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Financial administration of organizations (Right of organizations to organize their administration)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0804 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060804 Financial administration of organizations A. Financial independence in respect of the public authorities 466. The right of workers to establish organizations of their own choosing and the right of such organizations to draw up their own constitutions and internal rules and to organize their administration and activities presuppose financial independence. Such independence implies that workers’ organizations should not be financed in such a way as to allow the public authorities to enjoy discretionary powers over them. (See the 1996 Digest, para. 428; 300th Report, Case No. 1793, para. 267; and 304th Report, Case No. 1865, para. 248.) 467. With regard to systems of fi nancing the trade union movement which made trade unions financially dependent on a public body, the Committee considered that any form of state control is incompatible with the principles of freedom of association and should be abolished since it permitted interference by the authorities in the fi nancial management of trade unions.(See the 1996 Digest, para. 429.) 468. Provisions governing the financial operations of workers’ organizations should not be such as to give the public authorities discretionary powers over them.(See the 1996 Digest, para. 430; 304th Report, Case No. 1865, para. 248; and 306th Report, Case No. 1865, para. 326.) 469. Provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with principles of freedom of association.(See 324th Report, Case No. 1942, para. 41.) 470. A system in which workers are bound to pay contributions to a public organization which, in turn, finances trade union organizations, constitutes a serious threat to the independence of these organizations.(See the 1996 Digest, para. 431.) 471. While trade union training is to be encouraged, it should be provided by the unions themselves; the unions can, of course, take advantage of any material or moral assistance which the government may offer to them.(See the 1996 Digest, para. 432.) 472. Various systems of subsidizing workers’ organizations have very different consequences according to the form which they assume, the spirit in which they are conceived and applied and the extent to which the subsidies are granted as a matter of right, by virtue of statutory provisions, or at the discretion of a public authority. The repercussions which financial aid may have on the autonomy of trade union organizations will depend essentially on circumstances; they cannot be assessed by applying general principles: they are questions of fact which must be examined in the light of the circumstances of each case.(See the 1996 Digest, para. 433.) B. Union dues (See also para. 325)473. Questions concerning the financing of trade union and employers’ organizations, as regards both their own budgets and those of federations and confederations, should be governed by the by-laws of the organizations, federations and confederations themselves, and therefore, constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association. (See the 1996 Digest, para. 434; 326th Report, Case No. 2090, para. 237; and 327th Report, Case No. 2146, para. 895.) 474. The repartition of trade union dues among various trade union structures is a matter to be determined solely by the trade unions concerned.(See 326th Report, Case No. 2090, para. 237.) 475. The withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided.(See the 1996 Digest, para. 435; and, for example, 315th Report, Case No. 1935, para. 23; 318th Report, Case No. 2016, para. 101; 324th Report, Case No. 2055, para. 683; 325th Report, Case No. 2090, para. 165; 329th Report, Case No. 2163, para. 705; 330th Report, Case No. 2206, para. 915; 332nd Report, Case No. 2187, para. 723; 335th Report, Case No. 2330, para. 876; 337th Report, Case No. 2395, para. 1188; and 338th Report, Case No. 2386, para. 1253.) 476. The requirement that workers confi rm their trade union membership in writing in order to have their union dues deducted from their wages does not violate the principles of freedom of association.(See 304th Report, Case No. 1832, para. 36.) 477. The Committee has requested a Government to take the necessary steps to amended the legislation so that workers can opt for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative.(See 304th Report, Case No. 1832, para. 38.) 478. In a case in which the requirements for the deduction of trade union dues from wages included the provision of the worker’s identity document and her/his membership card, a list of members, an affidavit by the General-Secretary of the union stating the veracity of the list of members and the posting of the list on the employer’s website, the Committee considered that all these requirements combined to violate the principles of freedom of association and emphasizes that, for the deduction of trade union dues from wages, the enterprise should confi ne itself to requesting evidence of members’ affiliation and disaffiliation. Furthermore, the annual publication of the list of trade union members on the employer’s website is particularly unacceptable as it has nothing to do with the deduction of trade union dues and violates the privacy of union members.(See 337th Report, Case No. 2293, para. 1135.) 479. In a case in which the authorities had not transferred to the trade union concerned the dues that had been deducted from the wages of public officials, the Committee considered that trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay.(See 334th Report, Case No. 2224, para. 143.) 480. When legislation admits trade union security clauses, such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements.(See the 1996 Digest, para. 325.) 481. The deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and all trade unions without legislative obstruction.(See the 1996 Digest, para. 326; 300th Report, Case No. 1744, para. 99; and 323rd Report, Case No. 2043, para. 502.) 482. A considerable delay in the administration of justice with regard to the remittance of trade union dues withheld by an enterprise is tantamount in practice to a denial of justice.(See the 1996 Digest, para. 328; and 323rd Report, Case No. 2043, para. 504.) 483. A legal restriction on the amount which a federation may receive from the unions affi liated to it would appear to be contrary to the generally accepted principle that workers’ organizations shall have the right to organize their administration and activities and those of the federations which they form.(See the 1996 Digest, para. 437.) 484. Particularly in transition countries, special measures, including tax deductions for trade union dues and membership dues of employers’ organizations, should be considered in order to ease the development of employers’ and workers’ organizations.(See 338th Report, Case No. 2350, para. 1084.) C. Control and restrictions on the use of trade union funds (See also para. 702)485. Provisions which give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association. (See the 1996 Digest, para. 438; and 311th Report, Case No. 1942, para. 264.) 486. The freezing of union bank accounts may constitute serious interference by the authorities in trade union activities.(See the 1996 Digest, para. 439; 308th Report, Case No. 1888, para. 341; 323rd Report, Case No. 2075, para. 522; 324th Report, Case No. 2090, para. 207; and 333rd Report, Case No. 2246, para. 937.) 487. While the legislation in many countries requires that trade union accounts be audited, either by an auditor appointed by the trade union or, less frequently, appointed by the registrar of trade unions, it is generally accepted that such an auditor shall possess the required professional qualifications and be an independent person. A provision which reserves to the government the right to audit trade union funds is therefore not consistent with the generally accepted principle that trade unions should have the right to organize their administration and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.(See the 1996 Digest, para. 440.) 488. Legislation obliging a trade union to have its books of account stamped and the pages numbered by the ministry of labour before they are opened for use appears only to be aimed at preventing fraud. The Committee has taken the view that such a requirement does not constitute a breach of trade union rights.(See the 1996 Digest, para. 441.) 489. The Committee has observed that, in general, trade union organizations appear to agree that legislative provisions requiring, for instance, financial statements to be presented annually to the authorities in the prescribed form and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. Measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. However, it would seem that measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organizations or impede the lawful exercise thereof, contrary to Article 3 of Convention No. 87. It may be considered, however, to some extent, that a guarantee exists against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where that official is subject to the control of the judicial authorities.(See the 1996 Digest, para. 442; 323rd Report, Case No. 2081, para. 573; and 334th Report, Case No. 2259, para. 564.) 490. The control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions.(See the 1996 Digest, para. 443; 308th Report, Case No. 1911, para. 254; 323rd Report, Case No. 2081, para. 569; 327th Report, Case No. 1581, para. 110; 330th Report, Case No. 2229, para. 944; and 331st Report, Case No. 2081, para. 110.) 491. As regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union’s exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential.(See the 1996 Digest, para. 444; 308th Report, Case No. 1911, para. 254; 323rd Report, Case No. 2081, para. 569; 330th Report, Case No. 2229, para. 944; 331st Report, Case No. 2081, para. 110; and 338th Report, Case No. 2387, para. 865.) 492. The general principle that there should be judicial control of the internal management of an occupational organization in order to ensure an impartial and objective procedure is particularly important in regard to the administration of trade union property and finances.(See the 1996 Digest, para. 445.) 493. Where the bank accounts of trade union leaders accused of embezzlement of trade union funds are frozen, the Committee has pointed out that if, following investigation, no evidence of misappropriation of trade union funds has been found, it would be unreasonable for the accounts of the trade unionists, whether or not they have remained in the country, to remain frozen.(See the 1996 Digest, para. 446.) 494. It is for the organizations themselves to decide whether they shall receive funding for legitimate activities to promote and defend human rights and trade union rights.(See 332nd Report, Case No. 2258, para. 515.) |
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