Compilation of decisions of the Committee on Freedom of Association

Right of workers and employers to establish and join organizations of their own choosing5

Admissible privileges for most representative organizations

1. The Committee has pointed out on several occasions, and particularly during discussion on the draft of the Right to Organize and Collective Bargaining Convention, that the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of most representative organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87.

1. Where it appears from legislation that the only distinction between representative and other trade unions is that the former can sign collective agreements, sit on joint committees and participate in international events, the Committee considers that such privileges granted to representative trade unions are not excessive.

1. The establishment of the notion of representativity presupposes that governments ensure an atmosphere in which trade union organizations are able to freely flourish in the country.

1. To be admissible, the criteria applied to distinguish between more or less representative organizations must be objective, must not leave any scope for abuse and must not be allowed to detract from the fundamental rights and guarantees of the less representative organizations.

1. The determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.

1. Pre-established, precise and objective criteria for the determination of the representativity of workers and employers organizations should exist in the legislation and such a determination should not be left to the discretion of governments.

1. Conventions Nos. 87 and 98 are compatible with systems which envisage union representation for the exercise of collective trade union rights based on the degree of actual union membership, as well as those envisaging union representation on the basis of general ballots of workers or officials, or a combination of both systems.

1. A system under which the apportioning of the number of union stewards for joint organizations is determined by a committee responsible for verifying the trade union membership of the different organizations is compatible with the principles of freedom of association, as long as it offers certain guarantees. Clearly, the protection of data regarding union membership is a fundamental aspect of human rights and, in particular, with regard to the right to privacy; however, inasmuch as the verification of union membership is subject to strict guarantees, there is no reason why it should not be compatible with the observance of such rights or guarantee confidentiality in respect of members identities. It is also important for the bodies responsible for verifying the membership levels of union organizations to enjoy the confidence of all such organizations.

1. The determination to ascertain or verify the representative character of trade unions can best be ensured when strong guarantees of secrecy and impartiality are offered. Thus, verification of the representative character of a union should a priori be carried out by an independent and impartial body.

1. It is unnecessary to draw up a list of trade union members in order to determine the number of members; this will be evident from the record of trade union membership dues, and there is no need for a list of names which could make acts of anti-union discrimination easier.

1. The Committee recalls the risk of reprisals and anti-union discrimination inherent in demands for lists of the names of members of an organization and copies of their membership cards for the determination of the representativity of the organization.

1. The requirement that the authorities make in practice of obtaining a list of the names of all the members of an organization and a copy of their membership card to determine the most representative organization poses a problem with regard to the principles of freedom of association. There is a risk of reprisals and anti-union discrimination inherent in this type of requirement

1. The Committee recalled the position of the Committee of Experts, according to which a considerably larger membership amounting to 10 per cent more members than the union holding most representative status is too high a requirement for obtaining trade union status (privileged status) and is contrary to Convention No. 87. In practice, it stands in the way of trade unions that are merely registered and that wish to claim trade union status.

1. In light of the national conditions, the Committee considered that the legal requirement to have a given national coverage in order to enjoy at a national level the status of most representative agricultural organization and participate in the Agricultural Advisory Committee specifically: (a) running in elections in at least nine of the 17 autonomous communities; or (b) being recognized as most representative in ten autonomous communities - which in practice requires 10 or 15 per cent of the votes, depending on the case was an objective and relatively frequent criterion in comparative law aimed at ensuring that the strongest and largest organizations are those which are integrated into the state advisory bodies.

1. Pursuant to case law which establishes that, where disaffiliation of a trade union of a confederation, whether chosen or imposed, occurs after occupational elections, the trade union may no longer use the results obtained as a basis for claiming to be representative, the Committee considers that, inasmuch as the Court considered that the question of affiliation to a confederation constituted a key factor in the choice made by workers at the time of elections, the resulting loss of representativeness is indeed justified.

1. Recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations.

1. The Committee has considered that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness. But it has taken the view that the intervention of the public authorities as regards such advantages should not be of such a nature as to influence unduly the choice of the workers in respect of the organization to which they wish to belong.

1. The fact of establishing in the legislation a percentage in order to determine the threshold for the representativeness of organizations and grant certain privileges to the most representative organizations (in particular for collective bargaining purposes) does not raise any difficulty provided that the criteria are objective, precise and pre-established, in order to avoid any possibility of bias or abuse.

1. The Committee has considered, with regard to legislation establishing a system for determining representivity, that granting the right to sit on the Economic and Social Council only to those trade union organizations deemed to be the most representative would not appear to influence workers unduly in the choice of organization that they wish to join, nor to prevent less representative organizations from defending the interests of their members, organizing their activities and formulating their programmes.

1. The Committee has considered that a registration system set up by law which grants exclusive negotiation rights to registered unions would not be incompatible with the principles of freedom of association provided that the registration is based on objective and predetermined criteria. However, the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited.

1. Minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim.