Definitive Report - Report No 25, 1957

Case No 158 (Hungary) - Complaint date: 14-DEC-56 - Closed

A. A. The complainants' allegations

1. 320. The complaint of the International Federation of Christian Trade Unions is embodied in a telegram dated 14 December 1956 in the following terms " International Federation Christian Trade Unions strongly protests against arrests of members of workers' councils by Hungarian authorities. Complains against Hungarian Government for its new flagrant violations of freedom of association and workers' fundamental rights. Requests immediate intervention International Labour Organisation and United Nations with Hungarian Government and urgent examination on the spot by all possible means, even without invitation and approval of Hungarian Government."
2. 321. The International Federation of Christian Trade Unions was informed on 26 December 1956 of its right to furnish further information in substantiation of its complaint within a period of one month. The complaining organisation has not availed itself of this facility. The complaint was communicated to the Government of Hungary on 28 December 1956.
   • ANALYSIS OF THE REPLY
3. 322. The Government of Hungary presented its observations on the complaint of the International Federation of Christian Trade Unions in a communication dated 11 February 1957, in which it declares
4. 1. The International Federation of Christian Trade Unions has protested against the arrest of certain workers' council members by the Hungarian authorities, because, according to its allegation, these arrests constitute a violation of trade union rights. Before dealing with the gist of the matter the Hungarian Government wishes to draw attention to the following:
   • Legislative Decree No. 25 of 1956 respecting workers' councils, issued by the Presidential Council of the Hungarian People's Republic (the English translation of which is enclosed herewith) has defined the sphere of activity of the workers' councils. Accordingly the workers' council decides on the most important questions of the enterprise and controls its entire activity. It follows from this that while the workers' council is an economic and controlling body which is charged with ensuring the direct participation of workers and employees in the management of factories, the trade union, as an independent organisation of the working class for safeguarding their interests, protects the interests of the working people in given instances even against improper actions of the workers' council.
   • From the foregoing it is evident that the functioning of the workers' councils cannot be linked with the exercise of the rights of trade unions, and the investigation into problems concerning the workers' councils can in no way belong to the sphere of authority of the Committee for the Freedom of Trade Unions.
5. 2. As regards the main part of the question the Hungarian Government states the following:
   • The above-mentioned Legislative Decree invests the workers' councils with broad powers, so that in conformity with the principle of workers' management it may enable the workers and employees to participate in the controlling of factories. The workers' councils began their economic activities only a few weeks ago amidst extremely difficult circumstances ; however, following the initial difficulties they are more and more fulfilling their basic task connected with the management of the factories. But it should be pointed out that the workers' councils were formed at a time when counter-revolutionary elements aiming to overthrow the legal State order were still marauding in Hungary and did their best to infiltrate the administrative bodies too. This was how certain elements alien, in fact, distinctly hostile, to the working class, wormed their way into the workers' councils. A number of these engaged in subversive organisation against the legal order, concealed arms and carried on a campaign of sedition against the State order of the Hungarian People's Republic. It should be stressed that the competent Hungarian authorities have begun proceedings against these persons, in conformity with the provisions of Hungarian criminal law.
   • In view of the fact that it is the sovereign right of every State to begin criminal proceedings within the framework of its penal prerogative against persons who have committed subversive acts against the legal State order, it is the firm position of the Hungarian Government that the question of arresting certain workers' council members belongs exclusively within the internal affairs of the Hungarian People's Republic and therefore the investigation into this matter does not belong within the sphere of authority of international organisations.
   • For the above reason the Hungarian Government most firmly rejects the demand-infringing the sovereignty of the Hungarian People's Republic, and contained in the complaint of the International Federation of Christian Trade Unions-that the above question be considered " on the spot, even without the invitation and approval of the Hungarian Government".
   • On the basis of the foregoing I request, Mr. General Director, that you inform the Committee for the Freedom of Trade Unions of the above and I express the hope that an objective examination of the question on the basis of the given facts will induce the competent organs of the International Labour Organisation to conclude that a consideration of the-otherwise invalid-complaint of the International Federation of Christian Trade Unions does not belong to the competence of the International Labour Organisation and even less that of the Committee for the Freedom of Trade Unions.
6. 323. The Government of Hungary annexed to its reply an English translation of the text of Legislative Decree No. 25/1956 of the Presidential Council of the Hungarian People's Republic on Workers' Councils. This text is set forth below.
   • Socialist democracy can only be realised in practice if the factories, mines and works (hereinafter "industrial enterprises") comprising the property of the entire, people are administered by workers' councils elected by the working people of the industrial enterprises.
   • In connection with the election, authority and rules of procedure of the workers' councils the Presidential Council of the People's Republic has promulgated the following decree with the force of law:
   • Article 1. (1) Workers' councils shall be elected in all industrial plants, industrial enterprises, mines, state agricultural works including the industrial production enterprises of various state institutions (Hungarian State Railways, Postal Services, etc.).
7. (2) Working people employed in offices, institutions and organisations not engaged in production work, furthermore in railway and postal traffic, public motorcar traffic, tramway and airway traffic and waterway traffic shall not elect workers' councils.
8. (3) The provisions of this article do not pertain to handicraft, cottage industry and agricultural and other co-operatives, the affairs of which are administered by elected bodies (general assembly, board of directors, etc.).
   • Election of Workers' Councils
   • Article 2. (1) Permanent workers' councils may be elected if at least two-thirds of all the workers are present. At enterprises where workers' councils shall be elected in conformity with article 1, the provisional workers' councils shall continue to function on the basis of Government resolution No. 6/1956/XI.12 until the election of permanent workers' councils.
9. (2) The number of members of a workers' council shall vary from 11 to 71 and alternate members from 3 to 15, according to the number of workers employed by the enterprise.
   • Article 3. (1) The workers of the enterprise shall elect the members of their workers' council at a factory meeting by direct and secret ballot. The election shall be prepared by the factory trade union committee with the broadest participation of the workers.
10. (2) At the factory election meeting all the working people of the enterprise shall be entitled to a vote and every worker who has been employed by the enterprise for at least a year shall be eligible for election.
    • The director, chief engineer and chief accountant of the enterprise may not be eligible for election to the workers' council ; the director of the enterprise may, however, participate in the meetings of the workers' council with the right of consultation.
    • Article 4. (1) The elections shall, where possible, take place at a general meeting of the workers of the enterprise. At enterprises where this is not possible because of the large number of workers or because of dispersed workshops (plants) the members of the workers' councils shall be elected at meetings in each works section, shop or plant. In such cases each works section, shop or plant shall elect workers' council members in proportion to their number of workers.
11. (2) Representation in the workers' council shall be ensured for every strata of the workers in the enterprise. Two-thirds of the workers' council shall be elected from workers engaged directly in production (physical workers, foremen, technicians, engineers).
12. (3) At the election the workers shall cast their vote not for a list but for individual persons. The workers shall have the right to change the list submitted to them or to supplement the list with the names of persons they have recommended. In casting their secret ballot the voters shall have the right to delete or add any name they wish.
13. (4) The list of names of the workers' council shall be announced to the workers on the day of election if possible but at least within 24 hours following the election.
    • Article 5. (1) The workers' council shall convene within 24 hours following the election and elect from among their members a presidium of 5 to 15 members, a president and vice-president, as well as a secretary.
14. (2) In addition to the director of the enterprise the representative of the trade union committee, the representative of the competent state supervising bodies, as well as the delegate of the trade union centre, may participate in the meetings of the workers' councils with the right of consultation.
    • Article 6. (1) The members of the workers' council shall be elected for one year on the first occasion. The president of the workers' council may be elected twice in succession at the most.
15. (2) A member of the workers' council may be recalled before the end of his one-year term. A two-thirds majority vote of the workers who elected him shall be required to recall him.
    • Presidium of the Workers' Council
    • Article 7. (1) The presidium shall be the subordinate executive organ of the workers' council. The president of the workers' council shall make his proposals as to the members of the presidium on the basis of recommendations by the workers.
16. (2) The representative of the factory trade union committee and the director of the enterprise shall participate in the meetings of the presidium but the president of the workers' council may also invite the chief engineer and chief accountant of the enterprise to participate in them with the right of consultation.
    • Article 8. (1) The workers' council shall decide on the most important problems of the enterprise and shall guide the entire activity of the enterprise. Within this framework
17. 1. It shall ensure the continuity of production and the most economical operation of the enterprise.
18. 2. It shall see to it that the workers receive their wages and other remunerations due to them.
19. 3. It shall ensure the fulfilment of obligations to the State.
20. 4. It shall see to it that the obligations of the enterprise which are prescribed in the collective agreement adopted by the workers and drafted with the participation of the trade unions are fulfilled and shall support the director in ensuring work discipline.
21. 5. It shall determine the plans of the enterprise and the number of workers.
22. 6. It shall determine the structure of the enterprise and the functioning of managerial bodies of the enterprise and shops.
23. 7. Within the framework of the legal provisions it shall determine the maximum wages of the workers and employees, it shall approve the assignment of workers and employees and determine the forms of wages and the sphere of their application within the enterprise.
24. 8. It shall decide on the disposal of the earnings of the enterprise remaining above and beyond the part to be paid to the State in a proportion to be determined later by legal provisions. Accordingly it shall determine the proportion and magnitude of sums for production, social and cultural investments and renewals as well as the share of the profits of the factory workers and other purposes. It shall establish a reserve fund from the available sum.
25. 9. It shall make recommendations to the Government to allow the enterprise to conduct export and import transactions directly.
26. 10. It shall direct the money economy of the enterprise:
    • (a) within the framework of the existing legal provisions it shall dispose over the standing and circulating funds of the enterprise;
    • (b) it shall authorise the securing of credits ;
    • (c) it shall approve the report on the balance account of the enterprise.
27. (2) The workers' council shall have the right to relegate any of the powers with which it is invested to the presidium or the director who shall be obliged to report back.
    • Sphere of Authority of the Presidium of Workers' Councils
    • Article 9. (1) The presidium shall function in conformity with the decisions of the workers' council and shall prescribe the tasks of the director of the enterprise.
28. (2) The presidium shall decide between two meetings of the workers' council in such affairs of the enterprise which do not belong exclusively within the sphere of authority of the workers' councils.
29. (3) The approval of the presidium shall be required in the employment or dismissal of workers of the enterprise in responsible positions.
30. (4) The presidium may assume credits on the basis of authorisation by the workers' council.
31. (5) The presidium shall bring decisions in questions directly concerning the living and working conditions of the workers (wages, social welfare, cultural questions, etc.), but it shall be required to take into consideration the opinion of the trade union committee of the enterprise in making its decisions. If it fails to do this the matter shall be submitted to the workers' council for decision.
32. (6) It shall supervise the execution of decisions adopted by the workers' council.
33. (7) It shall require the director, chief engineer and chief accountant to deliver reports regularly.
    • Relations between the Workers' Council, the Presidium and the Director
    • Article 10. (1) The director shall execute the decisions of the workers' council and the presidium. In the event the decision of the workers' council or the presidium violates a law, decree with the force of law, or statutory decree, the director shall be obliged to refuse to execute it and shall be required to report on the decision to the superior authority.
34. (2) The director of the enterprise shall individually organise the continuity of production and on the basis of the prescriptions of the law, the decisions of the workers' council and the presidium as well as the instructions of the superior authorities he shall control the execution of the plan of the enterprise.
35. (3) The director shall call to account those workers who do not or negligently perform work which their assignment requires of them.
36. (4) Inasmuch as the presidium neglects to take steps in connection with ensuring the continuity of work in the enterprise and the execution of the plan the director shall make up for it within his own sphere of authority. The director shall report on this at the earliest meeting of the presidium.
37. (5) Inasmuch as there is disagreement between the director and the workers' council the disputed questions shall be submitted to the superior authority-if necessary directly to the ministry.
    • Article 11. The director of the enterprise shall be appointed and dismissed by the superior state authority designated in the statutory provision.
    • Questions of Procedure
    • Article 12. (1) The workers' council shall hold its meetings generally once a month-if possible outside of work hours-in which the participation of the council members shall be compulsory. In justified instances the president of the workers' council may permit absences.
38. (2) It shall be the president's task to convene the meeting and prepare the agenda ; he shall also inform the workers of the enterprise of the agenda.
39. (3) The workers' council shall discuss previously determined points of the agenda, however, on a proposal by any member of the council-on the basis of a decision of the council-questions not previously determined may be adopted in the agenda of the meeting.
    • Article 13. (1) The workers' council may bring a valid decision if at least two-thirds of the members are present.
40. (2) The workers' council shall bring its decision with a majority vote.
    • Article 14. (1) The president of the workers' council may invite-when necessary-various experts to the meeting (physical or office workers).
41. (2) At every meeting the president of the workers' council shall be required to report on the work of the enterprise since the previous meeting. This report may also be made by the director of the enterprise in place of the president.
42. (3) The workers' council may submit important matters which affect the entire enterprise to a meeting of the workers of the enterprise for a decision.
    • Article 15. (1) The provisions of articles 12-14 shall apply to the meetings of the presidium according to their meaning.
43. (2) The presidium shall hold its meetings generally once a week.
44. (3) The presidium shall report quarterly to the workers' council on its work.
    • Miscellaneous and Final Provisions
    • Article 16. (1) The members of the workers' councils shall perform their tasks on a voluntary basis, they are not exempted workers.
45. (2) An elected member of the workers' council - as long as he is in office - may not be dismissed from his job.
    • Article 17. (1) The president of the council shall be obliged to convene the meetings of the workers' council and the presidium if one-third of the members, the director, or the trade union committee so desires.
46. (2) At the meetings of the workers' council and the presidium the voting shall be secret if one-third of the members so desire, and at the general meetings of the workers of the factory the voting shall be secret in every case.
    • Article 18. The present decree with the force of law shall go into effect on the day of its publication.

B. B. The Committee's conclusions

• Preliminary Question as to the Competence of the Committee
  324. 324 In its reply the Government of Hungary maintains that the examination of the complaint of the International Federation of Christian Trade Unions is not within the competence of the Committee on Freedom of Association and gives several reasons for this view.
  325. 325 One of these reasons is that "it is the sovereign right of every State to begin criminal proceedings within the framework of its penal prerogative against persons who have committed subversive acts against the legal State order". The Committee has frequently had occasion in the past to consider similar contentions by governments that a complaint relates to a matter which is exclusively of a political character. It has consistently taken the view that, while it is inappropriate for the I.L.O to discuss questions of a purely political character, situations which are purely political in origin may have trade union aspects which the I.L.O may be called upon to examine. It considers that it should be guided by this principle in its consideration of this particular case and confine its examination to the purely trade union aspects of the case.
  326. 326 The Hungarian Government also contends that as the workers' councils, members of which it admits have been arrested, are not trade unions, the matter lies outside the competence of the Committee. In its First Report the Committee had occasion to consider the meaning of the term " organisation of workers " for the purpose of determining the organisations entitled to submit complaints to the Committee. It adopted for this purpose criteria which were based on the conclusions unanimously approved by the Governing Body in 1937 in the Labour Party of the Island of Mauritius Case when considering a representation under article 24 of the Constitution of the Organisation (then article 23). In that case, the Governing Body affirmed that it was for the Governing Body to examine in each individual case what the nature of an association making a representation in fact is, irrespective of its name, which might be determined by local circumstances having no bearing on its real character. In the report which it approved, it is stated, in particular : "In one country the right of workers and employers to form industrial associations may be subject to restrictions, and trade unions in the true sense may exist under a name concealing their exact identity. In another country, an industrial association may bear a name that would suggest that it is of the character of a political party. It is the duty of the Governing Body to determine in each case, independently of the terminology employed and of the name that may have been imposed on the association by circumstances or selected by it, whether the association from which the representation emanates is in fact an industrial association of employers or workers' in the natural meaning of the words. In particular, when considering whether a body is an industrial association, the Governing Body cannot be bound by any national definition of the term industrial association." The Governing Body also declared in the Island of Mauritius Case that " although the Governing Body, when deciding whether a body making a representation is or is not an industrial association, enjoys full discretion within the limits of the Constitution, and is not bound by the legislative or customary terminology of the State concerned, it must nevertheless, before it decides a representation to be receivable, be convinced that the association making it is, in fact, an industrial association ". The Committee reaffirmed these principles in Case No. 137, relating to Brazil.
  327. 327 The Committee considers that the principles which are applicable for the purpose of determining whether an organisation is entitled to submit a complaint to the Committee are equally applicable for the purpose of determining whether an organisation, the freedom of which is the subject matter of a complaint submitted to the Committee, is an organisation to which the procedure for the examination of allegations of infringements of trade union rights applies. In the present case, the relationship between the trade unions and the workers' councils is so close that measures which restrict the freedom of the one also restrict the freedom of the other. It would appear from the text of Legislative Decree No. 25 of 24 November 1956, communicated to the Committee by the Hungarian Government, that it provides for considerable intervention by the trade unions in the workers' councils. Preparations for the elections of workers' councils are the duty of the factory trade union committee (article 3 (1) ). Representatives of the trade union centre may participate in the meetings of the councils (article 5 (2)) and in the meetings of the presidium of a workers' council (article 7 (2) ). The presidium of a workers' council must consult the trade union committee before taking decisions (article 9 (5) ). It is the function of the workers' council to ensure the fulfilment of the collective agreement within the undertaking with the participation of the trade unions (article 8 (4)). In these circumstances, the Committee considers itself competent to report to the Governing Body concerning the allegations relating to the arrest of members of workers' councils.
  328. 328 The Hungarian Government also submits a third contention, namely that the request of the complaining organisation for an on-the-spot investigation, even without the consent of the Government concerned, infringes the sovereignty of the Hungarian People's Republic. The Committee considers that it is not called upon to examine the relationship of such a request to sovereignty-a question of an abstract character on which it may not be in a position to form an opinion-but that it is preferable for it to examine the matter in relation to the rules governing its own competence. In so doing it is following the example of the Permanent Court of International Justice which, in the Case relating to the Competence of the International Labour Organisation with respect to Agricultural Labour, set on one side an argument that as the establishment of the International Labour Organisation involved an abandonment of rights derived from national sovereignty, the competence of the Organisation must be restrictively interpreted and considered that the question at issue " must resolve itself into what the terms of the Treaty actually mean ". In the same spirit, the Committee has examined the request made to it solely in relation to the rules governing its own competence in accordance with the procedure for the examination of allegations relating to infringements of trade union rights, as defined by the Governing Body in agreement with the Economic Council, and subsequently approved by the Conference. This procedure does not provide for an on-the-spot investigation without the consent of the government concerned and the Committee, accordingly, considers that it would be outside its competence to make any such recommendation which could not in any case be made practically effective in present circumstances. The Committee recalls, however, that, by a decision taken at its 133rd Session (November 1956), the Governing Body informed the General Assembly of the United Nations that the International Labour Organisation will co-operate with the General Assembly in any arrangements made to ascertain the facts of the present situation in respect of freedom of association in Hungary. No such arrangements have been made.
  329. 329 In all these circumstances the Committee has examined the substance of the complaint, particularly as the Government of Hungary has presented its observations on the substance.
• Allegations relating to Arrests of Members of Workers' Councils
  330. 330 The International Federation of Christian Trade Unions alleges that members of workers' councils have been arrested by the Hungarian authorities in violation of freedom of association. The Government admits that a number of members of workers' councils have been detained, stating that counterrevolutionary elements hostile to the working class, who had infiltrated into the workers' councils and engaged in subversive activities against the State, have been proceeded against in accordance with the provisions of Hungarian penal law. The Government states that the participants in these subversive activities were guilty of concealing arms and of carrying on a campaign of sedition against the State order of the Hungarian People's Republic. The Government declares that, as it is the sovereign right of every State to begin criminal proceedings against persons who have committed subversive acts, the question of the arrest of certain workers' council members does not fall within the competence of international organisations.
  331. 331 The Government of Hungary admits that certain members of workers' councils have been detained because of their alleged subversive activities. The International Federation of Christian Trade Unions has not, however, mentioned any specific case of a trade unionist being detained and has not furnished further information in substantiation of its complaint, as it had the opportunity to do.
  332. 332 In several cases which have come before the Committee, in which it was alleged that trade union officers or members had been preventively detained, the Committee has expressed the view that measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the right of all detained persons to receive a fair trial at the earliest possible moment. In the present case, the Government declares that the detentions have taken place in exceptional circumstances, in that counter-revolutionary elements have endeavoured to overthrow the régime of the People's Republic. The detained persons, continues the Government, are being proceeded against in respect of subversive activities against the State before the competent Hungarian authorities, in accordance with Hungarian penal law. While noting the Government's statement that those detained are being proceeded against before the competent authorities, the Committee observes that it has no information as to whether those authorities are independent judicial authorities and, therefore, considers it necessary to reaffirm the importance which it has always attached in such cases to the guarantees of due legal process. In the past, moreover, where allegations that trade union leaders or workers have been arrested for trade union activities have been met by governments with statements that the arrests were made because of the subversive activities of those detained, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the nature of the proceedings instituted as a result thereof and the result of such proceedings. The Committee has also indicated the importance which it attaches to these guarantees of due process including safeguards against the retroactive application of any penal law.

The Committee's recommendations

1. 333. The present complaint is of strictly limited scope. Apart from a general charge of " new flagrant violations of freedom of association and workers' fundamental rights ", in respect of which the complainant has not exercised the right to furnish further information in substantiation of the complaint, it deals only with the arrest of members of workers' councils. It therefore does not raise the larger issues on which the views expressed by the Committee in its 21st Report have already been approved by the Governing Body. In these circumstances the Committee considers that the most appropriate course for it to follow in respect of the present complaint is for it to recommend the Governing Body:
   • (a) to reaffirm the importance which it has always attached to a prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions ;
   • (b) to reaffirm the importance which it attaches to full protection in such cases against the retroactive application of any penal law ;
   • (c) to declare that these principles are fully applicable to the arrest of members of workers' councils by the Hungarian authorities ;
   • (d) to reaffirm the willingness and desire of the International Labour Organisation to participate in establishing by means of objective investigation the facts of the present situation in respect of freedom of association in Hungary.
     • Geneva, 2 March 1957. (Signed) Henry HAUCK, Chairman.