Compilation of decisions of the Committee on Freedom of Association

Dissolution and suspension of organizations11

General principles

1. In the light of Convention No. 87, organizations of workers can only be dissolved voluntarily or through judicial channels.

1. In a case involving the dissolution and suspension of the trade union organizations in a country, the Committee expressed its deep conviction that in no case does the solution to the economic and social problems besetting a country lie in isolating trade union organizations and suspending their activities. On the contrary, only through the development of free and independent trade union organizations and negotiations with these organizations can a government tackle such problems and solve them in the best interests of the workers and the nation.

1. In view of the serious consequences which dissolution of a union involves for the occupational representation of workers, the Committee has considered that it would appear preferable, in the interest of labour relations, if such actions were to be taken only as the last resort, and after exhausting other possibilities with less serious effects for the organization as a whole.

Voluntary dissolution

1. Where the decision to dissolve a trade union organization was freely taken by a congress convened in a regular manner by all the workers concerned, the Committee was of the opinion that this dissolution, or any consequence resulting from it, would not be regarded as an infringement of trade union rights.

Dissolution on account of insufficient membership

1. A legal provision which requires the dissolution of a trade union if its membership falls below 20 or 40, depending on whether it is a works union or an occupational union, does not in itself constitute an infringement of the exercise of trade union rights, provided that such winding up is attended by all necessary legal guarantees to avoid any possibility of an abusive interpretation of the provision; in other words, the right of appeal to a court of law.

1. In one case where the legislation required that there be at least 20 persons in order to found a union, and where a court had ordered the dissolution of a union of homeopathy workers because of the insufficient number of persons legally qualified to practice this profession, the Committee considered that the dissolution did not appear to constitute a measure which could be considered an infringement of freedom of association.

1. In a case in which it concluded that the reduction in the number of union members to below the legal minimum of 25 was the consequence of anti-trade union dismissals or threats, the Committee requested the government, should it be concluded that these were anti-trade union dismissals and that the withdrawal from union membership of trade union leaders resulted from pressure or threats from the employer, to impose the penalties provided by the legislation, reinstate the dismissed workers in their jobs and permit the dissolved trade union to be reconstituted.

Dissolution and suspension by administrative authority

1. Measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association.

1. The administrative dissolution of trade union organizations constitutes a clear violation of Article 4 of Convention No. 87.

Cancellation of registration or trade union status

1. The Committee has emphasized that the cancellation of registration of an organization by the registrar of trade unions or their removal from the register is tantamount to the dissolution of that organization by administrative authority.

1. The cancellation of a trade union organizations registration by administrative authority because of an internal dispute which in fact implies the suspension of its activities is a serious infringement of the principles of freedom of association, and in particular of Article 4 of Convention No. 87 which provides that workers and employers organizations are not liable to be dissolved by administrative authority.

1. Cancellation of a trade unions registration should only be possible through judicial channels.

1. Deregistration measures, even when justified, should not exclude the possibility of a union application for registration to be entertained once a normal situation has been re-established.

1. Legislation which accords the minister or administrative authorities the complete discretionary power to order the cancellation of the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association.

Dissolution by legislative measures

1. Dissolution by the executive branch of the government pursuant to a law conferring full powers, or acting in the exercise of legislative functions, like dissolution by virtue of administrative powers, does not ensure the right of defence which normal judicial procedure alone can guarantee and which the Committee considers essential.

1. Noting that under a legal provision, the registration of existing trade unions was cancelled, the Committee considered that it is essential that any dissolution of workers or employers organizations should be carried out by the judicial authorities, which alone can guarantee the rights of defence. This principle, the Committee has pointed out, is equally applicable when such measures of dissolution are taken even during an emergency situation.

Reasons for dissolution

1. To deprive many workers of their trade union organizations because of a judgement that illegal activities have been carried out by some leaders or members constitutes a clear violation of the principles of freedom of association.

1. If it was found that certain members of the trade union had committed excesses going beyond the limits of normal trade union activity, they could have been prosecuted under specific legal provisions and in accordance with ordinary judicial procedure, without involving the suspension and subsequent dissolution of an entire trade union movement.

1. In a case where trade union status was withdrawn from a trade union organization, partly to irregularities in the financial management of the organization, the Committee considered that, if the authorities found irregularities which might be detrimental to the unions social assets, they should have taken legal action based on these irregularities against the persons responsible rather than adopt measures depriving the union of all possibility of action.

1. Development needs should not justify maintaining the entire trade union movement of a country in an irregular legal situation, thereby preventing the workers from exercising their trade union rights, as well as preventing organizations from carrying out their normal activities. A balanced economic and social development requires the existence of strong and independent organizations which can participate in this process.

1. Given the extremely serious consequences that the dissolution of a union involves for the occupational representation of workers, the Committee has considered that the nomination of a representative of a federation as a candidate for the presidency of the country can in no way justify the dissolution of an entire federation.

1. The dissolution of a trade union is an extreme measure and recourse to such action on the basis of a picket action resulting in the disruption of a public event, the temporary termination of an organizations activities or the disruption of transport, is clearly not in conformity with the principles of freedom of association.

1. In view of the serious consequences which cancellation of trade union registration involves for the occupational representation of workers, the Committee considers that the use of the companys name in the title of the trade union should not result in the cancellation of trade union registration.

Intervention by the judicial authorities

1. The Committee considers that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed.

1. The suspension of the legal personality of trade union organizations represents a serious restriction on trade union rights and in matters of this nature the rights of defence can only be fully guaranteed through due process of law.

1. Any measures of suspension or dissolution by administrative authority, when taken during an emergency situation, should be accompanied by normal judicial safeguards, including the right of appeal to the courts against such dissolution or suspension.

1. Even if they may be justified in certain circumstances, measures taken to withdraw the legal personality of a trade union and the blocking of trade union funds should be taken through judicial and not administrative action to avoid any risk of arbitrary decisions.

1. If the principle that an occupational organization may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decisions by a judicial authority.

1. Any possibility should be eliminated from the legislation of suspension or dissolution by administrative authority, or at the least it should provide that the administrative decision does not take effect until a reasonable time has been allowed for appeal and, in the case of appeal, until the judicial authority has ruled on the appeal made by the trade union organizations concerned.

1. Judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87. In effect, if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; the judges hearing such an appeal could only ensure that the legislation had been correctly applied. The same problem may arise in the event of the suspension or dissolution of an occupational organization.

Use made of the assets of organizations that are dissolved

General principles

1. The Committee has accepted the criterion that, when an organization is dissolved, its assets should be provisionally sequestered and eventually distributed among its former members or handed over to the organization that succeeds it, meaning the organization or organizations which pursue the aims for which the dissolved union was established, and which pursue them in the same spirit.

1. When a union ceases to exist, its assets could be handed over to the association that succeeds it or distributed in accordance with its own rules; but where there is no specific rule, the assets should be at the disposal of the workers concerned.

Transition to a situation of pluralism

1. With regard to the issue of the distribution of trade union assets among various trade union organizations following a change from a situation of trade union monopoly to a situation of trade union pluralism, the Committee has emphasized the importance it attaches to the principle according to which the devolution of trade union assets (including real estate) or, in the event that trade union premises are made available by the State, the redistribution of this property must aim to ensure that all the trade unions are guaranteed on an equal footing the possibility of effectively exercising their activities in a fully independent manner. It would be desirable for the government and all the trade union organizations concerned to make efforts to conclude as soon as possible a definitive agreement regulating the distribution of the assets of the former trade union organization.

1. When examining a case concerning the devolution of the assets of the trade union organizations in a former communist country undergoing democratization, the Committee invited the government and all the trade union organizations concerned to establish, as soon as possible, a formula to settle the question of the assignment of the funds in question so that the government could recover the assets that corresponded to the accomplishment of the social functions which it now exercised and all the trade union organizations were guaranteed on an equal footing the possibility of effectively exercising their activities in a fully independent manner.

1. The question of the devolution of the assets of a trade union from a former communist country is best solved by an agreement between the Government and the trade unions concerned.