Compilation of decisions of the Committee on Freedom of Association

Right of organizations to draw up their constitutions and rules6

Legislation on the subject and interference by the authorities

1. In accordance with Convention No. 87, trade unions should have the right to include in their statutes the peaceful objectives that they consider necessary for the defence of the rights and interests of their members.

1. Limits may be placed on the right of organizations to draw up their constitutions where the manner in which it is expressed may imminently jeopardize national security or the democratic order.

1. Legislative provisions which regulate in detail the internal functioning of workers and employers organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. Restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body so as to avoid any risk of excessive or arbitrary interference in the free functioning of organizations.

1. In the Committees opinion, the mere existence of legislation concerning trade unions in itself does not constitute a violation of trade union rights, since the State may legitimately take measures to ensure that the constitutions and rules of trade unions are drawn up in accordance with the law. On the other hand, any legislation adopted in this area should not undermine the rights of workers as defined by the principles of freedom of association. Overly detailed or restrictive legal provisions in this area may in practice hinder the creation and development of trade union organizations.

1. 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.

1. Requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws. In fact, any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3, paragraph 2, of the Convention.

1. A provision that union rules shall comply with national statutory requirements is not in violation of the principle that workers organizations shall have the right to draw up their constitutions and rules in full freedom, provided that such statutory requirements in themselves do not infringe the principle of freedom of association and provided that approval of the rules by the competent authority is not within the discretionary powers of such authorities.

1. The drafting by the public authorities themselves of the constitutions of central workers organizations constitutes a violation of the principles of freedom of association.

1. Where the approval of trade union rules is within the discretionary powers of a competent authority, this is not compatible with the generally accepted principle that workers organizations shall have the right to draw up their constitutions and rules in full freedom.

1. The existence of a right to appeal to the courts in connection with the approval of by-laws does not in itself constitute a sufficient guarantee. This would not change the nature of the powers conferred on the administrative authorities and the courts would only be able to ensure that the legislation had been correctly applied. The courts should, therefore, be entitled to re-examine the substance of the case, as well as the grounds on which an administrative decision is based.

1. A legal provision which authorizes the government in certain circumstances to object to the setting up of a trade union within a period of three months from the date of registration of its by-laws is in contradiction with the basic principle that employers and workers should have the right to establish organizations of their own choosing without previous authorization.

1. The existence of legislation which is designed to promote democratic principles within trade union organizations is acceptable. Secret and direct voting is certainly a democratic process and cannot be criticized as such.

1. The listing in the legislation of the particulars that must be contained in a unions constitution is not in itself an infringement of the right of workers organizations to draw up their internal rules in full freedom.

1. A mandatory list of functions and aims that associations must have that is excessively extensive and detailed may in practice hinder the establishment and development of organizations.

1. Amendments to the constitution of a trade union should be debated and adopted by the union members themselves.

1. In some countries the law requires that the majority of the members of a trade union at least at a first vote decide on certain questions which affect the very existence or structure of the organization (changes of Constitution or objects, winding-up, seeking of voluntary registration, etc.). In such cases involving basic matters relating to the existence and structure of a union or the fundamental rights of its members, the regulation by law of majority votes for the adoption of the decisions involved does not imply interference contrary to the Convention, provided that this regulation is not such as to seriously impede the running of a trade union, thereby making it practically impossible to adopt the required decisions in the prevailing circumstances, and provided that the purpose is to guarantee the members right to participate democratically in the organization.

1. The insertion in the constitution of a trade union, on the decision of the public authorities, of a clause whereby the trade union must forward annually to the ministry a series of documents namely a copy of the minutes of the last general assembly indicating precisely the names of the members present, a copy of the general secretarys report, as approved by the assembly, a copy of the treasurers report, etc. and where failure to do so within a prescribed period will result in the union being considered as having ceased to exist is inconsistent with the right to draw up their Constitutions and rules and to organize their administration and activities free from interference of the public authorities.

1. While the imposition of provisions on the expulsion of members or termination of membership to an organization 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.

1. The requirement for public employees associations to have a five-year plan and, indirectly, a minimum duration of five years, is in contradiction with the right of workers organizations to draw up their constitutions in full freedom, as established in Article 3 of Convention No. 87.

1. The Committee had serious concerns that references in a unions by-laws to the right to education in a mother tongue had given and could give rise to the call for dissolution of the trade union.