Informe provisional - Informe núm. 321, Junio 2000

1. 188. The complaint in this case was presented by the Central Association of Estonian Trade Unions (EAKL) in a communication dated 25 February 1999. Additional information was sent by the complainant confederation on 23 March 1999.
2. 189. In a communication dated 7 May 1999 the Minister of Labour and Social Affairs reported that a new Government had come to power on 25 March 1999 and invited the Office to send a technical mission to Estonia to find a solution to questions related to freedom of association principles.
3. 190. At its June 1999 meeting the Committee adjourned the examination of this case and noted that contacts would be made during the International Labour Conference so as to specify the terms of such a mission (see 316th Report of the Committee, approved by the Governing Body at its 275th Session, June 1999, para. 13). This mission took place from 25 to 27 August 1999. It was led by Ms. Anna Pouyat, Deputy Chief of the Freedom of Association Branch, who was accompanied by Ms. Shauna Olney, Senior Legal Officer, and Mr. Giuseppe Casale, Senior Industrial Relations Specialist (ILO, Budapest). The Committee was informed about this mission at its November 1999 meeting where it once again adjourned the examination of the case (see 318th Report, para. 10).
4. 191. In the meantime, the complainant organization sent further information in a communication dated 28 February 2000 and the Government sent some information in communications dated 16 March and 24 April 2000.
5. 192. Estonia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 193. In its communication dated 25 February 1999 the Central Association of Estonian Trade Unions (EAKL) denounced the refusal of the public authorities to register it as a national confederation. It emphasized that the Act concerning non-profit-making associations according to which trade union organizations must be registered to be able to obtain legal personality was very restrictive. As a result there were delays in the registration of trade unions and unjustified interference in their functioning. In addition, it alleged that these provisions had the effect of automatically disbanding trade unions that had not obtained their registration by a given date.
2. 194. The EAKL emphasized that under the Act those organizations that had not obtained their registration by October 1998 (a date that was later postponed to 1 March 1999) would be disbanded and their property would be liquidated. The complainant confederation added that its statutes, which had been democratically approved by its congress in 1995, had been rejected by the clerk in charge of registrations. This stopped the EAKL from being registered and threatened it with automatic disbandment.
3. 195. The restrictive conditions for registration which, according to the EAKL, were a prior requisite for its establishment involved:
   • -- the obligation to file a request for registration certified by a notary and countersigned by the members of the executive committee which implied paying notary's fees;
   • -- the obligation, in order to obtain the registration, to pay a tax which, added to the notary's fees, was the equivalent of two weeks' minimum wage;
   • -- the discretionary power of the clerk to accept or refuse the documents attached to the registration request, the formalities being very detailed and being open to different interpretation;
   • -- the length of the procedure which took three to six months or more, no deadline being placed on the public authorities to process the files in order to allow the trade unions to take legal action;
   • -- conditions for the registration of already existing trade unions determined differently on a case-by-case basis.
4. 196. In the opinion of the EAKL, the registration conditions violated the right to establish and join organizations on the following points:
   • -- obstacles to the right of trade unions to join federations as a non-registered trade union did not have legal personality and could therefore not join a federation;
   • -- obligation on the founding members of trade unions to personally sign the merger agreement to establish a federation, while according to the complainant confederation this right should belong to the general assembly of the delegates of trade unions;
   • -- obstacles placed on trade unions in large enterprises where there are a high number of founding members, in that they did not have the right to appoint delegates who, during the constitutive meeting, had the power to formally create the trade union;
   • -- the impossibility for small trade unions with three to ten members which did not wish to obtain their registration to join federations.
5. 197. Concerning interference in the internal functioning of trade unions, the EAKL raised further points concerning:
   • -- the procedure for convening general assemblies and adopting resolutions (over half the members had to participate, the statutes had to be adopted by a majority of two-thirds and modifications concerning objectives had to be adopted by a majority of nine-tenths);
   • -- the obligation to hold an annual general assembly (including half of the members) which should approve the annual report;
   • -- excessively high number of members necessary for the adoption of resolutions (at least half of the members);
   • -- the system of delegates which was not authorized, while in the statutes of the trade unions delegates were elected by the representative bodies on the basis of the number of members in the trade union;
   • -- the election of management bodies which was regulated, and in some circumstances the right given to the court to appoint the members of an executive committee;
   • -- the devolution in some cases of an association's property which could go to the State;
   • -- interference by the authorities in appointing members in the event of the merger or division of associations;
   • -- the obligation to make public the minutes of meetings and other documents;
   • -- the ability of the clerk to request the minutes of meetings relating to amendments of statutes and the list of participants and also of signatories;
   • -- the obligation to convene a general assembly when the clerk required amendments to be made to the statutes of associations;
   • -- restrictive conditions imposed on the content of the statutes whereby the EAKL and its affiliated organizations, in several sectors, were unable to draft the statutes in accordance with the law because the result would have been obstacles to their trade union activities.

B. Information obtained during the mission

1. 198. The mission which took place in Estonia from 25 to 27 August 1999 met - from the Government: the Minister of Social Affairs, Mr. Eiki Nestor, and the Legal Adviser to the Ministry, Ms. Anne Joonsaar; representatives from the Ministry of Justice, Mr. Henri Mikk, director of the Department of Private Law, and Mr. Viljar Peep, head of the Office of Commercial Registration; from the workers: Mr. Tiit Kaadu, secretary-general of the Central Association of Estonian Trade Unions (EAKL), Ms. Kadi Pärnits, legal adviser, and Ms. Margarita Tuch, lawyer for this trade union; for the employers: Mr. Tarmo Kriis, legal adviser. The mission was given every possible assistance in its work and all those it met with were extremely cooperative and frank.
2. 199. The Minister of Social Affairs explained the recent background to labour relations in Estonia. In 1989, a special Act was adopted to put an end to the system of trade unionism subject to government power and to guarantee the establishment of new independent trade unions. Nevertheless, this 1989 Act which authorizes the establishment of trade union organizations without prior authorization does not regulate the question of registration which in Estonia confers legal personality on trade unions. The applicable legislation in this area was therefore the Act on non-profit-making and related associations which was repealed by the 1996 Act on non-profit-making associations in order to exclude control over the registration of associations from the Government's jurisdiction and give it to the courts. According to the Minister of Social Affairs, approximately half of previously registered trade unions have re-registered themselves under the new Act and, the remaining half have considered the procedure to be too complicated and inappropriate. The Minister of Social Affairs explained that, when he was still the leader of the Transport Trade Union, his union was registered in accordance with the 1996 Act, but he agreed that the procedure stipulated by the Act is complicated and cumbersome. He referred in particular to the fact that the founding members must personally submit their signatures in a notarized instrument. He also recognized that workers who, individually, wished to join a federation came up against difficulties. The Minister nevertheless stressed that a working group responsible for examining a Bill on the registration of trade unions had been set up and that this group, which had already held a number of sessions, would continue to meet. The EAKL was part of the group and was in charge of drafting the Bill on freedom of association and protection of the right to organize that had been brought to the attention of the mission. The Government intends to formulate its comments on this proposal. Nevertheless, the Minister explained the importance of registration to obtain legal personality in order to establish credibility and to determine the trade union partners in the area of collective bargaining. He confirmed that the new Act would be less rigid and would leave trade unions free to determine their own structure and to conduct their internal activities.
3. 200. The Minister of Social Affairs lastly assured the mission of the importance for Estonia of respect for freedom of association, and in particular of allowing trade unions to conduct their activities without government interference. He indicated that an Act adopted on 28 June 1999 had been promulgated, which provided that trade unions, federations and confederations would not be subject to administrative disbandment, in application of the Act on non-profit-making associations, before 1 December 1999 due to non-compliance with registration formalities. The date of registration was also extended to 1 December 1999. This was the second legislative postponement and no trade unions had yet been disbanded.
4. 201. The representatives of the Ministry of Justice considered that the 1996 Act on non-profit-making associations was a step in the right direction as the registration procedure was now conducted by independent judges. According to the system in place in 1996 the register of associations is kept by the clerk of the courts where associations and enterprises are registered. In their view the Act is very liberal as only two people are necessary to establish an association and, contrary to what was said by the complainant confederation, there is no registration tax for previously registered trade unions. Trade unions can contest the provisions of the 1996 Act before the constitutional court if they consider them to be contrary to the international labour Conventions ratified by Estonia. The representatives of the Ministry of Justice confirmed that the Bill on freedom of association and protection of the right to organize under preparation, which was being drafted by the EAKL, certainly came under the jurisdiction of the Ministry of Social Affairs, but indicated that this Bill should obtain the endorsement of the Ministry of Justice. They provided the mission with statistics on the trade unions registered (70 are already registered and 50 are in the process of being registered, including the EAKL). In their view, in order to register itself this organization had firstly to make amendments to its statutes concerning technical formalities, errors or articles that did not comply.
5. 202. The representatives of the Ministry of Justice admitted that the 1996 Act was open to differences of interpretation between the four competent judicial areas in the country. This was due to the fact that the judicial system was still relatively recent. On the matter of taxes, only new trade unions were obliged to pay them, with trade unions that were re-registering being exempt. The deadlines for registration should in principle be 15 days in the case of re-registration and two months for new trade unions. In the event of any difficulties, it was for the judge to give additional time for trade unions to make the necessary modifications to their statutes. Unfortunately, almost all requests for registration had been lodged in February 1999, just before the closing date, thus extending the deadlines. The representatives of the Ministry of Justice confirm that the provisions of the 1996 Act did not in any way constitute prior authorization. In their view, the founding members must all personally sign or give a procuration to someone else to sign on their behalf. The Act does not authorize the election of delegates to participate in general assemblies, but a member can appoint someone to vote on his behalf. They did not consider it useful to amend the 1996 Act, but were ready to examine the Bill concerning trade unions under preparation.
6. 203. The representatives of the EAKL met the mission twice. They explained that they had submitted their statutes for registration on 26 February 1999 and that in May 1999 the court had rejected their request, declaring in very general terms that it was not in compliance with the Act on non-profit-making associations. The EAKL then provided the text of the Decree containing the refusal by the deputy judge which mentions that "the registration certificate, the minutes and the statutes of the trade union attached to the request for registration are not in compliance with the requirements of article 85(3) of the 1996 Act on non-profit-making associations in accordance with which only the originals or copies certified by a notary may be submitted to the clerk". The Decree indicates that the EAKL must rectify the situation before 30 September 1999. The trade union representatives said they were aware that the trade unions must register themselves in order to have legal personality and to be admitted to the collective negotiation table, but they reiterated their strong criticism about the 1996 Act. In their view, only federations from three sectors were registered: transport, energy and wood and forestry. Those in the sectors of textiles, telecommunications, medicine and seafarers had appealed to the courts about their registrations. As regards the revision of the Act, for which the EAKL has drafted a very detailed proposal, they referred to the difficulties they had encountered with the representatives of the Ministry of Justice. They hoped that the Act on freedom of association and protection of the right to organize under preparation would lead to the repeal of the 1989 trade union Act and would exclude trade unions from the 1996 Act on non-profit-making associations. In their view, the new Act should be less restrictive and give trade unions the right to manage their internal affairs without interference from the public authorities.
7. 204. The representative of the Estonian Employers' Confederation (ETTK) confirmed that the 1996 Act applied to employers and employers' organizations and that the employers' confederation had had to register itself in accordance with the law. Just one employers' organization had been disbanded, but it had wanted to cease activities. The Act had certainly had a more negative impact on workers' organizations than on employers' organizations. In his view, obtaining legal personality was essential to facilitate relations between trade unions and employers. The latter were in favour of a single registration system for employers' and workers' organizations and for keeping the 1996 Act, but they criticized the provisions allowing interference by the public authorities in the internal affairs of organizations, particularly as regards the questions of affiliates and structure. He noted that certain employers' organizations had had difficulties in obtaining their registration. Furthermore, the employers' representative explained that in the absence of enterprise trade unions, workers' representatives could be elected. In practice, collective agreements only covered workers in large enterprises. If a new Act were to be adopted the employers hoped that it would apply to various employers' organizations and that it would specify the levels of negotiations with government representatives as at present discussions only occurred in the framework of informal arrangements. Furthermore, the employers hoped that the Act would take into account their commitment to vocational education, industrial policies and the collection of statistics. Those areas currently came under several ministries making coordination difficult. With regard to the representativeness of organizations, discussions were under way but the employers thought that in principle it would be appropriate to require five branch associations to form a confederation.
8. 205. On the request of the mission a tripartite meeting was held in its presence between the Ministry of Social Affairs and the representatives of the EAKL and the ETTK.
9. 206. On the employers' side it was indicated that the ETTK would be happy with amendments to the 1996 Act to bring it more into line with the principles of freedom of association. The employers agreed that the system of procuration instead of the election of delegates to participate in general assemblies could well cause difficulties for trade unions and that, proportionally, the taxes were less of a burden for employers' organizations than for workers' organizations. The employers did not insist on the adoption of a single act covering employers and workers.
10. 207. On the workers' side, the EAKL representatives reiterated their grievances concerning the 1996 Act on non-profit-making associations. They denounced the refusal of the judge to register the seafarers' trade unions on the grounds that he did not approve the way in which the executive committee had been elected (seafarers on board ship could not all sign in person). The election procedure stipulated in the Act was cited, in accordance with the EAKL statutes, each basic trade union votes in proportion to the members it represents, while the 1996 Act gives the same number of votes to a trade union representing 20 members as to one representing 600 members. They again mentioned the difficulties encountered with the Ministry of Justice and indicated that in the framework of the preparation of the new Act the question of representativeness could be set aside for the moment.
11. 208. The Minister of Social Affairs said he favoured an amendment of the 1989 trade union Act to include provisions relating to the registration procedure. He indicated that an act covering employers and workers ran the risk of creating more confusion than solutions. He again referred to the issues concerning the structure of trade unions and trade union activities, which in his view should be left to the trade union statutes and should not in any way be regulated by law. He agreed that provisions on the protection of workers against anti-union discrimination should be reinforced. He thought that the question of the representativeness of trade union organizations should not be dealt with at the present stage. He thought it preferable to allow labour relations to develop freely. He said he was in favour of less complex legislation in accordance with the standards and principles of freedom of association, stressing the fact that the Act should apply to all workers without distinction whatsoever rather than to employees in the strict sense of the term.

C. Developments since the mission

• (a) Information communicated by the complainant
  209. 209 In a communication dated 28 February 2000, the EAKL announced that it had obtained its registration in mid-December 1999 and that it had not had to amend its statutes in any way, although the authorities had previously said that they were not compatible with Estonian law.
  210. 210 The EAKL nevertheless regretted the lack of progress in the adoption of the new legislation. It indicated that the trade union Act under preparation had still not been adopted owing to the reluctance of the Ministry of Justice.
• (b) The Government's reply
  211. 211 In a communication dated 16 March 2000, the Government announced that on 29 February 2000 it had submitted to Parliament the trade union Bill discussed with the EAKL representatives. It annexed the Prime Minister's communiqué submitting to Parliament, for adoption, said Bill prepared by the Ministry of Social Affairs and entrusting the Minister of Social Affairs to submit it to Parliament. The Government stressed the fact that the Ministry of Social Affairs was the EAKL's only social partner and not the Ministry of Justice. It confirmed that the Bill had taken into account all the recommendations made by the mission on the basis of the principles of freedom of association.
  212. 212 In a communication dated 24 April 2000, the Government stated that the Bill was adopted at the first reading by Parliament on 5 April 2000, and hopes that the final text will be adopted in June 2000.

D. The Committee's conclusions

1. 213. This case concerns allegations of government interference in the establishment and internal functioning of trade union organizations. It relates in particular to the alleged refusal to register a national confederation, the Central Association of Estonian Trade Unions (EAKL), by the public authorities and threats of automatic disbandment of trade union organizations that had not obtained their registration by a given date. It also concerns obstacles to the establishment and functioning of trade unions contained in the 1996 Act on non-profit-making associations which provides that trade unions must be registered to obtain legal personality.
2. 214. As regards the refusal to register the EAKL and the risk of automatic disbandment of this trade union organization, the Committee notes with satisfaction that the EAKL, which had filed its statutes in February 1999, was registered in December 1999, without having to amend its statutes in any way. This being the case, the Committee will not pursue its examination of these allegations
3. 215. The Committee noted with concern the provisions of the Act concerning non-profit-making making associations which imposed on workers' and employers' organizations a heavy and detailed procedure for the acquisition of legal personality (notarized acts, fees) and which grant officials of the Ministry of Justice discretionary powers to interfere in the drafting of organizations' constitutions, in the framework for elections of trade union leaders and in the supervision of the management of workers' and employers' organizations. The Committee recalls that, in ratifying Convention No. 87, the Government has committed itself to guaranteeing to workers' and employers' organizations the right to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities without interference by the public authorities. It further recalls that the acquisition of legal personality by workers' and employers' organizations, their federations and confederations should not be made subject to conditions of such a character as to restrict the application of the provisions of the Convention. (Articles 3 and 7 of the Convention.) The Committee has always considered that legislative provisions which regulate in detail the internal functioning of workers' and employers' organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. Restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body so as to avoid any risk of excessive or arbitrary interference in the free functioning of organizations. Consequently, in order to guarantee the right of workers' organizations to draw up their constitutions and rules in full freeom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities (see Digest of decisions and principles of the Committee on Freedom of Association, 1996, 4th edition, paras. 331 and 333.).
4. 216. In the circumstances concerning the interference in the establishment and functioning of trade union organizations contained in the 1996 Act on non-profit-making associations, the Committee notes with interest that, in accordance with commitments made by the Government during the ILO's mission, a trade union Bill discussed with the representatives of the EAKL was submitted to Parliament on 29 February 2000. It observes in particular that, according to the Government, this Bill took into consideration all the recommendations made by the mission on the basis of the principles of freedom of association.
5. 217. Noting the statement of the Minister of Social Affairs according to which an act concerning workers' and employers' organizations ran the risk of creating more confusion than solutions, the Committee requests the Government to guarantee that the national legislation will allow and promote the free formation and free functioning of employers' organizations.
6. 218. The Committee expects that the new Act on the formation and functioning of workers' and employers' organizations, in compliance with the principles of freedom of association, will be adopted shortly and that it will not keep in force the provisions of the 1996 Act on non-profit-making associations that restrict the creation and functioning of these organizations. It requests the Government to provide a copy of the final text once it is adopted.