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Prof. Marco Biagi
REPORT ON SIX NATIONAL CASE STUDIES
IN THE FIELD OF FREEDOM OF ASSOCIATION
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64.- Constitutional guarantee in the field of freedom of association. France is a member state of the EU and has ratified Conventions 87 and 98 of the ILO regarding the "freedom of association and protection, and protection of the right to organise, and the application of the principles of the right to organise and to bargain collectively". The preamble of the Constitution of the 5th Republic of 1958 refers expressly to the preamble of the Constitution of 27 October 1946 which states that any person can defend his rights and interests by taking part in the activities of a union and by joining a union of his choice. From that text are deduced the constitutional guarantees to join a union and to permit union activity for everybody, except for specific prohibitions, as well as the freedom not to join and the pluralism of unions, with any individual having a choice of the union he wants to join, if any. The consequence of the latter point is that different unions can and do represent the same category of workers concurrently on the same shop floor.
65.- Prohibition of discrimination on union grounds. An act of 27 April 1956, now section L 412-2 of the Labour Code, extends and defines more clearly the constitutional principle, by explicitly prohibiting employer discrimination for reasons related to union membership and activities. Employers’ interference with union activities is forbidden in the same way. Both activities are subject to civil and penal sanctions. Yellow-dog contracts are automatically void. Section L 122-45 of the Labour Code, introduced in 1982, automatically voids any measure taken by the employer which is inspired by discrimination related to union activities.
66.- Trade union freedom and extension of collective agreements. The act of 11 March 1950, regarding collective agreements, states that collective agreements susceptible to extension by decree of the Minister of Labour must contain provisions regarding the free exercise of union activities. Therefore, from the international down to the collective bargaining level, the freedom to belong to a union and to carry on union activities is guaranteed by successive legal provisions.
67.- Dual union affiliation. A final consequence should be mentioned in connection with the right of the individual to join a union: not only does this allow for a plurality of unions inside the labour movement, but theoretically one individual could belong to several unions. The by-laws of the most important union federations sometimes forbid it but dual affiliation is nonetheless conceivable, on the one hand to a locally non-representative union and on the other to a union belonging to a representative Federation, or a union considered as locally representative.
68.- Negative trade union freedom. All these rights - not to join a union, to be free to withdraw from a union, not to be coerced into quitting a union for another one - are consequences of the constitutional principle mentioned above and are guaranteed by law. Union security clauses are expressly forbidden since the Act of 27 April 1956. Closed shops and union shops are illegal, as well as more "sophisticated" agreements such as preferential hiring, maintenance of membership, agency shop, etc. This prohibition is also extended to the check-off.
69.- Unlawfulness of benefits granted by collective agreement to union members only. Sections L 412-2 and L 122-45 of the Labour Code not only expressly forbid the employer from taking into account union membership for hiring, firing, social guarantees, promotion and disciplinary matters. It also expressly and automatically considers as void provisions of collective agreements providing benefits reserved for union members, those being legal in some other European countries. Penal sanctions, it should be noted, are only aimed at the employer. This complete prohibition of union security clauses is of course a de jure one. In some industrial sectors such as the docks industry or the printing industry, the weight of history and tradition leads to situations amounting to a de facto closed shop, but such situations are clearly and markedly an exception to the general rule.
70.- Banning all forms of interference in union affairs. Company unions as well as interference with union affairs are explicitly illegal. Finally, the freedom to withdraw is doubly protected. Withdrawal from a union cannot be imposed upon the individual, except for specific proven reasons such as non-payment of dues; and conversely every individual has an absolute right to withdrawal whenever he sees fit under the legal obligation of paying the union dues for the six months following withdrawal.
71.- Origins of ‘representative unions’. In order to deal with the problems raised by plural unionism, the notion of ‘representative union’ appeared, first with the Treaty of Versailles in 1929 when the question of union participation was raised. It was introduced into French Labour Law in 1936. Thus, some unions are said to be "representative" or "most representative" by legal texts. Numerous privileges, tasks, and advantages are attached to that designation depending upon the level at which the union is "representative" or "most representative".
72.- Privileges of ‘representative unions’. At the international level, only nationally representative organizations can send delegates to the ILO and the consultative commissions of the EU managing the Euopean Social Fund. Nationally, only representative unions have the privilege of taking part in numerous official bodies to which they appoint members. This includes the Economic and Social Council, the Commissions of the Office of the National Plan, the National Committee of Prices, the Consultative Commission on Human Rights , the Superior Council of the Civil Service, the National Commission of Collective Negotiations, the Superior Committee on Employment, and others.
73.- Representative unions and extension of collective agreements. Only representative unions can sign or request the extension of collective agreements, whether multi-occupational, national for a single occupation, regional or local, and, since 1982, they can in certain cases oppose them.
74. Additional prerogatives of representative unions. At the level of the region and the department, only representative unions may have representatives on regional economic and social councils. Only they can take part in consultative commissions on departmental labour directives, etc. At the level of the enterprise or the establishment, only representative unions may present a list of candidates for the workers’ council or for workers’ representatives on the first ballot. Only they can sign an agreement to participate in profit-sharing at enterprise level. They have a monopoly on sending union delegates to the workers’ council as well as on constituting a union section in a particular enterprise and nominating union delegates. It should be added that in the public service, representative unions enjoy special privileges. Finally, representative unions of civil servants in the civil service or the public sector enjoy the privilege of calling a strike in accordance with the legal procedure of strikes in the public service, where a strike is subject, in the absence of specific acts prohibiting it, to a period of delay between calling it and effectively stopping work.
75.- Effects connected with the status of representative union. Therefore the designation of representative or most representative union has far-reaching effects for a union. These effects differ according to the level at which representativeness is established (multi-occupational or union federation, national or regional, local, plant). Therefore the legal rule is that representativeness is assessed at the level at which it is to have its effect. In other words, if the question is that of sending a delegate to the ILO, representativeness is to be evaluated at the national inter-occupational level; if the problem is a plant agreement, representativeness is assessed at plant level. The same principle applies to unions’ organizing specific categories of employees, such as "cadres" for instance.
76.- The five criteria for union representativeness. Section L 133-2 of the Labour Code lists five criteria of representativeness: the number of members, independence vis-à-vis the employer, the amount of dues, the experience and age of the union, and the patriotic attitude of the union to the German occupation of French territory during the Second World War. The latter criterion has since been dropped and the courts have come to rely on a mixture of the other four, none being absolutely predominant but all being influential, as well as developing new autonomous criteria such as the "audience" and the "actual activity" of the union.
77.- Mechanisms for ascertaining union representativeness. Within these rules and since the Act of 28 October 1982, two systems co-exist for granting representativeness to unions. The first system is the system of representativeness by full rights. This system existed previously but its domain was clarified and extended by the act of 1982. A ministerial decision of 31 March 1966 had appointed the following union federations: CGT, CGT-FO, CFDT, CFDT and CGC (the latter for cadres only) as representative with full rights at national level. However, this applied only to the ministerial administrative domain, just as an employer is unqualified to grant representativeness to a union at other levels. Nevertheless in the area of collective bargaining, court decisions had deduced the representativeness of unions at lower level from their affiliation with one of the most representative federations at national level. This did not always apply in other domains though. The matter has been clarified since the Act of 1982 which provides that all unions, or groups of unions affiliated with one of the representative unions (listed in the decision of 1966), are presumed to be representative at this level if there is no evidence to the contrary.
78.- The burden of demonstrating union representativeness. For unions not affiliated to a national representative union federation, the former system remains. They must prove their representativeness. However, problems arise because there is no official procedure leading to recognition of the "representative" nature of a union. In practice, when participation in consultative or managerial functions in state-controlled organs is involved, the administrative authority rules on the issue under the control of the administrative courts. At the enterprise or establishment level in the private sector neither the Labour Inspector nor the employer has the authority to grant recognition of the representative nature of a union or to withold it, but in the absence of any formal procedure their decisions can be the basis for court actions before the competent civil court. There is, therefore, a body of court decisions, by which representatives can be gauged, which applies the criteria listed above.
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79.- Common law and union discrimination. Under common law, there is no prohibition against membership in trade unions. However, there is likewise no common-law protection against discrimination by employers on the basis of trade union membership. It was not until the Industrial Relations Act 1971 that a statutory right to belong to a trade union of one’s choice was first introduced. After the repeal of that Act there was no comprehensive legal guarantee of the right to organise. Instead three individual legal rights were introduced to protect trade union membership and activity at the workplace. These individual rights were consolidated in EPCA 1978, and are now found in TULRCA 1992.
80.- The statutory protection of union rights. The first of these rights is that officials and members of independent trade unions have the right to time off from work to participate in union activities. The second is that every employee has the right not to be unfairly dismissed by reason of membership, or activities, at an appropriate time, in an independent trade union. The third is that every employee has the right "as an individual" not to be penalised for, or deterred or prevented from joining an independent trade union or taking part in its activities at an appropriate time, by sanctions imposed by the employer, even if the sanctions fall short of dismissal. There is no upper age limit or qualifying period of service for claiming these rights. A fourth right was introduced by the Employment Act 1990, which makes it unlawful to refuse employment to a person because he or she is a member of a trade union.
81.- The issue of protecting union activists. Although the 1990 Act was primarily aimed at preventing compulsory trade union membership, the need for formal equality led to the introduction of parallel protection for union members. However, the impact of this right is likely to be limited. Most discrimination at the point of employment occurs against union activists; and the legislation was deliberately phrased so as to exclude protection for those who are refused employment on the grounds of union activities rather than merely union membership.
82.- Enforcement of union rights. A number of points may be made about these rights. The first is that they belong to individuals. Although they protect a collective freedom, they cannot be enforced by the trade union, but only by the employee against his or her employer. Although the union may be expected to support the individual in any action he or she takes, it may be a weakness of this approach that the individual is more likely than a trade union to be deterred from bringing an action against the employer, especially during the subsistence of the employment relationship. A second point is that these rights do not extend to those who are not employees, for example, "self-employed" construction workers.
83.- Protection against unfair dismissals for union activities. A further limitation was introduced in 1977 by the Employment Appeal Tribunal, which held that an employee was not protected against dismissal for trade union activities in a previous job. This left the way open to employers to blacklist trade union activists. However, in an important recent decision, the Court of Appeal has held that protection extends to dismissal on the basis of the employee’s previous union activities, since the real reason for the dismissal must be the likelihood of activism in the present job. However, if the real reason for the dismissal was that the employee deceitfully failed to reveal relevant factors, then the section does not apply.
84.- Banning ‘company’ unions. A third point is that the right to belong is not unlimited. It is a right to belong to an independent trade union and so properly excludes employer-dominated ‘company unions’. Nevertheless, the employee may belong to any union and not necessarily the union which the employer recognises for collective bargaining purposes.
85.- Positive and negative trade union freedom. The right not to belong to a trade union has frequently been treated differently from the right to belong. The question is of particular relevance where membership in a trade union is a precondition for obtaining or retaining employment (the ‘closed shop’). It has been argued that whereas freedom of association is essential to the protection of workers in a pluralist society, the right not to belong is of a different character and may lead to disruption of orderly industrial relations. The Donovan Commission, for example, argued that ‘the two are not truly comparable’. The former condition (the right not to belong) is designed to frustrate the development of collective bargaining, which it is public policy to promote, whereas no such objection applies to the latter.
86.- Closed shop practice and violation of freedom of association. A persistent argument against the closed shop centres around the alleged threat to individual freedom. The debate about whether the right to freedom of association is infringed by the closed shop depends to some extent on whether freedom of association is seen as an aspect of individual autonomy, or a social right, to which exclusively individual interests are to some extent subordinate. One question which arises is whether the closed shop infringes article 11 of the European Convention on Human Rights and Fundamental Freedom, which states that freedom of association should not be subject to any restrictions except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. In the discussions leading up to the formulation of article 11, it was explicitly agreed that it would be undesiderable to include a right not to be compelled to join a union parallel to the right to join a union.
87.- The right non to join a union. The Industrial Relations Act of 1971 reflected an individualist philosophy by conferring a general right not to associate, in parallel with the new right to associate. This clashed with the collectivist aims of trade unions, most of whom had in any case refused to register as required by the Act. Competition for members developed between unregistered TUC unions and new or splinter unions who utilised the new rights as a platform to organise. As a result, stable bargaining arrangements were threatened with disruption. After the repeal of the 1971 Act, the right not to belong to a union was recognised in only two specific instances, by legislation enacted between 1974 and 1976. First, there was a right not to be compelled to be a member of a non-independent (employer-dominated) trade union. Secondly, where a closed shop existed, an employee who genuinely objected on grounds of religious belief to being a member of any trade union whatsoever was protected from dismissal due to non-membership.
88.- Positive and negative trade union freedom. The Conservative Government elected in 1979 took the view that the right to belong to a trade union was equivalent to the right not to belong. This was reinforced by the view that the closed shop was an unwarranted restriction on individual freedom of choice, and an unnecessary fortification of trade union power, distorting the free market. The statutory protections of the right to belong have therefore been expanded to include similar protections for the right not to belong. Thus the right not to be unfairly dismissed for membership in a trade union has been extended, so that it is automatically unfair to dismiss an employee where the principal reason for dismissal is his or her non-membership in or refusal to belong to a particular trade union.
89.- The union role in unfair dismissals cases. A further significant innovation of the Employment Acts of 1980 and 1982 was the introduction of a right to include the trade union as a third party or co-defendant in proceedings against the employer for unfair dismissal or actions falling just short of dismissal. Both the employer and the employee have the right to join in the proceedings if it is claimed that the union took industrial action or threatened to do so in order to put pressure on the employer to dismiss the employee or take other severe measures in that sense. The tribunal may then make an award against the union only, or against both the employer and the union.
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90.-The notion of freedom of association. The expression "freedom of association", as used here, refers to the right of employees and employers to organize for the defence of their occupational interests. The expression has to be understood in its broadest sense. It not only has to do with the right to set up associations but also with a whole range of rights without which the right to organize would lose much of its meaning. Such additional rights not only refer to the right of the association to decide on its organizational structure and administration, but also the right to decide freely on its activities.
91.- The practical impact of freedom of association. Neither the state nor anybody else may prevent workers or employers from setting up an association to safeguard and improve working or economic conditions, or being members of such an association. The practical impact of this guarantee of individual freedom of association should mainly be seen in the relationship between workers and employers. The worker is protected against any kind of discrimination resulting from the use of his freedom of association. Thus it is evident that so-called ‘yellow dog’ contracts, under the terms of which a worker promises not to become or not to remain a union member, are void.
92.- Protection of individuals against discrimination. The member of an association is not only protected against discrimination but is also entitled to all activities guaranteed to the association as such by the constitutional guarantee of freedom of association. And here again these activities are protected from discrimination.
93.- Positive and negative freedom of association. The freedom to set up an association, to join an association, to remain in an association, and to be active in an association in Germany is called ‘positive’ freedom of association. Whereas it is perfectly clear that article 9, section 3 of the Constitution focuses on this freedom, it is highly contested whether and to what degree the freedom not to join an association or to leave an association is protected by this very article. In spite of the fact that this ‘negative’ freedom of association has never been threatened, in the past the Federal Labour Court has included it into the scope of article 9.
94.- The issue of benefits limited to union members only. "Negative" freedom is simply regarded as the mirror of "positive" freedom. The actual debate is not so much on the legitimacy of protection of "negative" freedom of association as such (here the discussion mainly focuses on the question whether article 9, section 3 of the Constitution, or article 2 which guarantees the freedom of one’s personality, should be the legal basis) but on the borderlines between the so-called ‘positive’ and ‘negative’ freedom of association. While it is uncontested that closed shop or union shop arrangements are a violation of the "negative" freedom of association, the question arises as to how far the union is allowed to provide privileges for its members in order to make the association attractive and thereby stimulate membership.
95.- Prevalence of negative trade union freedom. To quote one example: by using the instrument of collective agreement, unions tried to establish clauses which would lead to the effect that some additional payments would be made to union members and not to non-union members. This conflict between the ‘positive’ freedom, backing the union in increasing its attractivity, and the ‘negative’ freedom backing the non-union member in his or her wish not to be tempted to join a union by its increased attractivity, was solved in favour of the ‘negative’ freedom. In other words, the clauses granting privileges to union members in comparison to non-union members were held to be void. This decision of the Federal Labour Court of 1967 provoked a critical discussion. Many observers understood the court’s attitude to be an over-estimation of the so-called ‘negative’ freedom of association. The court, however, has not repealed its veiw, but confirmed it in several recent decisions.
96.- Individual and collective freedom of association. Whereas the individual freedom of association focuses on the rights of individual workers and employers, the collective freedom of association is concerned with the rights of unions and employers’ associations. It is generally agreed that individual freedom of association would be useless if the association were not subject to constitutional guarantee. That is why article 9, section 3 of the Constitution is understood to be a protection of the association’s existence as well as of its activities. This of course leads to difficult questions. When is the association’s existence endangered? Does this have to be evaluated according to a short-, medium- or long-term perspective? And what are the activities protected by this constitutional guarantee? The answers to these questions are still the subject of many controversies, as will be shown when describing specific aspects of the law on collective agreements, the law on industrial conflict and the law on institutionalized workers’ participation.
97.- Jurisprudential limitations in the exercise of trade union freedom. Even if an activity is agreed to be covered by article 9, the question is still open as to how far it is protected in view of the fact that it conflicts with the rights of others. To quote an example: there is no doubt that the union is guaranteed a right to advertise and to make its activities known not only outside but also inside the enterprise. First of all publicity activities are only allowed during breaks. Furthermore, this guarantee is limited by the requirement of ‘not disturbing the peace within the establishment’ and of ‘not insulting anybody’. It is perfectly clear that these criteria, developed by the Federal Labour Court, are very vague. Thus everything depends on the interpretation in specific cases.
98.- Selection of individuals entitled to exercise union activities. Leaving this limitation aside, the question is, who is entitled to make publicity? Only members who belong to the enterprise? Or may members not belonging to the enterprise enter the establishment for purposes of union awareness-raising activity? It is necessary to find a balance between the union’s rights to publicity, backed by article 9, section 3 of the Constitution, and the employers’ property rights, also backed by the Constitution. Whereas the Federal Labour Court has tended to give priority to the unions’ rights to enter the enterprise, the Federal Constitutional Court has given priority to the employer’s rights, at least in those cases where the union was not without membership in the establishment. In those cases unions could have used members belonging to the enterprise, and the entry of external members into the enterprise was not accepted as being necessary for the existence of the union.
99.- How to publicize the union within the enterprise. The next question to be decided upon is what are the legitimate ways of advertising within the enterprise? Two examples of cases decided by the Federal Labour Court may illustrate the problem. In the first case union members wore a union badge on their working clothes, belonging to the employer. The badges could easily be removed without damaging the clothes. Again a balance had to be struck between the union’s right to make publicity and the employer’s right to private property of the clothes. Priority in this case was given to the employer’s right for the reason that this way of raising awareness was not necessary for the union, other ways were open. In the second case the union advertised by means of posters. These posters not only drew attention to the union’s activities concerning working conditions, but also to services traditionally offered by unions, but outside this area (insurance for all kinds of risks having nothing to do with working life, legal aid for law suits outside the labour legislation area etc.). Here the Federal Labour Court decided that this kind of advertising is covered by the constitutional guarantee based on article 9, section 3. This more recent decision shows a tendency to broaden the scope of the guarantee of propaganda activities.
100.- Borderlines of the union’s right to publicity. In quoting these examples it should be stressed that the purpose here is not to describe in detail the borderlines of the union’s right to carry out awareness-raising activities, but to show the uncertainties of these borderlines with their many dimensions. It is also intended to show that these borderlines are not static but subject to gradual change depending on change in the courts’ attitudes. Finally, it is pointed out that the right to publicize the union is only taken as an example, the same being true for all other activities backed by the constitutional guarantee.
101.- Associations entitled to join constitutional guarantees. Only those associations which seek to safeguard and improve working conditions enjoy the constitutional guarantee. From what has been said so far it is evident that free membership must be the organizational basis of these associations. In addition to these self-evident implications of article 9, section 3 of the Constitution, the Federal Labour Court has developed a whole range of prerequisites to be fulfilled by associations if they want to carry out certain activities as guaranteed by the Constitution. Thus only associations fulfilling certain criteria are allowed to participate in collective bargaining and to conclude collective agreements.
102.- Selection of bargaining agents. According to section 2 of the Act on Collective Agreements, trade unions on the workers’ side and (in addition to individual employers) employers’ associations on the employers’ side may conclude collective agreements. There is no statutory definition of trade union or employers’ association. Thus the question arises whether any group of employees or employers may be entitled to be a party of a collective agreement or whether such associations must fulfil certain prerequisites in order to be allowed to conclude a collective agreement. If any association whatsoever were allowed to participate in collective bargaining, the danger that the system could lose its function would be a permanent threat. This is exactly the view of the Constitutional Court which puts it the following way: "....it cannot be the purpose of article 9, section 3 of the Constitution that every association of employees or employers should be admitted to participate in collective bargaining. The starting point of any further consideration should be that it is the purpose of the system of collective bargaining to produce a reasonable structure of working conditions... This purpose requires that the ability to participate in collective bargaining must be based on certain prerequisites."
103.- Criteria for identifying associations qualified for bargaining. In addition to the self-evident implications of the guarantee of collective freedom of association, the Federal Labour Court has established a whole range of criteria to be observed by associations being parties of collective agreement. First, the association has to be created for an indefinite time. An ad hoc association is not sufficient for the simple reason that there should be a guarantee that the association will continue to exist, at least during the period of the collective agreement, otherwise there would be no party liable for the execution of the agreement. The same reason has led to the establishment of the second criterion, the requirement of a corporate structure. This means that the association must be organized in a way which guarantees its continuity even if members leave the association.
104.- Independence of associations as a requisite for bargaining. Thirdly, an association is only accepted as a participant in collective bargaining if it is independent from the opposite side. This criterion is mainly a reaction to experiences from the Weimar period. The so-called ‘yellow unions’ turned out to be mere instruments of the employers to undermine the labour movement. The fourth condition is closely connected with the third one: members of the associations may only belong to one side, whether it is the employees’ or the employers’ side. This requirement of clear-cut division leads to the question, for example, of the degree to which associations of executive staff may be understood to be employees’ unions in view of the fact that many of their members have management functions. The Federal Labour Court’s contention is that the requirement is fulfilled as long as top executive staff are not dominating the association.
105.- The requirement of multi-establishment association. The fifth criterion is again based on the same idea as the third and the fourth: an employees’ association may not be confined to one establishment but must exceed this scope. This attempt to exclude so-called company unions again has its roots in Weimar where company unions turned out to be identical with "yellow unions". A basis of solidarity which extends beyond the scope of an establishment and relies on the coherence of external links is considered to be the best guarantee for independence.
106.- Independence from the State and political parties. According to the sixth criterion, associations must be independent from the state and from political parties. Neither the state Government nor a political party is allowed to influence the policy of an association. This requirement does not exclude that the political orientation of an association and a political party may be identical. This would be up to the autonomous decision of the association. Independence from state and politial parties therefore means nothing else but a guarantee of this autonomy. The seventh criterion focuses on the inner structure of the association. Since associations act on behalf of their members, there should be a guarantee that members are able to influence the association’s activities. This is why the requirement of democratic organization was established.
107.- The willingness to use industrial action. Whereas the criteria outlined above are more or less uncontested, there are two more prerequisites which are subject to controversies: willingness to use industrial action, and the power to put pressure on the opposing body. The former, i.e. the willingness to use industrial action, is only valid in principle. Meanwhile more and more exceptions are granted. If, for example, an association of employed medical doctors, for ethical reasons, declares that it refuses to use industrial action, then this is taken as justification for turning a blind eye to the requirement. In the meantime the Federal Labour Court has indicated that it may depend on the occupation, or on the hierarchical position, of the employees organized in an association, whether the willingness to use industrial action is a condition or not. Other means may be just as effective to put pressure on the other side (e.g. the use of the media to draw public attention, etc.). In short, the willingness to use industrial action as a condition for being a party in a collective agreement depends on the circumstances.
108.- The power to put pressure on the other side. The real issue, and subject of a heated debate, is the last criterion, the power to put pressure on the other side. The underlying idea of this requirement is the consideration that the proper functioning of the autonomous system of collective bargaining would be undermined if powerless associations were able to participate in collective bargaining. On the other hand it creates a barrier for new associations since collective bargaining is the most important function they have to attract members and thereby grow and survive. They do not have this possibility as long as they are small and powerless. Thus this criterion favours and confirms the existing large unions and is the reason why the DGB unions in particular support this requirement. Among those put at a disadvantage by this criterion are, for example, the Christian unions which are not considered to be powerful enough. In the last few years, the Courts had mainly been called on to examine whether associations of executive staff met the requirements. In the course of the handling of these cases, and due to the intervention of the Constitutional Court, the standards for the criterion were lowered. Facing the danger that the obstacles for new associations, and for associations of minority groups, could be too high, the Federal Labour Court has become much more generous towards this requirement.
109.- The role of the courts in shaping the structure of collective bargaining. Requiring that an association be sufficiently strong to put pressure on its opponents implies a further danger. Since the criteria for fulfilling this requirement are not at all clear, and depend on many factors (such as number of members, finances, occupation and hierarchical position of the members, etc.), it is more or less up to the arbitrariness of the courts to shape the structure of collective bargaining. It is very doubtful whether this is compatible with the autonomy of collective bargaining as guaranteed by article 9, section 3 of the Constitution. It should be pointed out that this requirement only applies to employees’ trade unions, not to employers’ associations. Since the individual employer as an isolated entity is considered by law to be a strong enough partner for collective bargaining, this by necessity must be the case for an association of employers.
110.- The present study does not claim to be an original contribution in the field of freedom of association as implemented in the context of labour-management relations. The above-described six national case studies have been prepared for educational/training purposes, largely relying on contributions from the International Encyclopaedia of Laws, Section of Labour Law, edited by Roger Blanpain and published by Kluwer Law International. More precisely this report has been drafted taking into account the national monographs of Tiziano Treu (Italy), Manfred Weiss (Germany), Bob Hepple and Sandra Fredman (UK), Tadashi Hanami (Japan), Alwin L. Goldman (United States), Michel Despax and Jacques Rojot (France).