Report in which the committee requests to be kept informed of development - Report No 360, June 2011

Case No 2777 (Hungary) - Complaint date: 05-AUG-10 - Closed

Allegations: The complainant organization alleges that the detailed requirements for the registration of trade unions (including content requirements for trade union constitutions) imposed by courts have resulted in the delay of registration of the Szent Flórián Association of Firefighters and the delay or refusal of registration of many other affiliates

1. 743. The complaint is contained in a communication from the Democratic League of Independent Trade Unions (LIGA) dated 5 May 2010.
2. 744. The Government forwarded its response to the allegations in a communication dated 29 October 2010.
3. 745. Hungary has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 746. In a communication dated 5 May 2010, the complainant organization alleges that the detailed requirements for the registration of trade unions (including content requirements for trade union constitutions) imposed by courts have resulted in the delay of registration of the Szent Flórián Association of Firefighters and the delay or refusal of registration of many other affiliates. According to the complainant, the court procedures hindered the establishment of trade unions and interfered with their autonomy to an extent that seriously violates freedom of association.
2. 747. As regards the Szent Flórián Association of Firefighters (Szent Flórián Tuzolto Vedegylet), the complainant indicates that it was established on 22 September 2009 as an employee interest representation organization for firefighters and that it submitted an application for registration by the Csongrad County Court three days later (Pk.60.147/2009). The court ordered the trade union to provide corrections first on 12 October and then on 30 November 2009 because it had found that the union’s constitution did not conform to certain provisions of Act II of 1989 on the right to organize. Due to the two orders for corrections, the trade union had to convene its members again on two more occasions after the founding assembly in order to amend the constitution as requested. According to the complainant, since the trade union members are firefighters with an uninterrupted work order and a complicated and uneven timetable, this meant extra difficulties, which in itself endangered the registration of the union. The court order registering the trade union only became legally binding on 2 February 2010, four months after the corrections ordered by the court had been completed, and it was only then that the organization could start operating.
3. 748. In its orders to correct and amend the constitution, the court had objections to 24 points in the constitution and formulated detailed instructions not only concerning the trade union’s organization and operation but also its membership and scope of organization. The complainant enumerates three requirements that were the most difficult to meet.
   • (i) The original constitution intended to establish a nationally organized trade union for employees and former employees working in fire service and civil protection (constitution, section I/8). The court, however, declared that the trade union could not be representative at the national level, because the organization had been established in a workplace in Hodmezovasarhely. It found that this provision of the constitution does not comply with the law and ordered the trade union to amend the constitution. As a result, the trade union could not develop into a national professional organization for firefighters.
   • (ii) The court limited the possible scope of membership by prescribing that those persons who do not fall under the scope of Act XLIII of 1996 on the service status of professional members of the armed services (Hszt.), but fall under the scope of other acts regulating employment relationships (for example as public employees or civil servants), are not allowed to become members of the trade union. The court explicitly prescribed that the trade union should only have members who are in an employment relationship with a state or municipal agency (sections I/7 and II/l).
   • (iii) The court held that the provision of the constitution (section VI/2), stating that if the trade union is dissolved the remaining property can be divided among the members, should be deleted.
4. 749. The complainant believes that the court orders described above violate Articles 2 and 3(1) of Convention No. 87, according to which workers’ organizations shall have the right to draw up their constitutions and rules, and workers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. By restricting the scope of organizing the trade union to workers falling under the scope of Act XLIII of 1996 on the service status of professional members of the armed services (Hszt.), the court unlawfully made a distinction between workers with different employment relationships, but working in similar or the same areas or professions.
5. 750. Furthermore, as regards other affiliates, the complainant indicates that their registration was also delayed or hindered by court procedures. The courts requested member organizations to correct the following main “deficiencies”.
   • (i) Use of headquarters: The Vas County Court (Pk.60.118/2007/2) requested the Independent Trade Union of Savings Cooperatives (Takarekszovetkezetek Fiiggetlen Szakszervezete) on two occasions, on 7 January and 20 February 2008, to amend its constitution within a 45-day and then a 15-day limitation period. On the first occasion the court enumerated the deficiencies it had perceived under ten main points and five sub-points, on seven pages, and when all of them had been corrected, the court was still dissatisfied with the trade union’s certificate of entitlement to use its headquarters. In order to register the trade union, the court insisted that it should enclose a document concerning the property assigned as headquarters which confirms the trade union’s title to use the headquarters, including a less than three-month-old copy of the title deed and a written declaration by the owners of the property stating that they put the property assigned as headquarters at the trade union’s disposal for this purpose. The trade union obtained and enclosed the requested title deed within the deadline set for deficiency correction, while also correcting the other deficiencies. At this point, the court objected that, according to the title deed, the property had several owners, who had not all declared that they permitted the property to be used for trade union purposes, and thus requested the enclosure of further certifications. The Metropolitan Court of Budapest also asked for a copy of the title deed to allow the use of headquarters (7.Pk.60.231/2006), and the Gyor-Moson-Sopron County Court requested an agreement to the use of the headquarters as a private document providing full evidence (Pk.T.60.170/2008/2).
   • (ii) Determination and rate of membership fees: The Gyor-Moson-Sopron County Court requested the Independent Trade Union of Private Security Employees (Maganbiztonsagi Munkavallalok Fuggetlen Szakszervezete) to change the rate of fees (Pk.T.60.170/2008/2). The court objected that the rate of 1 per cent of members’ gross wages, determined in a uniform manner for each member, violates the principle of democratic operation, since determining membership fees as a wage percentage means that fees will vary from one member to another.
   • (iii) Employer’s agreement: The Metropolitan Court of Budapest explicitly required the Independent Trade Union of Electronic Workers (Elektronikai Munkavallalok Fuggetlen Szakszervezete) (7.Pk.60.231/2006) to enclose the employer’s agreement to the establishment of the trade union, as a condition for registration.
   • (iv) Other trade union operation requirements: The courts asked for detailed regulations in the unions’ constitutions concerning the expulsion of members, the termination of a membership relationship, or, for example, the operation of the supervisory committee including the way its agenda is communicated (Vas County Court Pk.60.118/2007). The Metropolitan Court of Budapest requested that the constitution should include the manner of convening the board meetings and the auditing committee meetings, and the manner of communicating their agenda (7.Pk.60.231/2006).
   • (v) Form and deadline of correcting deficiencies: The application for registration can only be submitted on an official form which, unless completed correctly by the applying trade union, can in itself be a reason for the court to refuse the registration. There is no official guidance for completing the form, so the courts themselves determine the criteria, e.g. definition of the purpose of the social organization under point I/5 in form number 1014 (Vas County Court Pk.60.118/2007/2) or inclusion of the application form in a private document providing full evidence (Gyor-Moson-Sopron County Court). Moreover, the court orders contain highly prejudicial warnings reminding unions that if they miss the 15- to 30-day or, in certain cases, 45day deadline for correcting the deficiencies, no certification will be accepted, and the court will refuse to register the trade union. As the orders for deficiency correction require the amendment of the constitution, the founding assembly needs to be reconvened, which in turn involves a lot of effort, costs and organizing. It is often difficult to find a suitable date, given that the courts demand exactly the same persons to participate at the reconvened assembly who were present as founders at the founding assembly. If the participants are not the same, the whole founding procedure must be restarted, including the election of officers (Gyor-Moson-Sopron County Court, Pk. 60.170/2008/2). All this must be certified with the attendance register, including the signature of those present, and their address.
6. 751. The complainant believes that the court procedures and practices described above violate Articles 2 and 3(2) of Convention No. 87, as they do not allow trade unions to draw up their constitutions and define themselves their manner of operation, and because no previous authorization should be prescribed for the establishment of a trade union. According to the complainant, the practice of Hungarian courts also violates Article 8(2) of Convention No. 87, according to which the rights provided for in the Convention cannot be impaired by the law of the land. The cases described demonstrate that the manner in which the law is applied restricts the establishment and registration of trade unions.
7. 752. Pursuant to section 25(2) of Act II of 1989 on the right to organize, section 11 regulating the establishment of the highest body as well as of the executive and representative bodies within the organizational order of social organizations, does not cover trade unions and employers’ interest representation organizations. The provisions of Chapter II and III of the Act regulating the constitution of social organizations and the members’ rights and responsibilities are applicable to trade unions and are usually cited by courts when objecting to the rules of a trade union’s constitution. According to section 6(1), the constitution of a social organization shall ensure its democratic operation based on the principle of self-governance and promote the realization of members’ rights and responsibilities. According to the complainant, courts particularly cite this section to be able to examine the organization and operation of trade unions, thus evading in effect the prohibitive rule formulated in section 25(2) and prescribing unrestricted and detailed content requirements for trade union constitutions.
8. 753. Although the law allows for appealing against the order of the Court of First Instance rejecting registration, this only makes the procedure even longer, preventing the trade union from actually starting operating. Having to repeatedly convene the general assembly and the members’ meeting as a result of several orders to correct deficiencies not only means an expensive procedure requiring a lot of effort but also discourages members from establishing a trade union. The order to correct deficiencies cannot be appealed against. Thus, the trade union either meets the requirements of the court or its registration is refused.
9. 754. The complainant indicates that it turned to the Chief Justice of the Supreme Court on two occasions, on 26 April 2006 and then on 1 July 2009, asking him to examine the controversial practice experienced at the courts and to make the necessary steps in order to change the situation. The first letter was answered on 11 May 2006 by the then Chief Justice of the Supreme Court who did not express dissatisfaction with the practice of the courts. The second letter has not been answered by the newly appointed Chief Justice.
10. 755. In light of the above, the complainant organization requests that the Committee on Freedom of Association examine the complaint and that the Governing Body call on the Hungarian Government to implement measures or introduce legal regulations that can guarantee the right to freedom of association with special emphasis on the right of trade unions to be registered, to freely draw up their constitution and to freely operate in compliance with Convention No. 87.

B. The Government’s reply

1. 756. The Government does not agree with the statement of the LIGA that national legislation is not in conformity with Convention No. 87. When registering trade unions, courts evaluate the application for registration only from the aspect of legality. The relevant law sets out a strict deadline for the procedure, and upon the court’s failure to meet such deadline the application must be approved with the original content. If the rules of procedure are not observed, the applicants are entitled to resort to legal remedy, as appropriate.
2. 757. The Government states that the starting point in reviewing national legislation is Act XXII of 1992 on the Labour Code, according to which all employee organizations whose primary function is the promotion and protection of employees’ interests related to their employment relationship, shall be construed as trade unions. In legal terms, a trade union is an association (social organization) which has a special purpose: the protection of employee interests. Therefore, in addition to the Labour Code, Act II of 1989 on the right to organize is also applicable to trade unions. In other words, associations whose aim is to promote and protect the interests of employees are entitled to the trade union rights defined in the Labour Code, and, since a trade union is a type of association, are subject to the rules pertaining to associations as regards their foundation, organization and operation. Thus, a trade union may be established, if: (i) at least ten founding members have decided to establish the organization; (ii) have adopted its statutes; and (iii) have elected its managing and representative bodies.
3. 758. The Government indicates that a trade union is deemed to have been founded upon its registration by the county court (or the Municipal Court of Budapest) in the territorial jurisdiction of which the trade union is established. The application for registration must be filed by the person authorized to represent the trade union on the form designated for this specific purpose. In the Government’s view, the use of this form does not make it more difficult to compile the application but rather easier. The Government highlights that it is compulsory to approve the application if the founders have fulfilled all requirements set out in the Act so, in this respect, the court has no discretionary powers. The union officially comes to existence upon the entry into force of the decision on its registration, and it may commence its activity as of the date thereof (section 4 of Act II of 1989).
4. 759. According to the Government’s reply, the court adopts a decision on the registration of the trade union in a non-litigious procedure within 60 days from the date of receipt of the application. Should the court fail to meet its decision-making obligation within the specified deadline, the so-called “principle of automatic registration” comes into effect. Based on this principle, the court executive officer is required to take the necessary action in order to have the application evaluated within eight days after the expiry of the deadline; otherwise the registration becomes effective with the content of the application on the ninth day following expiry of the original deadline. If the application is incomplete, the court may order the applicant to remedy deficiencies within 30 days from receipt of the application. The court must allow sufficient time – a maximum of 45 days – for remedying deficiencies, which may be extended by a further 15 days upon request, if found reasonable. In the event that the applicant fails to remedy deficiencies within the deadline or remedies them partially or incorrectly, no application for continuation with justification may be lodged, and the court will reject the application upon a final ruling (section 15 of Act II of 1989).
5. 760. Pursuant to Act III of 1952 on the Code of Civil Procedure, no appeal may be lodged against rulings adopted in the course of the proceedings, including orders calling for the remedy of deficiencies (section 233(3)(b) of the Code of Civil Procedure). The Government considers, however, that if the applicant trade union was of the opinion that there is no need to remedy any deficiencies, and if in the absence of remedy the court rejected the application, the applicant could lodge an appeal against the court’s decision. The Government states that it has no information as to whether the unions concerned have exercised their right to legal remedy.
6. 761. According to the Government’s reply, trade unions – as all associations – are independent legal entities and have the right to determine their own internal organizational structure. Thus, Act II of 1989 contains only a few principles laid down with respect to the organizational structure, and trade unions may act within the framework of those principles at their own discretion. For example, trade unions must operate in a democratic way, on the basis of self-government (section 6(1)). They are required to specify their internal organizational structure in the statute, and are also free to set forth the terms and conditions of membership. The statute of the union must provide for the following: (i) the name of the trade union according to section 7(2) (which must differ from the name of other civil society organizations already registered and operating in a similar sphere of activity in the territory of Hungary); (ii) its purpose (that is, the exclusive purpose of representing employees’ interests); (iii) its registered seat; and (iv) its organizational structure according to section 6(2).
7. 762. In the Government’s view, when courts evaluate the applications for registration, they only check whether the applications comply with the legal requirements summarized above. In practice, this is an extremely detailed and thorough investigation because every association is a legal entity, which is entitled to pursue an economic activity – even if it is not their primary activity – and may therefore gain substantial earnings. In this regard, it is in the public interest to ensure that these organizations operate in compliance with the law. The Government states that the same applies to the certification of the use of registered seats: it is a prerequisite of legal operation that the legal entity can certify its right to use the real property designated as its registered seat. Obviously, the courts do not check whether the chosen seat is suitable for the activity; they only require a certification of the right to use it. The Government stresses that such thorough control is not only applied to trade unions but to any other associations as well.
8. 763. Finally, the Government explains that the right to organize means that the trade union has an organization independent from the employer, so it may have organizational units that operate at lower (e.g. principal place of business) or higher (e.g. county) levels than those of the employer. The Labour Code sets forth that employees are entitled to organize trade unions within the work organization, and it is the trade union’s right to operate bodies inside any work organization and to involve its members in the operation of such bodies. Unless otherwise provided for by the statute of the trade union, these bodies of workplaces or principal places of business may operate as independent legal entities as well. Trade unions have the right to establish or join leagues or confederations, including international leagues. The organization and operation of such leagues, as well as their registration and legal capacity are subject to the rules applicable to trade unions.
9. 764. In summary, the Government is of the view that regulating the registration procedure of trade unions guarantees their freedom to organize and allows acting courts only a minimum degree of review for the purposes of legitimacy. On the other hand, the Government notes that in some cases the attached rulings do raise an objection to the application for registration, which is not reasonable in respect of the above legislation, in particular the requirement that the employer must consent to the establishment of the trade union (this would only be justified if the trade union takes the employer’s name). Similarly, the Government does not agree with the acting court in that the membership fee cannot be determined as a percentage of the member’s wage. However, in such cases of misinterpretation of law where the acting court goes beyond the limits of its powers of review set forth in the above legislation, the Government highlights the possibility to lodge an appeal against the decision rejecting the application for registration with a court of second instance.

C. The Committee’s conclusions

1. 765. The Committee notes that, in the present case, the complainant alleges that the detailed requirements for the registration of trade unions (including content requirements for trade union constitutions) imposed by courts have resulted in the delay of registration of the Szent Flórián Association of Firefighters and the delay or refusal of registration of many other affiliates.
2. 766. The Committee notes from the complainant’s allegations that the Szent Florian Association of Firefighters submitted an application for registration by the Csongrad County Court on 25 September 2009, and that the court objected to 24 points in the union’s constitution and issued two orders to amend the constitution. The Committee notes that, as a result, the union had to convene its members who are firefighters on two occasions after the founding assembly, which was costly and difficult to organize. The court order registering the trade union became legally binding four months after the corrections ordered by the court had been completed. The Committee notes that the following three requirements were particularly difficult to meet:
   • (i) the court ordered to amend the union’s constitution, which intended to establish a nationally organized trade union for employees and former employees working in the fire service and civil protection, holding that under the law the union could not be representative at the national level because it had been established in a workplace; as a result, the trade union could not develop into a national professional organization for firefighters;
   • (ii) the court limited the possible scope of membership by prescribing that those persons who did not fall under the scope of Act XLIII of 1996 on the service status of professional members of the armed services, but fell under the scope of other acts regulating employment relationships (for example as public employees or civil servants), were not allowed to become members of the trade union, and explicitly prescribed that the union should only have members who are in an employment relationship with a state or municipal agency; and
   • (iii) the court held that the provision of the constitution according to which if the trade union was dissolved the remaining property could be divided among the members, should be deleted.
3. 767. Furthermore, as regards other affiliates, the Committee notes the complainant’s indication that their registration was also delayed or hindered, as courts requested them to correct the following deficiencies.
   • (i) Use of headquarters: The Vas County Court requested the Independent Trade Union of Savings Cooperatives to correct deficiencies (enumerated on seven pages), and in particular expressed dissatisfaction with the union’s certificate of entitlement to use its headquarters and insisted that it should enclose a document confirming the union’s title to use the property assigned as headquarters, including a less than threemonth-old copy of the title deed and a written declaration by the owners that they put the property assigned as headquarters at the union’s disposal. Although the union obtained and enclosed the requested title deed and corrected the other deficiencies within the deadline, the court objected that, according to the title deed, the property had several owners, who had not all declared that they permitted the property to be used for union purposes, and thus requested the enclosure of further certifications. The complainant indicates that the Metropolitan Court of Budapest and the Gyor-Moson-Sopron County Court issued similar orders.
   • (ii) Determination and rate of membership fees: The Gyor-Moson-Sopron County Court requested the Independent Trade Union of Private Security Employees to change the rate of fees, objecting that the rate of 1 per cent of members’ gross wages violates the principle of democratic operation, since determining membership fees as a wage percentage means that fees will vary from one member to another.
   • (iii) Employer’s agreement: The Metropolitan Court of Budapest explicitly required the Independent Trade Union of Electronic Workers to enclose the employer’s agreement to the establishment of the union, as a condition for registration.
   • (iv) Other operational requirements: The courts asked for detailed regulations to be included in the unions’ constitutions, for example on the expulsion of members, termination of membership relationship, operation of the supervisory committee including the way its agenda is communicated; the manner of convening the board and auditing committee meetings as well as the manner of communicating their agenda.
4. 768. The Committee also notes that the application for registration can only be submitted on an official form, which, unless properly completed, can in itself be a reason for the court to refuse the registration; however, there is no official guidance for completing the form, so the courts themselves determine the criteria, e.g. definition of the purpose of the social organization. Moreover, the complainant states that if the unions miss the 15- to 30-day or, in certain cases, 45-day deadline for correcting the deficiencies, the court will refuse registration. As the orders for deficiency correction require the amendment of the constitution, the founding assembly needs to be reconvened, which in turn involves a lot of effort, costs and organizing, given that the courts demand exactly the same persons to participate at the reconvened assembly who were present as founders at the founding assembly.
5. 769. Finally, the Committee notes from the allegations that the prohibitive rule according to which section 11 regulating the organizational order of social organizations does not apply to trade unions (section 25(2) of Act II of 1989), is effectively evaded in that courts cite section 6(1) when examining the organization and operation of unions and prescribing detailed content requirements for their constitutions. In the complainant’s view, although the law allows for appeal against orders rejecting registration, this would only lengthen the procedure preventing the union from actually starting operating. On the other hand, having to repeatedly convene the general assembly as a result of several orders to correct deficiencies which cannot be appealed against, not only means a costly procedure requiring a lot of effort but also discourages members from establishing a trade union. Thus, the union either meets the court requirements or its registration is refused. The complainant indicates that it turned to the Chief Justice of the Supreme Court in 2006 and 2009 calling for steps to change the controversial practice experienced at court. The reply to the first letter did not express dissatisfaction with the court practice. The second letter remained unanswered.
6. 770. The Committee notes the Government’s statement that national legislation is in conformity with Convention No. 87. The Government explains that associations whose aim is to promote and protect the interests of employees are entitled to the trade union rights defined in the Labour Code, and, since a trade union is a type of association, are subject to the rules pertaining to associations as regards their foundation, organization and operation. Unions – as all associations – are independent legal entities and have the right to determine their own internal organizational structure. Thus, Act II of 1989 contains only a few principles laid down with respect to the organizational structure, and trade unions may act within the framework of those principles at their own discretion. For example, trade unions need to operate in a democratic way, on the basis of self-government. They are required to specify their internal organizational structure in the statute, and are also free to set forth the terms and conditions of membership. The statute of the union must provide for: (i) the name of the trade union; (ii) its purpose (that is, the exclusive purpose of representing employees’ interests); (iii) its registered seat; and (iv) its organizational structure.
7. 771. The Committee further notes the Government’s indication that, when registering trade unions, courts evaluate the application for registration only from the aspect of legality, that is, they only check whether the applications comply with national legislation. In practice, this is an extremely detailed and thorough investigation because every association is a legal entity, which is entitled to pursue an economic activity – even if it is not their primary activity – and may therefore gain substantial earnings. The Government concludes that it is in the public interest to ensure that these organizations operate in compliance with the law and highlights that the courts have no discretionary powers and have to approve the application, if the founders have fulfilled all requirements set out in Act II of 1989.
8. 772. As regards the application form for registration, the Committee notes that, according to the Government, the use of this form by the court does not make it more difficult to compile the application but rather easier.
9. 773. Concerning the deadline for remedying deficiencies, the Committee notes from the Government’s reply that, if the application is incomplete, the court may order the applicant to remedy deficiencies within 30 days from receipt of the application. The court must allow sufficient time (maximum 45 days) for remedying deficiencies, which may be extended by 15 days upon request, if found reasonable. In the event that the applicant fails to remedy deficiencies within the deadline or remedies them partially or incorrectly, the court will reject the application. The Government further indicates that the deadline for this non-litigious procedure is 60 days from the date of receipt of the application, and that, if the court fails to adopt a decision on the union registration within the deadline, the application must be approved with the original content (“principle of automatic registration”).
10. 774. The Committee also notes that, in the Government’s view, if the rules of procedure are not observed, the applicants are entitled to resort to legal remedy, as appropriate. While no appeal may be lodged against orders calling for the remedy of deficiencies pursuant to the Code of Civil Procedure, the Government considers that, if the applicant union was of the opinion that there was no need to remedy any deficiencies, and if in the absence of remedy the court rejected the application, the applicant could lodge an appeal against the court’s decision. The Government states that it has no information as to whether the unions concerned have exercised their right to legal remedy.
11. 775. The Committee notes the information provided by the Government as regards the matters qualified by the courts as deficiencies to be remedied by the relevant union:
    • (i) Use of headquarters: The Government considers that it is a prerequisite of legal operation that the legal entity (not only trade unions but any other association) certify its right to use the real property designated as its registered seat; thus, while courts do not check whether the chosen seat is suitable for the activity, they require a certification of the right to use it.
    • (ii) Employer consent: The Government acknowledges that the court’s objection to the application for registration on the grounds that the employer must consent to the establishment of the trade union, is not reasonable in respect of national legislation but considers that in such cases of misinterpretation of law, the union has the possibility to file an appeal against the decision rejecting the application for registration with a court of second instance.
    • (iii) Membership fee: Similarly, the Government does not agree with the acting court’s view that the membership fee cannot be determined as a percentage of the member’s wage but again highlights the possibility to lodge an appeal against the decision.
12. 776. The Committee takes note of the underlying legislation (Act II of 1989 on the right to organize), in particular: section 6(1) providing that the constitution of an association shall ensure its democratic operation based on the principle of self-governance and promote the implementation of the members’ rights and responsibilities; section 6(2) according to which the statute of an association must provide for the name of the association, its purpose, its registered seat and its organizational structure; section 8 providing that membership is open to Hungarian nationals and residents; section 11 regulating the structure of a social organization (establishment of the highest body as well as of the executive and representative bodies); and section 25(2) according to which section 11 does not apply to trade unions. The Committee observes that the above legislation would not appear to contain prescriptive content requirements for union constitutions or provisions regulating the internal functioning of unions with a level of detail which would pose a serious risk of interference by the public authorities.
13. 777. As regards the manner of applying the provisions of Act II of 1989, the Committee notes the divergent views of the parties to the complaint. While the complainant organization believes that the practice of the courts is to ignore the prohibitive rule in section 25(2) of the Act (that is, the non-application to trade unions of section 11 regarding structure) by examining the organization and operation of unions and prescribing detailed content requirements for their constitutions, the Government states that the courts evaluate the application for registration strictly from the point of view of legality.
14. 778. The Committee wishes to draw attention in this regard to the following considerations trusting that they will be taken into account in the future.
    • (i) Membership: While noting that the court limited the union’s membership to persons falling under Act XLIII of 1996 on the service status of professional members of the armed services, the Committee observes that the scope of this Act appears to go beyond members of the armed forces and the police. The Committee recalls that firefighters should be afforded the right under Article 2 of Convention No. 87 to establish and join the organization of their own choosing, including the right to be able to form or join higher-level organizations with a membership that is no longer restricted but may also encompass firefighters covered by general labour law.
    • (ii) Property division: Given that the Committee has repeatedly held that, when a union ceases to exist, its assets could be handed over to the association that succeeds it or distributed in accordance with its own rules; but where there is no specific rule, the assets should be at the disposal of the workers concerned (see Digest of decisions and principles of the Freedom of Association Committee, op. cit., para. 707), the Committee, while recognizing that there might be relevant national legislation that applies, considers that provisions of by-laws concerning devolution of trade union property in case of voluntary dissolution should not, as a general rule, hinder registration of a union.
    • (iii) Membership fee: Recalling that questions concerning the financing of trade union and employers’ organizations, as regards both their own budgets and those of federations and confederations, should be governed by the by-laws of the organizations, federations and confederations themselves (see Digest, op. cit., para. 473), the Committee expresses concern at the court’s objection to the determination of the membership fee as a wage percentage and considers that this matter should be left to the union by-laws, including the expression of union dues in the form of a wage percentage;
    • (iv) Employer consent: The Committee notes that the Government and the complainant organization appear to agree that the employer’s consent to the establishment of the union should not be required as a condition for registration. Indeed, the Committee considers that such a requirement would constitute a clear violation of the principles of freedom of association;
    • (v) Use of headquarters: Noting that both the Government and the complainant appear to accept the general requirement for a certificate of the union’s entitlement to use its headquarters, the Committee expresses concern at the detailed demands from the court for additional documents mentioned in the complainant’s allegations, which resulted in a delay in the registration procedure. The Committee considers that registration should be a mere formality and recalls that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations (see Digest, op. cit., para. 276). It therefore requests the Government to ensure that the rules governing the registration of social organizations as regards headquarters use do not operate in a manner as to impede the free exercise of the right to organize.
    • (vi) Inclusion of provisions on member expulsion, termination of membership, operation of committees, etc.: The Committee recalls that, under Article 3(1), workers’ organizations shall have the right to draw up their constitutions and rules, and that any obligation on a trade union to base its constitution on a compulsory model (apart from certain purely formal clauses) would infringe the rules which ensure freedom of association [see Digest, op. cit., para. 384]. It considers that, while the imposition of provisions on the expulsion of members or termination of membership could be justified with the objective of protecting the interests of union members by clearly establishing the relevant rules, the prescription of detailed content requirements regarding the operation of the supervisory committee, the manner of convening board and auditing committee meetings, or the manner of communicating their agenda, would appear to constitute undue interference by public authorities.
15. 779. In light of the above, the Committee more generally observes that, while the courts cite the provisions of Act II of 1989 (particularly its section 6(1)) as the legal basis for the orders to remedy the matters qualified as deficiencies, the relevant court orders would appear to go well beyond the requirements contained in the Act. Noting in addition that, according to section 4(1), registration may not be refused if the founders have met all requirements prescribed by the Act, the Committee recalls that, to guarantee the right of workers’ organizations to draw up their constitutions and rules in full freedom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities (see Digest, op. cit., para. 371). The Committee also wishes to recall its general principles indicating that, although the registration procedure very often consists in a mere formality, there are a number of countries in which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorization is required; similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude. The Committee considers that these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization. In view of the complainant’s indication that the court orders to amend the constitution have entailed delays and additional financial and logistical demands on the unions concerned, the Committee wishes to reiterate that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations, and that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 (see Digest, op. cit., paras 279 and 296).
16. 780. The Committee therefore expects that all necessary measures will be taken to guarantee respect in practice for the principles of freedom of association set out above, and to ensure that provisions regulating the structure of social organizations in a broader sense are not unduly extended to trade unions and that the procedure for registering trade unions consists in a mere formality, in both law and practice. In particular, the Committee requests the Government to take the necessary steps to ensure that guidance is adopted, including through the review of the rules governing the registration of social organizations in consultation with the social partners concerned, which would ensure a clear and simple understanding of the concrete statutory conditions to be met by the unions for the purposes of registration and of the specific criteria to be applied by courts when deciding whether or not those conditions have been fulfilled. The Committee urges the Government to keep it informed of any developments in this regard.

The Committee's recommendations

1. 781. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In regard to certain matters qualified as deficiencies to be remedied for the purposes of registration, the Committee expects that, in the future, account will be taken of the principles set out in its conclusions relating to the scope of union membership, devolution of trade union assets, determination of union dues, employer’s consent to union establishment, use of headquarters and content requirements for by-laws.
   • (b) The Committee expects that all necessary measures will be taken to guarantee respect in practice for the principles of freedom of association set out in its conclusions, and to ensure that provisions regulating the structure of social organizations in a broader sense are not unduly extended to trade unions and that the procedure for registering trade unions consists in a mere formality, in both law and practice.
   • (c) In particular, the Committee requests the Government to take the necessary steps to ensure that guidance is adopted, including through the review of the rules governing the registration of social organizations in consultation with the social partners concerned, which would ensure a clear and simple understanding of the concrete statutory conditions to be met by the unions for the purposes of registration and of the specific criteria to be applied by courts when deciding whether or not those conditions have been fulfilled. The Committee urges the Government to keep it informed of any developments in this regard.