Compilation of decisions of the Committee on Freedom of Association

Right of organizations to elect their representatives in full freedom7

General principles

1. Freedom of association implies the right of workers and employers to elect their representatives in full freedom.

1. Workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf.

1. In accordance with Article 3 of Convention No. 87, workers have the right to elect their representatives in full freedom.

1. It is the prerogative of workers and employers organizations to determine the conditions for electing their leaders and the authorities should refrain from any undue interference in the exercise of the right of workers and employers organizations freely to elect their representatives, which is guaranteed by Convention No. 87.

1. The right of workers organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves.

1. The public authorities should refrain from any interference which might restrict the exercise of the right of workers organizations to elect their own representatives freely, whether as regards the holding of trade union elections, eligibility conditions or the re-election or removal of representatives.

Electoral procedures

1. The organization of trade union elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87

1. The regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions rules themselves. The fundamental idea of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein.

1. In a system of labour relations that includes a union branch representative intended to permit unions that are not representative to establish themselves and operate in enterprises and establishments with an eye to the next occupational elections, the Committee considers that such measures may contribute to the development of collective bargaining. However, the choice of union branch representative should respect the principles of autonomy vis-à-vis the public authorities as laid down in Article 3 of Convention No. 87. Pursuant to Article 3 of Convention No. 87, the appointment and duration of the mandate of a union branch representative should be freely determined by the union concerned, in accordance with its constitution. It is for the union to decide on the person who is best equipped to represent it within the enterprise and to defend its members in their individual claims.

1. An excessively meticulous and detailed regulation of the trade union electoral process is an infringement of the right of such organizations to elect their representatives in full freedom, as established in Article 3 of Convention No. 87.

1. Legislation which minutely regulates the internal election procedures of a trade union and the composition of its executive committees, fixes the days on which meetings will take place, the precise date for the annual general assembly and the date on which the mandates of trade union officers shall expire, is incompatible with the rights afforded to trade unions by Convention No. 87.

1. A provision which gives a broad discretionary power to the minister to regulate minutely the internal election procedures of trade unions, the composition and the date of elections of their various committees, and even the way in which they should function, is incompatible with the principles of freedom of association.

1. The Committee recalled that excessively close government regulation of union elections may be regarded as a limitation of the right of trade unions to elect their own representatives freely, although in general terms, legislation governing the frequency of elections and fixing the maximum period for the terms of office of the executive bodies does not affect the principles of freedom of association.

1. It should be left to the unions themselves to set the period of terms of office.

1. The imposition by legislative means of a direct, secret and universal vote for the election of trade union leaders does not raise any problems regarding the principles of freedom of association.

1. No violation of the principles of freedom of association is involved where the legislation contains certain rules intended to promote democratic principles within trade union organizations or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members in order to avoid any dispute as to the election results.

1. Provisions requiring registered organizations to elect their officers by postal vote do not appear to infringe the freedom to elect trade union leaders.

1. It should be left to the workers organizations themselves to make provision, in their constitutions or rules, as to the majority of votes required for the election of trade union leaders.

1. The number of leaders of an organization should be a matter for decision by the trade union organizations themselves.

1. The registration of the executive boards of trade union organizations should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question.

1. Since the creation of works councils can constitute a preliminary step towards the setting up of independent and freely established workers organizations, all official positions in such councils should, without exception, be occupied by persons who are freely elected by the workers concerned.

Eligibility conditions

1. The determination of conditions of eligibility for membership or office is a matter that should be left to the discretion of union/employer organization by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right.

1. The Committee recognizes the need for an employers organization to ensure its credibility and its independence vis-à-vis the national authorities, with which it has negotiated, by avoiding any conflict of interest in its executive body, in particular between certain functions in the management board and those exercised by a public servant. While noting the authorities view that there is no incompatibility or prohibition as the legislation stands preventing a traditional chief from exercising responsibility, electoral or otherwise, in an employers or workers organization, the Committee is of the opinion that, if an organization considers that a public office or duty is incompatible with a position in its own leadership, elected or otherwise, it has full scope to incorporate this matter in its constitution, in accordance with the right of professional organizations to draw up their constitutions and rules in full freedom without interference from the authorities, particularly as regards election procedures.

Racial discrimination

1. Legislative provisions which reserve to Europeans the right to be members of the executive committees of mixed trade unions (made up of workers of different races), are incompatible with the principle that workers and employers organizations shall have the right to elect their representatives in full freedom.

Employment in the occupation or enterprise

1. The requirement of membership of an occupation or establishment as a condition of eligibility for union office are not consistent with the right of workers to elect their representatives in full freedom.

1. If the national legislation provides that all trade union leaders must belong to the occupation in which the organization functions, there is a danger that the guarantees provided for in Convention No. 87 may be jeopardized. The Committee wishes to recall that, given that workers organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that a trade union leader leaves the work that he or she was carrying out in a given undertaking, should not affect his or her trade union status or functions unless stipulated otherwise by the Constitution of the trade union in question. In fact, in such cases, the laying off of a worker who is a trade union official can, as well as making him forfeit his position as a trade union official, affect the freedom of action of the organization and its right to elect its representatives in full freedom, and even encourage acts of interference by employers.

1. For the purpose of bringing legislation which restricts union office to persons actually employed in the occupation or establishment concerned into conformity with the principle of the free election of representatives, it is necessary at least to make these provisions more flexible by admitting as candidates persons who have previously been employed in the occupation concerned and by exempting from the occupational requirement a reasonable proportion of the officers of an organization.

1. Provisions which require that all trade union leaders shall, at the time of their election, have been engaged in the occupation or trade for more than one year are not in harmony with Convention No. 87.

1. Given that workers organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that a trade union leader leaves the work that he or she was carrying out in a given undertaking, should not affect his or her trade union status or functions unless stipulated otherwise by the constitution of the trade union in question.

1. A requirement that trade union leaders shall continue to carry out their employment during their term of office prevents the existence of full-time officers. Such a provision may be highly detrimental to the interests of trade unions, in particular those whose size or geographical extent require the contribution of a considerable amount of time by the officers. Such a provision impedes the free functioning of trade unions and is not in conformity with the requirements of Article 3 of Convention No. 87.

Minimum age

1. The Committee asked a government to amend a legal provision according to which trade union office bearers be at least 25 years old, which limits the right of workers to elect their own representatives in full freedom.

Duration of membership of the organization

1. A provision laying down as one of the eligibility requirements for trade union office that the candidate must have belonged to the organization for at least one year could be interpreted as meaning that all trade union leaders must belong to the occupation or work in the undertaking in which the trade union represents the workers. In this event, if the requirement were applied to all office-holders in trade union organizations, it would be incompatible with the principles of freedom of association.

1. A provision requiring any trade union leader to have been a member of the trade union for not less than six months implies an important restriction on the right of workers organizations to elect their representatives in full freedom.

Political opinions or activities

1. Legislation which disqualifies persons from trade union office because of their political beliefs or affiliations is not in conformity with the right of trade unionists to elect their representatives in full freedom.

1. Where a body representing the workers in a dispute is elected by those workers, the right to elect their representatives in full freedom is restricted if some only of those representatives, on the basis of their political opinions, are considered by a government to be capable of participating in conciliation proceedings. Where the law of the land provides that the government may only deal with those who appear to be the representatives of the workers of an undertaking and, in effect, choose those with whom it will deal, any selection based on the political opinions of those concerned in such a way as to eliminate from negotiations, even indirectly, the leaders of the organization that is the most representative of the category of workers concerned would appear to result in the law of the land being so applied as to impair the right of the workers to choose their representatives freely.

1. Legislation which debars from trade union office for a period of ten years any person taking part in political activities of a Communist character and which lists a number of legal presumptions whereby any person can be held to be responsible for such activities, may involve a violation of the principle laid down in Convention No. 87, which states that workers and employers organizations shall have the right to elect their representatives in full freedom, to organize their administration and activities and that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

1. The Committee has taken the view that a law is contrary to the principles of freedom of association when a trade unionist can be barred from union office and membership because, in the view of the minister, his or her activities might further the interests of Communism.

Moral standing of candidates for office

1. A legal requirement that candidates for trade union office must be subjected to a background investigation conducted by the ministry of the interior and the department of justice amounts to prior approval by the authorities of candidates, which is incompatible with Convention No. 87.

Nationality

1. Legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country.

1. In a case concerning a country where union members who are not nationals of the country do not have the right to vote, nominate candidates or attend general assemblies but only to select a representative to express their point of view to the board, the Committee reiterated that freedom of association should be guaranteed without discrimination of any kind based on nationality and that such restriction on the right to organize prevents migrant workers from playing an active role in the defence of their interests, especially in sectors where they are the main source of labour.

Criminal record

1. A law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to the aptitude and integrity required to exercise trade union office.

1. Conviction on account of offences the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association.

1. The loss of fundamental rights, such as the ban on standing for election to any trade union office and any political or public office, could be justified only with reference to criminal charges unconnected with trade union activities, and are serious enough to impugn the personal integrity of the individual concerned.

1. As regards legislation which provides that a sentence by any court whatsoever, except for political offences, to a term of imprisonment of one month or more, constitutes grounds that are incompatible with, or which disqualify from the holding of executive or administrative posts in a trade union, the Committee has taken the view that such a general provision could be interpreted in such a way as to exclude from responsible trade union posts any individuals convicted for activities involving the exercise of trade union rights, such as a violation of the laws governing the press, thereby restricting unduly the right of trade unionists to elect their representatives in full freedom.

1. Ineligibility for trade union office based on any crime involving fraud, dishonesty or extortion could run counter to the right to elect representatives in full freedom since dishonesty could cover a wide range of conduct not necessarily making it inappropriate for persons convicted of this crime to hold positions of trust such as trade union office.

Re-election

1. A ban on the re-election of trade union officials is not compatible with Convention No. 87. Such a ban, moreover, may have serious repercussions on the normal development of a trade union movement which does not have a sufficient number of persons capable of adequately carrying out the functions of trade union office.

1. Legislation which fixes the maximum length of the terms of trade union officers and which at the same time limits their right of re-election violates the right of organizations to elect their representatives in full freedom.

Obligation to participate in ballots

1. The obligation for the organizations members to vote should be left to the unions rules and not imposed by law.

1. A law which imposes fines on workers who do not participate in trade union elections is not in conformity with the provisions of Convention No. 87.

Intervention by the authorities in trade union and employers organizations elections

1. Any intervention by the public authorities in trade union or employers organizations elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of these organizations, which is incompatible with Convention No. 87, Article 3, which recognizes their right to elect their representatives in full freedom.

1. The right of workers and employers to elect their representatives in full freedom should be exercised in accordance with the statutes of their occupational associations and should not be subject to the convening of elections by ministerial resolution.

1. A regulation which provides for the election of members of a preparatory committee for preparing permanent elections to the executive committee of a trade union, a federation, an association or an occupational organization is inconsistent with the principles of freedom of association, and constitutes a clear interference in the election process.

1. With regard to an internal dispute within the trade union organization between two rival administrations, the Committee considered that, with a view to guaranteeing the impartiality and objectivity of the procedure, the supervision of trade union elections should be entrusted to the competent judicial authorities or other independent persons.

1. Any interference by the authorities and the political party in power concerning the presidency of the central trade union organization in a country is incompatible with the principle that organizations shall have the right to elect their representatives in full freedom.

1. The nomination by the authorities of members of executive committees of trade unions constitutes direct interference in the internal affairs of trade unions and is incompatible with Convention No. 87.

1. When the authorities intervene during the election proceedings of a union, expressing their opinion of the candidates and the consequences of the election, this seriously challenges the principle that trade union organizations have the right to elect their representatives in full freedom.

1. The participation of high-ranking officials of the public administration in trade union elections or in positions of trade union leadership can undermine the independence of the trade union organizations in question.

1. Remarks by a public employer questioning the integrity of trade union leaders through sweeping statements concerning failure to show respect for laws and regulations is not at all conducive to the development of harmonious labour relations and infringes the right to elect trade union leaders in full freedom.

1. Legislation which requires candidates for trade union office to have obtained the approval of the Provincial Governor, which is given on the basis of a report from the police, is incompatible with the principle that employers and workers organizations should have the right to elect their representatives in full freedom.

1. The following provisions are incompatible with the right to hold free elections, namely those which involve interference by the public authorities in various stages of the electoral process, beginning with the obligation to submit the candidates names in advance to the ministry of labour, together with personal particulars, the presence of a representative of the ministry of labour or the civil or military authorities at the elections, including the approval of the election of the executive committee by ministerial decision, without which they are invalid.

1. Provisions which involve interference by the public authorities in various stages of the electoral process are incompatible with the right to hold free elections.

1. The presence during trade union elections of the authorities is liable to infringe freedom of association and, in particular, to be incompatible with the principle that workers and employers organizations shall have the right to elect their representatives in full freedom, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.

1. The Committee has observed that, in a number of countries, legal provisions exist whereby an official who is independent of the public authorities such as a trade union registrar may take action, subject to an appeal to the courts, if a complaint is made or if there are reasonable grounds for supposing that irregularities have taken place in a trade union election, contrary to the law or the constitution of the organization concerned. The situation, however, is different when the elections can be valid only after being approved by the administrative authorities. The Committee has considered that the requirement of approval by the authorities of the results of trade union elections is not compatible with the principle of freedom of election.

Challenges to trade union and employers organizations elections

1. Measures taken by the administrative authorities when election results are challenged run the risk of being arbitrary. Hence, and in order to ensure an impartial and objective procedure, matters of this kind should be examined by the judicial authorities.

1. Power to suspend or cancel elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence and due process.

1. In order to avoid the danger of serious limitation on the right of workers to elect their representatives in full freedom, complaints brought before labour courts by an administrative authority challenging the results of trade union elections should not pending the final outcome of the judicial proceedings have the effect of suspending the validity of such elections.

1. In cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial, objective and expeditious procedure.

1. In order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases brought before the courts by the administrative authorities involving a challenge to the results of trade union elections should not pending the final outcome of the proceedings have the effect of paralysing the operations of trade unions.

1. The presence of international observers in a disputed voting procedure is not contrary to the principles of freedom of association.

Removal of executive committees

Removal of executive committees and the placing of the organization under control

1. The removal by the Government of trade union leaders from office is a serious infringement of the free exercise of trade union rights.

1. Legislation pursuant to which the duties of trade union officers would be terminated where changes occurred in branch classifications constitutes not only a violation of the right of public employees to join the trade union of their own choice, but also serious interference in trade union activities, including the right of trade unions to elect their own representatives and organize their administration, in violation of Articles 2 and 3 of Convention No. 87.

1. The appointment by the government of persons to administer the central national trade union on the ground that such a measure was rendered necessary by the corrupt administration of the unions would seem to be incompatible with freedom of association in a normal period.

1. In a case where an administrator of trade union affairs had been appointed by the government so as to ensure, on behalf of the trade unions, the functions normally carried out by a central workers organization, the Committee considered that any reorganization of the trade union movement should be left to the trade union organizations themselves and that the administrator should confine himself to coordinating the efforts made by the unions to bring this about. The prerogatives conferred on the administrator should not be such as to restrict the rights guaranteed by Article 3, paragraph 1, of Convention No. 87.

1. Legislation which confers on the public authorities the power to remove the management committee of a union whenever, in their discretion, they consider that they have serious and justified reasons, and which empowers the government to appoint executive committees to replace the elected committees of trade unions, is not compatible with the principle of freedom of association.

1. Where trade union leaders were removed from office, not by decision of the members of the trade unions concerned but by the administrative authority, and not because of infringement of specific provisions of the trade union constitution or of the law, but because the administrative authorities considered these trade union leaders incapable of maintaining discipline in their unions, the Committee was of the view that such measures were obviously incompatible with the principle that trade union organizations have the right to elect their representatives in full freedom and to organize their administration and activities.

1. The setting up by the government, following a change of regime, of a provisional consultative committee of a trade union confederation and the refusal to recognize the executive committee which has been elected at the congress of that organization constitutes a breach of the principle that the public authorities should refrain from any interference which would restrict the right of workers organizations to elect their representatives in full freedom and to organize their administration and activities.

1. With regard to the placing of certain unions under control, the Committee has drawn attention to the importance which it attaches to the principle that the public authorities should refrain from any interference which would restrict the right of workers organizations to elect their representatives in full freedom and to organize their administration and activities.

1. The placing of trade union organizations under control involves a serious danger of restricting the rights of workers organizations to elect their representatives in full freedom and to organize their administration and activities.

1. While recognizing that certain events were of an exceptional kind and may have warranted intervention by the authorities, the Committee considered that, in order to be admissible, the taking over of a trade union must be temporary and aimed solely at permitting the organization of free elections.

1. The measures taken by an administrative body, such as the assumption of placing organizations under control, risk appearing arbitrary, even if they are of provisional character and are followed by judicial action.

1. The power conferred on a person with a view to facilitating the normal functioning of a trade union organization should not be such as to lead to limitations on the right of trade union organizations to draw up their constitutions, elect their representatives, organize their administration and formulate their programmes.