Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 375, Juin 2015

Cas no 2777 (Hongrie) - Date de la plainte: 05-AOÛT -10 - Clos

Effect given to the recommendations of the Committee and the Governing Body

1. 33. The Committee last examined this case, in which the complainant alleged that the detailed requirements for the registration of trade unions imposed by courts have resulted in delays of registration, at its June 2011 meeting [see 360th Report, paras 743–781]. On that occasion, the Committee: (1) expressed its expectation that, in the future, on matters relating to the scope of union membership, devolution of trade union assets, determination of union dues, employers’ consent to union establishment, use of headquarters and content requirement for by-laws, account will be taken of the principles set out in its conclusions; (2) expected that all necessary measures will be taken to ensure that provisions regulating the structure of social organizations in a broader sense are not unduly extended to trade unions and the procedure for registering trade unions consists in a mere formality, in both law and practice; and (3) requested the Government to take the necessary steps to ensure that guidance is adopted, including through the review of the rules governing the registration of social organizations in consultation with the social partners concerned, which would ensure a clear and simple understanding of the concrete statutory conditions to be met by the unions for the purposes of registration and of the specific criteria to be applied by courts when deciding whether or not those conditions have been fulfilled and to keep it informed of any developments in this regard.
2. 34. In a communication dated 16 July 2013, the Government indicates that new laws concerning the right of association entered into force in January 2012, among which is Act CLXXXI of 2011 on court registration of civil society organizations and related rules of proceeding (Act CLXXXI) containing the rules governing registration of trade unions by courts in respect of documents to be attached to the application for registration, the tasks of the court following the submission of such application and the conditions for refusal as well as the criteria for an in-depth evaluation of applications with special regard to the content. The Government adds that further provisions provide for an electronic registration procedure aimed at reducing the administrative burden and shortening the length of the registration process (maximum of 15 days), an electronic system of certified court records to facilitate compliance with registration requirements as well as a uniform summary of regulations and principles applied in judicial practices.
3. 35. The Government indicates that the new Act CLXXV of 2011 on the right of association, non-profit status, and the operation and funding of civil society organizations which entered into force on 3 January 2012 does not, like its predecessor (Act II of 1989 on the rights of association), hinder trade unions from representing the interests of persons under different types of employment relationships nor does it prevent the latter from joining a trade union or other organizations representing their interests. With regard to the registration of Szent Flórián Association of Firefighters, the Government states that the court’s ad hoc decision to limit the union’s membership to persons falling under Act XLIII of 1996 on the service status of professional members of the armed services (Hszt) was based on an exceptional and unique interpretation of the law which is different from the usual judicial practice, and adds that the union may join a higher-level firefighting trade union association in accordance with its amended statutes.
4. 36. As regards the question of devolution of trade union assets, the Government states that, as was the case for the former Act II of 1989 which provided that the allocation of assets was to be conducted in accordance with the provisions of the organization’s statutes, the new Act CLXXV also specifies that devolution of assets must primarily be governed by the organization’s statutes and that the court’s decision to request the amendment of the provisions on allocation of assets was based on a misinterpretation of the law in force at the time (Act II of 1989). The Government further states that provisions concerning the allocation of assets should not obstruct the registration of a trade union.
5. 37. As regards trade union membership fee, the Government underlines that neither the former Act II of 1989 nor the current Act CLXXV carry special provisions on membership fees and that the determination of the amount of membership fee falls into the trade union’s scope of regulatory activities. The Government reiterates that the court’s ruling holding that the amount of the membership fee may not be determined as a percentage of the member’s salary was based on an erroneous court interpretation and has since been remedied. Similarly, with respect to the employer’s consent to the establishment of a union, the Government reiterates that it is not required as a condition for registration under Hungarian law and that the court’s ruling in this respect was unique and exceptional as no more such rulings have been handed down during the period examined.
6. 38. In relation to the use of headquarters, the Government maintained its position that it is a prerequisite of legal operation that the legal entity (any association, including trade unions) certify its right to use the real property designated as its registered seat; hence the requirement that the certificate evidencing the union’s right to use its headquarters be attached to the application. The Government explains that the court ordered the correction of irregularities in respect of case T.60170/2008/2 because the signature of the person authorizing the use of the headquarters was missing on the certificate attached to the application, and, had the applicant been dissatisfied with this decision, they were free to apply for legal remedy by way of an appeal to the Court of Appeal. Therefore, the application by the courts of the provisions regarding the use of headquarters is in harmony with the guarantees concerning the free exercise of the right to organize.
7. 39. The Committee takes due note of the information provided by the Government, in particular the entry into force in January 2012 of Act CLXXXI which contains rules governing the registration of trade unions with respect to the required documents to be submitted with the application, the conditions for a refusal of registration and the criteria for an in-depth evaluation of the registration application with special regard to its content. The Committee also notes with interest that Act CLXXXI is intended to simplify the registration process by putting into place an electronic procedure that will shorten the length of the process (maximum of 15 days), an electronic system of certified court records to facilitate compliance with registration requirements as well as a uniform summary of regulations and principles applied in judicial practices. Noting the steps already undertaken by the Government and recalling that 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 and that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 279], the Committee, in line with the comment made by the Committee of Experts on the Application of Conventions and Recommendations on this issue, invites the Government to pursue in consultation with the social partners efforts aimed at simplifying the requirements for registration of workers’ and employers’ organizations and particularly to ensure that the conditions for the granting of registration are not tantamount to a de facto requirement for previous authorization from the public authorities to establish a trade union. The Committee requests the Government, as a result of its ratification of Conventions Nos 87 and 98, to provide a copy of Act CLXXXI to the Committee of Experts to which it refers the legislative aspects of this case.
8. 40. As regards union membership scope in the case of Szent Flórián Association of Firefighters, the Committee notes with interest the Government’s statement that the court’s decision to limit membership to those employed under the Hszt was based on an exceptional and unique interpretation of the law different from the usual judicial practice and that the trade union may, if it so wishes, join a higher-level firefighting trade union association in accordance with its amended statutes.
9. 41. In relation to the devolution of the union’s assets and the determination of membership fees and the use of headquarters, the Committee, welcoming the Government’s statements – (1) that the court’s interpretation according to which union membership fees cannot be determined as a percentage was erroneous and has since been remedied; and (2) that the decision to request the amendment of the provisions on allocation of assets was based on a misinterpretation of the law in force at the time (Act II of 1989) and that these provisions should not obstruct the registration of the organization – wishes to recall that in accordance with the principles of freedom of association these matters are to be governed primarily by the by-laws of the organizations themselves.
10. 42. As regards the court’s decision to require the employer’s consent to the establishment of a union as a prerequisite for the registration of a union, the Committee notes the Government’s reiteration that such a precondition is in contradiction with the Hungarian laws on freedom of association and the right to organize. Further noting the Government’s assurances that no more such rulings have been handed down by the courts, the Committee expects that the courts will continue upholding the principle prohibiting the requirement to obtain the employer’s consent to the formation of a union as such a requirement indeed constitutes a clear violation of the principles of freedom of association.