Compilation of decisions of the Committee on Freedom of Association

Right of organizations to organize their administration8

General principles

1. Freedom of association implies the right of workers and employers to elect their representatives in full freedom and to organize their administration and activities without any interference by the public authorities.

1. 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. The Committee urged a government to observe the right of the union to administer its own affairs and activities without let or hindrance and in line with the principles of freedom of association and democracy and ensure that the elected leaders of the union are free to exercise the mandate given to them by their members and to that extent enjoy the recognition of Government as a social partner.

Internal administration of organizations

1. In view of the fact that in every democratic trade union movement the congress of members is the supreme trade union authority which determines the regulations governing the administration and activities of trade unions and which establishes their programme, the prohibition of such congresses would seem to constitute an infringement of trade union rights.

1. When legislation is applied in such a manner as to prevent trade union organizations from using the services of experts who are not necessarily elected officers, such as industrial advisers, lawyers or agents able to represent them in judicial or administrative proceedings, there would be serious doubt as to the compatibility of such provisions with Article 3 of Convention No. 87, according to which workers organizations shall have the right, inter alia, to organize their administration and activities.

1. A provision prohibiting a trade union leader from receiving remuneration of any kind is not in conformity with the requirements of Article 3 of Convention No. 87.

1. With regard to legislation which had just been adopted prohibiting the payment of the wages of full-time union officials by employers, the Committee considered that abandoning such a widespread, longstanding practice may lead to financial difficulties for unions and entail the risk of considerably hindering their functioning.

1. Freedom of association implies the right of workers and employers organizations to resolve any disputes by themselves and without interference by the authorities; it is for the government to create an atmosphere conducive to the resolution of such disputes.

Control over the internal activities of organizations

1. Legislation which accords to the Minister discretionary authority, which is not subject to judicial control, to investigate a unions affairs merely if he or she considers it necessary in the public interest and to order the cancellation of the registration of a trade union is not in conformity with the principles that workers and employers organizations should have the right to organize their administration and activities without any interference on the part of the public authorities which would restrict this right or impede its lawful exercise, and that such organizations should not be liable to be dissolved by the administrative authority.

1. Events of an exceptional nature may warrant direct intervention by a government in internal trade union matters in order to re-establish a situation in which trade union rights are fully respected.

1. The Committee recalls that in accordance with Article 3 of Convention No. 87 the Government is required to refrain from any interference which would restrict the right of workers and employers organisations to elect their representatives in full freedom, to organise their activities and to formulate their programmes. The Committee considers that the only limitation that might possibly be acceptable should consequently aim solely at ensuring respect for democratic rules within the trade union movement and in particular at the level of federation. The limitation to one-tenth of the total number of votes imposed by the law on occupational associations when they vote in the general assemblies and congresses of federations goes beyond a simple guarantee of democratic procedure.

1. The Committee recalls that when measures of suspension are adopted by the administrative authority there is a risk that they may appear arbitrary also when they are provisional and temporary and even when they are followed by judicial action. The Committee considers that the principles established in Article 3 of Convention No. 87 do not prevent supervision of control of the internal acts of a trade union if those internal acts do violate legal provisions or rules. Nevertheless, the Committee considers that it is of maximum importance that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority.

1. There should be outside control only in exceptional cases, when there are serious circumstances justifying such action, since otherwise there would be a risk of limiting the right that workers organizations have, by virtue of Article 3 of Convention No. 87, to organize their administration and activities without interference by the public authorities which would restrict this right or impede its lawful exercise. The Committee has considered that a law which confers the power to intervene on an official of the judiciary, against whose decisions an appeal may be made to the Supreme Court, and which lays down that a request for intervention must be supported by a substantial number of those in the occupational category in question, does not violate these principles.

1. In a case where the decisions of a unions general assembly had been rendered null and void at the request of 12 of a total of 2,100 members, the Committee considered that this did not constitute a substantial number of those in the occupational category in question such as to permit the administrative authority to restrict the activities of a trade union and disturb its normal functioning, especially where such administrative action was taken without clear evidence or proof, as referred to by the ruling of the judicial authority.

Financial administration of organizations

Financial independence in respect of the public authorities

1. The right of workers to establish organizations of their own choosing and the right of such organizations to draw up their own constitutions and internal rules and to organize their administration and activities presuppose financial independence. Such independence implies that workers organizations should not be financed in such a way as to allow the public authorities to enjoy discretionary powers over them.

1. With regard to systems of financing the trade union movement which made trade unions financially dependent on a public body, the Committee considered that any form of state control is incompatible with the principles of freedom of association and should be abolished since it permitted interference by the authorities in the financial management of trade unions.

1. Provisions governing the financial operations of workers organizations should not be such as to give the public authorities discretionary powers over them.

1. Provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with principles of freedom of association.

1. A system in which workers are bound to pay contributions to a public organization which, in turn, finances trade union organizations, constitutes a serious threat to the independence of these organizations.

1. While trade union training is to be encouraged, it should be provided by the unions themselves; the unions can, of course, take advantage of any material or moral assistance which the government may offer to them.

1. Various systems of subsidizing workers organizations have very different consequences according to the form which they assume, the spirit in which they are conceived and applied and the extent to which the subsidies are granted as a matter of right, by virtue of statutory provisions, or at the discretion of a public authority. The repercussions which financial aid may have on the autonomy of trade union organizations will depend essentially on circumstances; they cannot be assessed by applying general principles: they are questions of fact which must be examined in the light of the circumstances of each case.

Union dues

1. Questions concerning the financing of trade union and employers organizations, as regards both their own budgets and those of federations and confederations, should be governed by the by-laws of the organizations, federations and confederations themselves, and therefore, constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association.

1. The Committee expressed concern at a courts objection to the determination of the membership fee as a wage percentage and considered that this matter should be left to the union by-laws, including the expression of union dues in the form of a wage percentage.

1. The repartition of trade union dues among various trade union structures is a matter to be determined solely by the trade unions concerned.

1. The withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided.

1. Both legislation which imposes accreditation or proof of affiliation of members of the trade union for their union dues to be deducted from their wages, and legislation which stipulates that it suffices for a union to submit a list of members for the union dues to be deducted, are compatible with Conventions Nos. 87 and 135.

1. The requirement that workers confirm their trade union membership in writing in order to have their union dues deducted from their wages does not violate the principles of freedom of association.

1. The requirement of written consent for dues check-off would not be contrary to the principles of freedom of association.

1. The non-collection of union dues by the enterprise from non-unionized workers who have expressly indicated their wish not to pay those dues is compatible with the principles of freedom of association.

1. Workers should have the possibility of opting for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative.

1. The Committee has requested a Government to take the necessary steps to amend the legislation so that workers can opt for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative.

1. Information relating to the affiliation of workers to a trade union should be confidential, except of course in cases where trade union dues are deducted on payroll.

1. In a case in which the requirements for the deduction of trade union dues from wages included the provision of the workers identity document and her/his membership card, a list of members, an affidavit by the General-Secretary of the union stating the veracity of the list of members and the posting of the list on the employers website, the Committee considered that all these requirements combined to violate the principles of freedom of association and emphasizes that, for the deduction of trade union dues from wages, the enterprise should confine itself to requesting evidence of members affiliation and disaffiliation. Furthermore, the annual publication of the list of trade union members on the employers website is particularly unacceptable as it has nothing to do with the deduction of trade union dues and violates the privacy of union members.

1. In a case in which the authorities had not transferred to the trade union concerned the dues that had been deducted from the wages of public officials, the Committee considered that trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay.

1. When legislation admits trade union security clauses, such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements.

1. The deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and all trade unions without legislative obstruction.

1. A considerable delay in the administration of justice with regard to the remittance of trade union dues withheld by an enterprise is tantamount in practice to a denial of justice.

1. A legal restriction on the amount which a federation may receive from the unions affiliated to it would appear to be contrary to the generally accepted principle that workers organizations shall have the right to organize their administration and activities and those of the federations which they form.

1. Particularly in transition countries, special measures, including tax deductions for trade union dues and membership dues of employers organizations, should be considered in order to ease the development of employers and workers organizations.

1. It is inconsistent with the principles of freedom of association to unilaterally extend the check-off facility to all staff without a collective agreement between the parties to that effect.

Control and restrictions on the use of trade union funds

1. Provisions which give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association.

1. The freezing of union bank accounts may constitute serious interference by the authorities in trade union activities.

1. While the legislation in many countries requires that trade union accounts be audited, either by an auditor appointed by the trade union or, less frequently, appointed by the registrar of trade unions, it is generally accepted that such an auditor shall possess the required professional qualifications and be an independent person. A provision which reserves to the government the right to audit trade union funds is therefore not consistent with the generally accepted principle that trade unions should have the right to organize their administration and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.

1. Legislation obliging a trade union to have its books of account stamped and the pages numbered by the ministry of labour before they are opened for use appears only to be aimed at preventing fraud. The Committee has taken the view that such a requirement does not constitute a breach of trade union rights.

1. The Committee has observed that, in general, trade union organizations appear to agree that legislative provisions requiring, for instance, financial statements to be presented annually to the authorities in the prescribed form and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. Measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. However, it would seem that measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organizations or impede the lawful exercise thereof, contrary to Article 3 of Convention No. 87. It may be considered, however, to some extent, that a guarantee exists against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where that official is subject to the control of the judicial authorities.

1. The control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions.

1. As regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a unions exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential.

1. The general principle that there should be judicial control of the internal management of an occupational organization in order to ensure an impartial and objective procedure is particularly important in regard to the administration of trade union property and finances.

1. Where the bank accounts of trade union leaders accused of embezzlement of trade union funds are frozen, the Committee has pointed out that if, following investigation, no evidence of misappropriation of trade union funds has been found, it would be unreasonable for the accounts of the trade unionists, whether or not they have remained in the country, to remain frozen.

1. It is for the organizations themselves to decide whether they shall receive funding for legitimate activities to promote and defend human rights and trade union rights.