Part I. Freedom of association and protection of the right to organize

Chapter IV. Right of workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and organize their administration and activities

Introduction

108. Article 3 of Convention No. 87 guarantees the free functioning of workers' and employers' organizations by recognizing four basic rights: to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without interference by the public authorities. Article 8 of the Convention provides that in exercising these rights, organizations shall respect the law of the land, but stipulates that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. During the preparatory work on the Convention, several Government members, although they accepted complete trade union autonomy, pointed out that the State could not refrain from all intervention since it must at least ensure that trade unions carried on their activities within the limits of the law. In an attempt to achieve this twofold objective, the International Labour Conference finally decided to word the second paragraph of Article 3 as follows: "the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof". (Endnote 1)

Constitutions and rules

109. In order for this right to be fully guaranteed, the Committee believes that two basic conditions must be met: firstly, national legislation should only lay down formal requirements as regards trade union constitutions; secondly, the constitutions and rules should not be subject to prior approval at the discretion of the public authorities.

110. Thus, legislation which does not contain any provisions respecting the content or approval of the constitutions and rules of organizations is compatible with Convention No. 87. (Endnote 2) The same applies to legislation which, in order to protect members' rights by ensuring a sound administration and preventing legal complications arising as a result of constitutions and rules being drawn up in insufficient detail, lists particular points of a formal kind which must appear in the constitutions. (Endnote 3) Model constitutions and rules intended to serve as guidelines to trade unions may also be included in this category, provided that there is no legal obligation to accept them or any pressure exerted for this purpose.

111. However, the Committee considers that any legislative provisions concerning the preparation, content, (Endnote 4) amendment, (Endnote 5) acceptance or approval of constitutions and rules of occupational organizations which go beyond these formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention. Such interference may take different forms: for example a first-level trade union may be required to conform to the constitution of a single federation; (Endnote 6) the constitution of a new trade union may be subject to approval by the central administration of the existing organization; the sole central organization or higher-level organizations specified by the law may have the exclusive right to elaborate the by-laws of first-level trade unions; (Endnote 7) the constitutions may have to be drawn up by the public authorities; (Endnote 8) trade unions may be required to follow a model constitution which contains more than certain purely formal clauses or to use such a model as a basis. (Endnote 9) This is also the case when the approval of constitutions and rules of occupational organizations is subject to the discretionary power of the public authorities, (Endnote 10) and when the latter have the right to require amendments to the constitutions.

Election of representatives

112. The autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, conditions of eligibility or the re-election or removal of representatives.

Election procedures

113. In the majority of countries the law recognizes, implicitly or explicitly, the principle of election of trade union officers by members. The provisions of national legislation respecting election procedures can be divided into two categories.

114. The legislation in the first category does not contain any specific provisions on this subject or provides only that the constitutions of trade union organizations must indicate the procedure for appointing their executive bodies, as well as provisions to promote democratic principles within trade unions or to ensure the proper conduct of the election process, with respect for members' rights, so as to avoid any dispute on their outcome. The Committee considers that provisions of this kind do not involve any violation of the principles of freedom of association as long as they are not so detailed as to allow undue control by the authorities.

115. The second category contains provisions which go beyond these objectives and may enable the authorities to interfere in the right of organizations to elect their representatives in full freedom. For example, the Committee considers that the following provisions are contrary to the principles of freedom of association: those which establish very precise rules on the subject of trade union elections, thus constituting a kind of a priori control over the electoral procedure and enabling the public authorities to interfere in the voting process; (Endnote 11) provisions which allow supervision by the administrative authorities or the single trade union central organization of the election procedure, for example by requiring the presence of labour inspectors or of representatives of the administration or the acceptance or approval of elections or their results. (Endnote 12) The criterion applied by the Committee is therefore the risk of arbitrary interference by the authorities in the election process of workers' and employers' organizations. If, however, supervision is deemed necessary, it should be exercised by a judicial authority.

Conditions of eligibility

116. The conditions of eligibility most frequently encountered in national legislation concern occupational requirements, nationality, political views or activities or penal records; some provisions also establish restrictions or prohibitions concerning the re-election of trade union officers.

(i) Requirement to belong to an occupation or to an enterprise

117. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation, enterprise or production unit (Endnote 13) or to be actually employed in this occupation, either at the time of their candidature (Endnote 14) or during a certain period before their election (Endnote 15) are contrary to the guarantees set forth in Convention No. 87. Restrictions may also arise out of provisions requiring members of trade unions to belong to the occupation concerned, coupled with a requirement that the officers of the organization be chosen from among its members. (Endnote 16) Provisions of this type infringe the organization's right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization. (Endnote 17)

(ii) Nationality

118. In many cases being a national of the country concerned is a condition of eligibility for trade union office. (Endnote 18) Sometimes this requirement applies only to a certain proportion of the officers of a trade union or is flexible, for example where there is reciprocity between countries (Endnote 19) or where the authorities may grant exemptions. Since provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom, for example migrant workers in sectors in which they account for a significant share of the workforce, the Committee considers that legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country. Other ILO instruments can provide guidelines in this respect: thus, Article 10 of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), stipulates that migrant workers should be granted equality of opportunity and treatment, in particular as regards trade union rights, and Paragraph 2(g) of the Migrant Workers Recommendation, 1975 (No. 151), mentions that the policy of equality of opportunity and treatment should, inter alia, concern eligibility for office in trade unions.

(iii) Political views or activities

119. Legislation which prohibits the exercise of trade union functions solely on the grounds of political belief or affiliation is not compatible with the right of organizations to elect their representatives in full freedom. Provisions concerning ineligibility for trade union office on political grounds are sometimes directed against activities of an allegedly subversive nature, activities in a specific political party (Endnote 20) or movement, (Endnote 21) or the defence of ideological principles of a prohibited party or association whose activities are deemed contrary to the national interest and whose registration has been cancelled or suspended. (Endnote 22) The Committee is of the view that the practice of giving a broad interpretation to legislation which imposes restrictions on persons with a criminal record so as to deprive certain persons of the right to be elected to trade union office solely on the grounds of their political beliefs or affiliation is not compatible with the Convention.

(iv) Criminal record

120. Some legal systems contain provisions disqualifying from trade union office all persons who have been convicted, regardless of the gravity or nature of the offence, (Endnote 23) or those convicted of certain specific offences. (Endnote 24) In other cases, certain types of conviction can result in the loss of civil and political rights which a candidate must possess in order to be eligible for trade union office. (Endnote 25) The Committee considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, legislation which establishes excessively broad ineligibility criteria, for example by means of an open-ended definition or a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention.

(v) Conditions of re-election

121. Provisions restricting or prohibiting the re-election of trade union officers are a serious obstacle to the right of organizations to elect their representatives in full freedom, (Endnote 26) irrespective of the scope and form of the provision: absolute prohibition, or prohibition of re-election where previous terms or a certain number of consecutive terms have been served. (Endnote 27) In the view of the Committee, any provision, irrespective of its form, which restricts or prohibits re-election to trade union office is incompatible with the Convention. Such provisions may entail particularly serious consequences for organizations which do not have a sufficient number of persons capable of carrying out the duties of a trade union officer. The same principle is applicable to provisions fixing the maximum length of terms of trade union office.

Removal of trade union officers or executive bodies

122. Any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers or the appointment of temporary administrators by the administrative authorities, (Endnote 28) by the executive board of a single central organization (Endnote 29) or under the provisions of legislation or a decree promulgated for the purpose are incompatible with the Convention.

123. Measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions which are too vague or fail to comply with the principles of the Convention do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures.

Administration of organizations

124. The right of workers' and employers' organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations. Legislation intended to protect the rights of members and to ensure sound and efficient management which require trade union rules to include provisions concerning the source of the organization's funds, the use of its funds, its internal financial administration or the distribution of assets in the event that the organization is dissolved, wound up or merged, or legislation which provides for the external supervision of the financial reports of trade unions are in general compatible with the Convention.

125. The Committee considers that there is no infringement of the right of organizations to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. (Endnote 30) Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity.

126. Problems of compatibility with the Convention arise when the law gives the authorities powers of control which go beyond the principles set forth in the previous paragraph. (Endnote 31) This may take the form of permanent control by the authorities where the law establishes the minimum contribution of members, (Endnote 32) specifies the proportion of union funds that have to be paid to the federations (Endnote 33) or requires that certain financial operations, such as the receipt of funds from abroad, be approved by the public authorities. (Endnote 34) The same applies if the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time, (Endnote 35) or is the only body authorized to exercise control, or if such control is exercised by the single central organization expressly designated by the law. (Endnote 36)

Inviolability of union premises, correspondence and communications

127. The freedom to organize their administration is not limited to strictly financial operations but also implies that trade unions should be able to dispose of all their fixed and movable assets unhindered and that they should enjoy inviolability of their premises, correspondence and communications. When legislation makes provision for exceptions in this respect, for example in emergency situations or in the interests of public order, the Committee is of the view that while trade unions cannot claim immunity against the searching of their premises, such searches should be possible only when a warrant has been issued for the purpose by the regular judicial authority, when the latter is satisfied that there is a good reason to presume that such a search will produce evidence for criminal proceedings under the ordinary law, and provided the search is restricted to the purpose for which the warrant was issued. (Endnote 37)

Activities and programmes

128. Freedom of association implies that workers' and employers' organizations should have the right to organize their activities in full freedom and formulate their programmes with a view to defending all of the occupational interests of their members, while respecting the law of the land. This includes in particular the right to hold trade union meetings, (Endnote 38) the right of trade union officers to have access to places of work and to communicate with management, certain political activities of organizations, the right to strike and, in general, any activity involved in the defence of members' rights.

129. In practice, however, the main difficulties which are most frequently encountered in national legislation concern restrictions or prohibition of political activities of organizations and of the right to strike, which is dealt with separately in the following chapter in view of its importance, as well as restrictions on collective bargaining. (Endnote 39)

Political activities

130. Until recently, legislation in several countries established a close relationship between trade union organizations and the single political party in power. Although this type of subordination still remains in some countries, (Endnote 40) the Committee has noted with satisfaction in recent years and in particular since the fall of the Berlin Wall in 1989 a clear trend towards its abolition. It also observes that the autonomy and independence of trade unions are now enshrined in the legislation of several countries. (Endnote 41) The legislation of other countries restricts the political activities of trade unions by forbidding them, for example, from making financial contributions to a political party or candidate. Finally, there is a total ban on any political activities by trade unions in certain legislations. (Endnote 42)

131. It was pointed out during the preparatory work on Convention No. 87 (Endnote 43) that trade union activities cannot be restricted solely to occupational matters, since a government's choice of a general policy is usually bound to have an impact on workers (remuneration, leave, working conditions, functioning of the enterprise, social security, etc.). This relationship is obvious in the case of a national economic policy (for example, the impact of budgetary austerity programmes or price and wage restrictions; structural adjustment policies, etc.), although for workers in particular it may also appear in the form of broader political or economic options (for example, bilateral or multilateral free trade agreements; the application of directives of international financial institutions, etc.) or even decisions taken at the supranational level (for example, the effects of the delocalization of enterprises on employment and wages). Although the promotion of working conditions by collective bargaining remains a major feature of trade union action, the Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers' organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government's economic and social policy.

132. As regards the political activities of the trade union movement, the Committee recalls that the 1952 resolution of the International Labour Conference concerning the independence of the trade union movement (Endnote 44) remains as valid as it then was: when trade unions, in accordance with the law and practice of their respective countries and following a decision of their members, decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of the economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country. Furthermore, in order to guarantee the independence of the trade union movement, governments should not attempt to transform trade unions into an instrument for the pursuance of political aims or interfere with the normal functions of a union under the pretext of its freely established relationship with a political party.

133. The Committee is therefore of the view that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. (Endnote 45) Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other.

134. Workers' organizations have several means available to promote and defend the economic and social interests of their members within the framework of collective bargaining. These means, which include meetings, protest demonstrations or the presentation of petitions, are solely intended to express the discontent of trade unions on certain matters. Means of action which place stronger pressure on the employer, essentially through strike action, are dealt with separately in the following chapter because of their importance and the effects they may have on labour relations.

135. 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.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Endnote 32

Endnote 33

Endnote 34

Endnote 35

Endnote 36

Endnote 37

Endnote 38

Endnote 39

Endnote 40

Endnote 41

Endnote 42

Endnote 43

Endnote 44

Endnote 45

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C143 Migrant Workers (Supplementary Provisions) Convention, 1975
Recommendations:R151 Migrant Workers Recommendation, 1975
Case reference:0319912781512 Report=278 Case=1512 * Guatemala
Case reference:0319912791592 Report=279 Case=1592 * Chad
Case reference:0319922841508 Report=284 Case=1508 * Sudan
Case reference:0319922841622 Report=284 Case=1622 * Fiji
Survey reference:251994G02 General Survey 1994, para. 40
Digest reference:1985_04_03