Compilation of decisions of the Committee on Freedom of Association

Right of workers and employers to establish organizations without previous authorization4

Requirement of previous authorization

1. The principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union organization itself, the need to obtain discretionary approval of the constitution or rules of the organization, or, again, authorization for taking steps prior to the establishment of the organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition. Even in cases where registration is optional but where such registration confers on the organization the basic rights enabling it to further and defend the interests of its members, the fact that the authority competent to effect registration has discretionary power to refuse this formality is not very different from cases in which previous authorization is required.

1. It is contrary to Convention No. 87 to make the granting of legal personality to a trade union subject to the approval of the President of the Republic.

1. A law providing that the right of association is subject to authorization granted by a government department purely in its discretion is incompatible with the principle of freedom of association.

1. The absence of recourse to a judicial authority against any refusal by the Ministry to grant an authorization to establish a trade union violates the principles of freedom of association.

Legal formalities for the establishment of organizations

1. In its report to the 1948 International Labour Conference, the Committee on Freedom of Association and Industrial Relations declared that the States would remain free to provide such formalities in their legislation as appeared appropriate to ensure the normal functioning of occupational organizations. Consequently, the formalities prescribed by national regulations concerning the constitution and functioning of workers and employers organizations are compatible with the provisions of that Convention provided, of course, that the provisions in such regulations do not impair the guarantees laid down in Convention No. 87.

1. 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.

1. A provision stating that workers will not be allowed to establish workers associations until the expiry of a period of three months following the commencement of commercial production in the concerned unit is contrary to Article 2 of Convention No. 87 and should be amended to ensure that the workers in question may establish workers associations from the beginning of their contractual relationship.

1. The Committee considered that if there is grave suspicion that trade union leaders have committed acts which are punishable by law, they should be subject to normal legal proceedings in order to determine the extent of their liability, and that arrest should not in itself constitute an obstacle to the granting of legal personality to the organization concerned.

Requirements for the establishment of organizations

1. 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. Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87.

1. If the body responsible for granting legal recognition of organizations considers that there are irregularities in the documentation submitted, an opportunity should be provided to those organizations so that the irregularities may be rectified.

1. National legislation providing that an organization must deposit its rules is compatible with Article 2 of Convention No. 87 if it is merely a formality to ensure that those rules are made public. However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association.

1. Obliging trade union organizations to meet the costs of publishing their statutes in the Official Journal when this involves large amounts of money seriously impedes the free exercise of the right of the workers to establish organizations without previous authorization, thus violating Article 2 of Convention No. 87.

1. Employers occupational associations should not be restricted by excessively detailed provisions which discourage their establishment, contrary to Article 2 of Convention No. 87, which provides that employers, as well as workers, shall have the right to establish organizations of their own choosing without previous authorization.

1. The requirement that a trade union shall have a registered office is a normal requirement in a large number of countries.

1. Although the requirement for simple formalities for the formation of trade union organizations is compatible with Convention No. 87, it is contrary to Convention No. 87 to demand information from the founders of an organization such as their telephone number, marital status or home address (this indirectly excludes from membership workers with no fixed abode or those who cannot afford to pay for a telephone).

1. The list of members of a trade union given for registration purposes should be kept confidential in order to prevent acts of trade union discrimination.

Minimum number of members

1. The legally required minimum number of members must not be so high as to hinder in practice the establishment of trade union organizations.

1. A minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations must be reduced in consultation with the workers and employers organizations.

1. The establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 50 founder members.

1. The requirement of 50 public servants for the establishment of a trade union association is excessive.

1. Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, this minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.

1. The legal requirement laid down in the Labour Code for a minimum of 30 workers to establish a trade union should be reduced in order not to hinder the establishment of trade unions at enterprises, especially taking into account the very significant proportion of small enterprises in the country.

1. While a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed.

1. A minimum membership requirement of 30 per cent of the workers concerned to establish an organization is too high.

1. Provisions which impose a membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments concerned for a union to be registered and which permit dissolution if membership falls below that level are not in conformity with Article 2 of Convention No. 87.

1. A provision imposing a minimum membership of 50 per cent to form a workers organization would not be in line with Convention No. 87.

1. The introduction into federal legislation of a minimum membership requirement of 10,000 members for the registration of trade unions at the federal level could influence unduly the workers free choice of union to which they wish to belong, even when federal registration is only one of the alternatives available for protecting their rights.

1. The legal requirement that there be a minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union.

1. The Committee considered - in regard to a provision which stipulates that "ten or more employers engaged in the same industry or activity, or similar or related industries of activities may form an employers' organization"- that a minimum number of ten is extremely high and violates the employers' right to form organizations of their own choosing.

Registration of organizations

1. If the conditions for the granting of registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention.

1. The right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers or employers organizations must take in order to be able to function efficiently, and represent their members adequately.

1. 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; 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.

1. The administrative authorities should not be able to refuse registration of an organization simply because they consider that the organization could exceed normal union activities or that it might not be able to exercise its functions. Such a system would be tantamount to subjecting the compulsory registration of trade unions to the previous authorization of the administrative authorities.

1. A provision whereby registration of a trade union may be refused if the union is about to engage in activities likely to cause a serious threat to public safety or public order could give rise to abuse, and it should therefore be applied with the greatest caution. The refusal to register should only take place under the supervision of the competent judicial authorities where serious acts have been committed, and have been duly proven.

1. A request to the Ministry of Education, who is the employer in this case, concerning the appropriateness of registering an association of teachers is contrary to the right of workers to form and join organizations of their own choosing without previous authorization.

1. The obligation for trade unions to obtain the consent of a central trade union organization in order to be registered must be removed.

1. The Committee, while recognizing that there might be applicable national legislation relating to the transfer of an organizations assets when it ceases to exist, has considered 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.

1. An appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration.

1. A decision to prohibit the registration of a trade union which has received legal recognition should not become effective until the statutory period of lodging an appeal against this decision has expired without an appeal having been lodged, or until it has been confirmed by the courts following an appeal.

1. Where a registrar has to form his or her own judgement as to whether the conditions for the registration of a trade union have been fulfilled, although an appeal lies against the registrars decisions to the courts, the Committee has considered that the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal would only be able to ensure that the legislation has been correctly applied. The Committee has drawn attention to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not.

1. Where the difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers create situations where competent authorities make excessive use of their powers, problems of compatibility with Convention No. 87 may arise.

1. Judges should be able to deal with the substance of a case concerning a refusal to register so that they can determine whether the provisions on which the administrative measures in question are based constitute a violation of the rights accorded to occupational organizations by Convention No. 87.

1. Normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities; and the fact that an organization which seeks to enjoy the status of an occupational organization might in certain cases engage in activities unconnected with trade union activities would not appear to constitute a sufficient reason for subjecting trade union organizations a priori to control with respect to their composition and with respect to the composition of their management committees. The refusal to register a union because the authorities, in advance and in their own judgement, consider that this would be politically undesirable, would be tantamount to submitting the compulsory registration of trade unions to previous authorization on the part of the authorities, which is not compatible with the principles of freedom of association.

1. In a legal system where registration of a workers organization is optional, the act of registration may confer on an organization a number of important advantages such as special immunities, tax exemption, the right to obtain recognition as exclusive bargaining agent, etc. In order to obtain such recognition, an organization may be required to fulfil certain formalities which do not amount to previous authorization and which do not normally pose any problem as regards the requirements of Convention No. 87.

1. A long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization.

1. In one case, the Committee could not rule out the possibility that the delay in the registration procedure may have had a negative impact on the unions ability to fulfil the minimum membership requirement and consequently become registered and obtain trade union immunity for its executive committee.

1. A period of one month envisaged by the legislation to register an organization is reasonable.

1. In case of a period of more than three months, the Committee expressed regret that there was a delay in registering the union despite the fact that there were no apparent obstacles justifying the delay.

1. A one-year period for treating a unions application for registration is excessive and not conducive to harmonious industrial relations.

1. In a case where the Committee noted an excessive delay with which the Ministry issues decisions regarding applications for registration by organizations and expressed concern at the complexity of the Ministrys internal proceedings in that regard, the Committee urged the government to expedite considerably its internal registration procedures and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered.

1. The requirement of a notarial certificate to establish a trade union organization should not lead to delays in the registration of trade unions, especially given that the law requires the submission of a certified copy, which could not only take the form of a notarial certificate, but could also be through certification by the legal authority or an administrative authority. Moreover, the notarys refusal to issue a notarial certificate containing the by-laws of the trade union organization constitutes an infringement of the right of workers to establish or join the organization of their own choosing.

1. Issues involving complex legal appraisals in certain cases, such as determining whether or not the unions founders occupy positions of trust, should not delay the registration process.

1. Determining whether or not the unions founders occupy positions of trust, which may involve a complex legal appraisal, should not delay the registration procedure for the trade union concerned since this could be considered after registration in the event of any objections, especially where there are allegations of interference by the employer in the process of establishing the trade union.