, Case No. 2115, para. 114, and Case No. 2207, para. 119; and 335th Report, Case No. 2308, para. 1041.) 372. Requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws. In fact, any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3, paragraph 2, of the Convention.(See 318th Report, Case No. 2038, para. 529.) 373. A provision that union rules shall comply with national statutory requirements is not in violation of the principle that workers’ organizations shall have the right to draw up their constitutions and rules in full freedom, provided that such statutory requirements in themselves do not infringe the principle of freedom of association and provided that approval of the rules by the competent authority is not within the discretionary powers of such authorities.(See the 1996 Digest, para. 334.) 374. The drafting by the public authorities themselves of the constitutions of central workers’ organizations constitutes a violation of the principles of freedom of association.(See the 1996 Digest, para. 335; and 299th Report, Case No. 1772, para. 132.) 375. Where the approval of trade union rules is within the discretionary powers of a competent authority, this is not compatible with the generally accepted principle that workers’ organizations shall have the right to draw up their constitutions and rules in full freedom.(See the 1996 Digest, para. 336.) 376. The existence of a right to appeal to the courts in connection with the approval of by-laws does not in itself constitute a suffi cient guarantee. This would not change the nature of the powers conferred on the administrative authorities and the courts would only be able to ensure that the legislation had been correctly applied. The courts should, therefore, be entitled to re-examine the substance of the case, as well as the grounds on which an administrative decision is based.(See the 1996 Digest, para. 337.) 377. A legal provision which authorizes the government in certain circumstances to object to the setting up of a trade union within a period of three months from the date of registration of its by-laws is in contradiction with the basic principle that employers and workers should have the right to establish organizations of their own choosing without previous authorization.(See the 1996 Digest, para. 338.) 378. The existence of legislation which is designed to promote democratic principles within trade union organizations is acceptable. Secret and direct voting is certainly a democratic process and cannot be criticized as such.(See the 1996 Digest, para. 339.) 379. The listing in the legislation of the particulars that must be contained in a union’s constitution is not in itself an infringement of the right of workers’ organizations to draw up their internal rules in full freedom.(See the 1996 Digest, para. 340; and 306th Report, Case No. 1884, para. 690.) 380. A mandatory list of functions and aims that associations must have that is excessively extensive and detailed may in practice hinder the establishment and development of organizations.(See the 1996 Digest, para. 341.) 381. Amendments to the constitution of a trade union should be debated and adopted by the union members themselves.(See the 1996 Digest, para. 342; and 302nd Report, Case No. 1817, para. 323.) 382. In some countries the law requires that the majority of the members of a trade union – at least at a first vote – decide on certain questions which affect the very existence or structure of the organization (adoption and amendments of the constitution, dissolution, etc.). In such cases involving basic matters relating to the existence and structure of a union or the fundamental rights of its members, the regulation by law of majority votes for the adoption of the decisions involved does not imply interference contrary to the Convention, provided that this regulation is not such as to seriously impede the running of a trade union, thereby making it practically impossible to adopt the required decisions in the prevailing circumstances, and provided that the purpose is to guarantee the members’ right to participate democratically in the organization.(See the 1996 Digest, para. 343.) 383. The insertion in the constitution of a trade union, on the decision of the public authorities, of a clause whereby the trade union must forward annually to the ministry a series of documents – namely a copy of the minutes of the last general assembly indicating precisely the names of the members present, a copy of the general secretary’s report, as approved by the assembly, a copy of the treasurer’s report, etc. – and where failure to do so within a prescribed period will result in the union being considered as having ceased to exist – is incompatible with the principles of freedom of association.(See the 1996 Digest, para. 345.) |
| ILO Home | NORMES home | ILOLEX home | Universal Query | NATLEX |
|
Disclaimer webinfo@ilo.org |