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