Compilation of decisions of the Committee on Freedom of Association

Right of organizations to elect their representatives in full freedom7

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.