INTERNATIONAL LABOUR OFFICE
STUDIES AND REPORTS
Series A (Industrial Relations) No. 28
FREEDOM OF ASSOCIATION
VOLUME I
COMPARATIVE ANALYSIS
GENEVA
1927
PREFACE
I.
ORIGIN
OF THE ENQUIRY
The question of freedom to combine for trade purposes has
been repeatedly discussed at sessions of the International
Labour Conference and of the Governing Body ever since the
International Labour Organisation came into existence. As
early as in 1919, at the Conference at Washington, questions
concerning trade union law were raised and complaints were
made with regard to restrictions imposed on the freedom of
association. It was proposed to place the subject on the agenda
of the next Conference l . In June 1920 the Governing Body had
to approach the question. Shortly before, the Director of the
International Labour Office had received from the Hungarian
Government a telegram in which he was asked to send a committee to Hungary for the purpose of making investigations on
the spot as to whether there was any foundation for the rumours
which were then current regarding the so-called "White Terror"
and the persecution of the workers. The Governing Body did
not actually send a committee of enquiry, but authorised the
Director on his own responsibility to verify the facts to which
the Hungarian Government and the workers' organisations
in that country wished to draw attention. Three officials of
the Office were sent to Hungary in the autumn of 1920 ; the
results of their enquiries were published in a report on "Trade
Union Conditions in Hungary" 2.
In December 1920 the International Labour Office received
a complaint from the General Workers' Union of Spain in
which it was alleged that the Spanish Government had taken
measures prejudicial to the workers' freedom of association. The
Governing Body, however, was compelled to refrain from giving
effect to the complaint, as on this occasion the representations
had not been made to the International Labour Organisation
by the Government itself, and no intervention in accordance
with Article 409 of the Treaty of Peace was possible without
1
2
See Final Records, p p . 48, 138, 141, 164, 263.
INTERNATIONAL
Hungary.
LABOUR
OFFICE :
Trade
Union
Conditions
in
Geneva, 1921.
J
—
VI
—
the assent of the Government concerned, so long as the question
of freedom of association had not been regulated by an international convention.
By these events, and the considerations to which they gave
rise, the Governing Body at its Twentieth Session in October
1923 was led to go into the whole problem of freedom to combine
for trade purposes. Mr. Jouhaux, workers' representative,
asked that the International Labour Office should open an
enquiry into the application of the principle of freedom of
association, and referred to articles 387, 396, and 427, par. 2,
of the Treaty of Versailles. The following Resolution was
adopted :
The Governing Body.
Considering t h a t the Permanent Organisation created by P a r t X I I I
of the Treaty is, under the terms of Article 387, entrusted with the
duty of carrying out the programme set forth in the Preamble of t h a t
P a r t of the Treaty,
Considering t h a t this programme affirms inter alia the principle of
freedom of association,
Draws the attention of the Director of the International Labour
Office to the value of collecting t h e most complete documentary evidence
with reference to the position in all countries which are members of t h e
International Labour Organisation with regard to the application of
this principle.
;-."; In pursuance of this decision a preliminary comparative
analysis was made of the position in the Member States with
regard to the right to combine for trade purposes, and the
results were submitted to the Governing Body at its Twentyfirst Session in January 1924. The Study was published in
Volume IX, No. 4, of the International Labour Review (Geneva,
April 1924) under the heading : "Freedom of Association and
Trade Unionism : An Introductory Survey", by Jean Nicod.
The Governing Body instructed the International Labour
Office to continue the enquiry. Account was to be taken of the
views of the parties concerned as expressed in resolutions
adopted at employers' and workers' congresses. Further, for
the purposes of the comparative analysis, not only legislative
provisions, but also the judgments given by the courts which
interpreted them, were to betaken into consideration. Accordingly a second report, comprising the resolutions on the subject
adopted by employers' and workers' congresses during the
years immediately preceding, was submitted to the Governing
Body at its session in April 1924. Later, the International
Labour Office continued the enquiry as instructed, its aim
being to come to an objective conclusion as to the predominant
conception of freedom of association and its practical application.
—
IL
PREPARATION
FOR
VII
—
INTERNATIONAL
REGULATION
The Office was still engaged on this work when, at the Sixth
Session of the International Labour Conference, in 1924, Mr.
Suzuki, the Japanese workers' delegate, proposed a resolution
which was eventually adopted by the Conference in the
following terms :
The International Labour Conference
Considering that respect for the principle of freedom of association
is essential to the proper working of the Organisation, which should
unite in a common effort the Governments and the most representative
associations of employers and workers,
That the development of international social legislation, the object
for which the Organisation exists, cannot be fully realised unless this
right is freely recognised and conceded,
Recalls the fact that amongst the principles enumerated in the Labour
Portion of the Treaties of Peace the right of association of the workers
is expressly affirmed,
Instructs the Governing Body of the International Labour Office to
continue the documentary enquiry regarding liberty of association and
to enlarge its scope so as to deal with the actual application of the principle in different countries,
And requests the Governing Body, when this enquiry is completed,
to consider the advisability of placing the question on the agenda of
a future Session of the Conference, with a view to determining measures
to ensure full respect for the principle of freedom of association.
The Governing Body, at its Twenty-ninth Session in October
1925, held a preliminary discussion on the possibility of placing
the question of freedom of association for trade purposes on the
agenda of the Tenth International Labour Conference. At its
following session in January 1926, it finally decided to do so,
after taking note of a report submitted by the Office on the
progress of its enquiry.
The International Labour Office was now confronted with
a two-fold task : the enquiry on freedom of association had to
be completed, and the ground had to be prepared for the Tenth
Session of the Intel national Labour Conference. It was considered
advisable to combine the two tasks. The enquiry, as appears
from the resolutions, was to bring out the predominant conception of freedom to combine for trade purposes and to find
suitable means for securing this freedom. On the other hand,
any proposals to be submitted to the Conference would have
to be based on an objective comparison of the right of association
in different countries. The procedure for the preparation of the
Conference adopted by the Eighth International Labour Conference required these practical proposals to be the direct
outcome of preliminary research work. (According to this new
procedure a draft questionnaire was to be submitted by the
—
VIH
—
Office, and the Conference was then to decide on the questionnaire to be sent to the Governments.) The scheme adopted for
the enquiry greatly facilitated the combination of the two
tasks. The enquiry falls into two main parts : an analysis of
the existing laws on the right of association in the different
countries, and a general comparative survey.
The comparative survey was submitted to the Tenth Session
of the International Labour Conference in the form of a so-called
"Grey Report" 1 .
It concluded with a draft questionnaire
preceded by an explanatory statement. The Conference had
to decide on the adoption (with or without amendment) or the
rejection of this questionnaire. In view of the extraordinary
complexity of the considerations involved, the draft questionnaire prepared by the Office was confined to points of principle,
It ran as follows :
DRAFT
QUESTIONNAIRE
1. Do you consider it desirable that the Conference should adopt a
draft convention concerning freedom of association ?
2. Do you consider that this draft convention should make it an
obligation to secure the right of combination and the right of combined
action for trade purposes ?
3. Do you consider that the right of combination would be adequately
defined as follows : "The right of workpeople and of employers alike
to combine for the collective defence of their interests qua workpeople
or employers " ?
4. Do you consider that the right of combined action for tradepurposes would be adequately defined as follows : ' 'the right of combinations for trade purposes to pursue their objects by all such means as
are not contrary to the laws and regulations in force for the maintenanceof public order " ?
5. What other clauses do you consider it desirable to provide for
in the draft convention ?
III. DISCUSSION AT THE TENTH SESSION OF THE INTERNATIONAL.
LABOUR CONFERENCE
The results of the discussion of this subject by the Conference
may be summarised as follows 2 :
In the committee appointed by .the Conference to consider
the question 3 the employers were mainly concerned to delimit
1
INTERNATIONAL LABOUR OFFICE : Freedom of Association. Report
and draft questionnaire.
International Labour Conference, Tenth
Session, Geneva, 1927. Item II on the Agenda. Geneva, 1927.
2
See Provisional Records No. 15, pp. I-XVI; No. 17, pp. 264-284 No. 20, pp. 339-365 ; No. 21, pp. 373-379 ; No. 22, pp. 384-389.
3
The Governments of Belgium, France, Germany, Great Britain,.
Japan, and Spain were not represented on the Committee.
IX
the freedom of combination for trade purposes, to emphasise
rather the principle of individual liberty and to define more
narrowly the right of combined action. The workers, on the
other hand, were anxious to specify more precisely the rights
implied in freedom to combine for trade purposes. The Committee adopted Articles 1, 2 and 5 of the draft questionnaire
as they stood, while questions 3 and 4 were redrafted and
eventually submitted to the Conference in the following terms :
Question 3. — Do you consider t h a t the right of combination would
be adequately defined as follows :
" T h e right of workpeople and of employers alike to combine,
in observing the legal formalities,
freely, in any organisation they choose
for the collective defence and the promotion of their material and
moral interests qua workpeople or employers
provided that the right not to combine is safeguarded. "
Question 4. — Do you consider t h a t t h e right of combined action for
trade union purposes would be adequately defined as follows :
" The right of combinations for t r a d e union purposes to pursue
their objects by all such means as are not contrary to the interests
of the community and to the maintenance of public order."
W h a t do you understand by "not contrary to the interests of the community" ?
W h a t do you understand by the expression " t h e maintenance of
public order" ?
The plenary sitting, on a preliminary vote, adopted Question 3
in the amended form proposed by the Committee. In Question 4,
the words " to the interests of the community" were deleted,
as well as the subsequent question "What do you understand by 'not contrary to the interests of the community'".
The words "laws in force for the maintenance of public order"
were substituted for the words "maintenance of public order".
In addition, the following question was inserted :
Do you consider it desirable to include in the draft convention,
in principle, as an essential right of combinations for t r a d e union purposes:
the recognition of legal personality to the full extent necessary for
t h e realisation of their objects, with the rights and obligations flowing
therefrom.
On the final vote, however, the questionnaire thus redrafted
failed to obtain sufficient support. The Conference further
decided by 66 votes (including both employers' and workers'
representatives) against 28 not to place the question of freedom
of association for trade purposes on the agenda of the next
Conference.
X
IV. PRESENT OBJECT AND EXTENT OF THE ENQUIRY
Though an international convention safeguarding the freedom
to combine for trade purposes is thus, at least for the present,
out of the question, it is no less important, and possibly even
of greater interest, that the enquiry into the matter should be
pursued, for it may help to dispel the uncertainty still existing
with regard to the meaning of this right, the implications of
which are so complex. If that can be achieved, the ground will
be clear for an assimilation of national legislations and,
ultimately, for regulation on international lines.
For this purpose — that of promoting a proper understanding
of the problem — it has seemed well to enlarge the scope of the
enquiry and to include not only the problem of the right of
combination in its narrow sense, but trade union law in general,
i.e. the whole body of law regulating trade unionism. Moreover,
it appeared advisable to give at least a survey of trade union
activity and of the trade union movement, if any real idea
of the practical value of legal rights was to be formed. The
first object of the enquiry must obviously be to show to what
extent and by what means freedom of association is actually
realised.
For this reason an attempt has been made to give, for each
country considered, a survey of actual conditions, preceded
by a historical introduction, in order to show how far trade
unions exist, what kinds of trade unions are to be found, and
how they exist. The national legislative provisions are then
analysed, particular attention being paid to the extent to which
the individual's freedom to combine is safeguarded, the conditions
with which trade unions have to comply, both with regard to
their foundation and their existence at law, and the conditions
under which they may be dissolved. Finally, particular attention
has been paid to the conditions governing the activities of
trade unions and the extent to which they may be active and
actually succeed in being active.
These studies, which are contained in several volumes 1 and
furnish the basis for the comparative analysis published in the
first volume, could not be confined to an investigation of the
legislation on trade associations or to general legislation on
1
Vol. I, Comparative Analysis ; Vols. II-V, Studies on the different
countries.
XI
associations. The whole social legislation of the country had to
be taken into account. Even this was not always sufficient, for
certain questions connected with the right of association could
not be dealt with satisfactorily without an analysis of the principles governingthe whole body of law of the country. Moreover,
the application of the law had to be studied, and this involved
collecting and analysing legal decisions with regard to various
statutoiy provisions. This task was not difficult as regards the
great industrial countries and countries with well-established
legal traditions and jurisprudence, where the decisions of the
law courts are fully published. In some other countries, however,
and especially in countries of more recent origin, reliable information on particular cases and decisions of the courts is not
available. The situation is much the same as regards statistics,
and they are therefore employed only where reliable data were
available. An attempt to make an international statistical
survey of compulsory dissolutions of trade associations proved
impracticable with the means at the disposal of the International Labour Office. For many countries even the data concerning the membership of trade unions are quite unreliable. Figures
vary enormously and frequently the only sources available
are the reports of trade unions, which may be of doubtful
value as guide to their actual membership. Here, again, data
were obtainable only for the larger industrial countries, which
possess full social statistics.
It was not found possible to carry out the original intention
of extending the enquiry to all the States Members of the
International Labour Organisation. For some countries sufficient
material could not be obtained, in spite of all possible efforts.
In most of those countries, however, the question of association
for trade purposes has not yet acquired any practical importance,
and their omission will therefore hardly impair the value of the
survey. Generally, more space is devoted in the study to the
larger industrial countries than to the smaller countries, mainly
owing to the greater abundance of available material relating
to the former. The enquiry covers some countries which are
not States Members of the International Labour Organisation ;
for instance, the United States, Mexico, and Russia. . This
extension was considered essential if the report was to give a
complete survey of trade union law in all countries in which
the trade union movement has gained practical importance.
So far as the main lines of the study were concerned, a common
—
XII
—
scheme was adopted for each of the countries covered. Complete
uniformity, however, could not be maintained in matters of
detail. Frequently, the logical sequence had to be abandoned
for the sake of an analysis following actual development, seeing
that the true import of the existing legal system could thereby
be better grasped, particularly in those countries where conditions
present peculiar features. At the same time, the scheme followed
through the enquiry should facilitate comparison between
country and country. In the comparative survey itself, reference
is made only to typical instances ; the analysis would have
become too cumbrous if full reference were made to all the
countries concerned, and this, moreover, was hardly necessary
inasmuch as full details will be given in the separate studies of
national conditions. The number of countries mentioned in the
comparative survey is, therefore, not exhaustive.
It remains to be added here that the International Labour
Office was aided in its enquiry by well-known experts, who
furnished documentary material for their several countries.
We take this opportunity of expressing our thanks for this
valuable assistance.
CONTENTS
Page
v
PBEFACE
INTRODUCTION
The Problems of Freedom of Association and their Origin
A.
B.
C.
D.
E.
F.
G.
Combination for Trade Purposes : Its Origin
The Denial of t h e Right of Trade Combination
The Principle Recognised
Present-Day Problems
Relations between t h e Organisation a n d t h e Individual
The Problem of t h e Relations between Organisations. .
The Problem of t h e Relations between Organisations and
the State
PART
9
9
10
12
13
14
15
16
I
T H E I N D I V I D U A L ' S RIGHT TO COMBINE FOR T R A D E PURPOSES
CHAPTER I : Manner in which the Right
A . Tacit Recognition
B . Recognition by Legislation
CHAPTER I I : Scope of the Recognition.
is Recognised
. .
A . Purposes
B . Persons b y whom t h e Rights m a y be Exercised. . . .
CHAPTER I I I : Legal Effect of Recognition
A . Guarantees with respect to Legislation
B . Guarantees with respect t o Administrating Authorities
C. Guarantees with respect to Private Persons
CHAPTER IV : The Right to Refrain from Joining an Association
19
20
20
21
21
22
23
24
25
25
30
PART II
T H E LAW OF T R A D E UNIONS
CHAPTER I : Formation and Constitution of Trade Combinations
33
A. F u n d a m e n t a l Conditions
33
1. Provisions concerning Individual Members. . . 33
2. T h e Objects of Trade Combinations
39
(a) Trade and Social Objects
40
(i>) Economic Objects
41
(c) Moral and Intellectual Objects
41
(d) Political Objects
41
3. The Organisation of Trade Combinations. . . . 43
(a) Rules
43
(£>) Constitutional Organs
"44
XIV — Page
B.
Formalities
47
1.
Preliminary Formalities
47
2. Formalities in regard t o Administration. . . 50
(a) Compulsory Reports
50
(b) Interference b y t h e Authorities
50
CHAPTER I I : Dissolution of a Trade Combination
55
A. . Voluntary Dissolution.
55
B . Forced Dissolution
56
1.
Compulsory Closing of Premises
57
2.
Suspension
57
3. Dissolution and Withdrawal of R e c o g n i t i o n . . . 57
(a) Grounds for Dissolution
57
(b) Procedure
. 59
(c) Liquidation of Property
60
CHAPTER I I I : The 'Trade Union and the Trade Union Federation 61
A. The Right to Form Federations
61
B . Methods of Forming Federations
62
Conclusion
64
PART III
ACTIVITIES OF TRADE COMBINATIONS
CHAPTER I :
The Conditions governing the Activities of Trade
Combinations
A. Legal Personality
B . The Consequences of Legal Personality
CHAPTER II : Internal Activities of 'Trade Combinations
A. Institutions set up b y Trade Combinations
B . T h e Control of Institutions set up by Trade Combinations
CHAPTER I I I :
The Trade Dispute
67
67
69
71
71
72
74
Section I : The Right to Strike
75
A . Prohibition and Qualified Recognition
75
B . Restrictions on t h e Right to Strike
79
1.
Restrictions/in regard to Persons
79
2. Restrictions arising o u t of t h e Criminal Law . . 81
3. Civil Law Restrictions
83
(a) Restrictions in regard to Strike Objects . . . 83
(b) Restrictions in regard to the Conduct of Strikes 88
(c) Liabilities in Unlawful Strikes
95
Section I I : The Lockout
96
Section I I I : Other Methods
96
A . Black Lists
97
B . Fair Lists, t h e Union Label, etc
98
C. The Boycott
99
XV
Page
CHAPTER IV : Trade Combinations and Collective Agreements . . . 102
A. Nature and Conditions of Collective Agreements
102
1.
The Will to Conclude Collective Agreements
103
2. The Power to Ensure the Execution of Collective
Agreements
104
B . The Position of Trade Combinations as regards Collective
Agreements
105
1.
The Capacity to Make Collective Agreements. . . . 105
2.
Objects and Nature of the Regulations made by
Collective Agreements
108
3.
Legal Consequences of Collective Agreements as
regards Trade Combinations
112
(a) Trade Combinations and the Conditions of
Work laid down in Collective Agreements . . . 1 1 3
(b) Trade Combinations as Parties to Collective
Agreements
115
CHAPTER V : Trade Combinations and Managerial Control . . .
A . Action within the Establishment
1.
Direct Action
2.
Influence upon the Body representing the Workpeople
in the Establishment
(a) Where the Body representing the Wage Earners.
in an Establishment is P a r t of the Trade Union
(b) Where the Body representing t h e Workpeople
in an Establishment is an Independent Institution
B . The Right of Trade Unions to Share in the Management
of Undertakings
CHAPTER V I : Participation
of Trade Combinations in Stale
Activities
A. Preparation of Social Legislation
B . Participation in the Application of Legislation
C. Uniform Regulation of the Participation of Trade Combinations in the Activity of the State
1.
Russia
2.
Italy and Spain
Conclusion
CONCLUSIONS
Addenda
116
117
117
118
118
119
122
122
123
127
132
132
133
135
137
141
INTRODUCTION
The P r o b l e m s of Freedom of Association
and their Origin
The presentation of this portion of the report, which is necessarily of
a legal character, has involved special difficulties, as many of the
legal conceptions which have governed the development of Continental
law and jurisprudence on the subject are foreign to Anglo-Saxon
law and jurisprudence, and vice versa. It is impossible to find
legal terminology in English and French which will render them
equally clear in both languages, but this difficulty*does not arise
to the same extent in the presentation of the conclusions, seeing
that the practical problems to be solved are similar in all countries.
A.
Combination for Trade Purposes : lis Origin
Towards the end of the eighteenth century and during the
course of the nineteenth century the guild system, under the
influence of the French Revolution, and later of the Napoleonic
legislation, disappeared from Europe. In its place arose the
principle of freedom of labour. For a time this principle was
the basis of the economic system.
The early years of the nineteenth century saw the beginnings
of large-scale industry. Its attraction for the mass of unskilled
wörKers was such that the employers, with plentiful labour at
their disposal, found themselves in a position such that they
were able to lay down their own conditions of work. In order
to obtain an improvement in these conditions the workpeople,
who, in spite of their numbers, had no organisation and cohesion,
were forced to make their own arrangements for defending
themselves against the employer, who, as Adam Smith pointed
out, is a union in himself. The method they adopted was that
of organisation.
It is true that, in practically all countries, journeyman
fraternities of long standing already existed, although at times
their inactivity might make it seem that they had disappeared.
As a rule these fraternities were more inclined^to lookjback to
the old guild system abolished by the revolution, and to wish
— 10 —
for its restoration. But alongside these fraternities, governed
by their traditions, limited, moreover, to skilled '^companions'',
other combinations spontaneously sprang up. These new combinations, including skilled and unskilled workers without
distinction, endeavoured to obtain better conditions from employers by means of collective stoppages of work. Later,
under the influence of socialist ideas, the temporary and occasional combination was gradually replaced by a permanent
organisation. The object was no longer confined to obtaining
fòTThe worker a temporary improvement of the situation, but
was, instead, to secure for labour that position in the economic
world to which it considered it had the right. In this manner
the trade unions came into being.
B . The Denial of the Right of Trade Combination
From the very beginning the trade union came into conflict
with the State. It is indeed remarkable that, so far as trade
combinations are concerned, the first reaction on the part of
the modern type of State of liberal tendencies was precisely
the same as that of the monarchy of the ancien régime. When,
towards the close of the Middle Ages, the monarchy arose, it
assumed to itself the right to regulate the conditions of work
of the "companions". The most typical example of this claim
is the famous English Statute of 1562 made by Elizabeth,
which provided for the fixing of wages by the justices of the
peace "in great hope that being duly executed it shall banish
idleness, advance husbandry, and yield unto the hired person,
both in the time of scarcity and in the time of plenty, a convenient proportion of wages" '. As it became stronger, the
monarchy enlarged its pretensions, and claimed for itself the
sole right to create and to control associations of its subjects,
including the guilds. Apart from the State, no other association was tolerated.
Whatever the difference between the old type of guild and
the modern trade union, the attitude of the State towards these
two institutions was at first the same. Like the monarchy
of the ancien régime, the Governments in power during the
period following on the Napoleonic wars refused freedom oj:
association and of assembly to their citizens. Moreover, this
1
This Act remained in force in England until the nineteenth century.
— 11 —
prohibition applied not only to combinations of workpeople»
that is to say, to trade unions, but also to employ^rj^gjio^iations.
for which the need had not yet been strongly felt. The collective stoppage of work menaced the law and order of which the
State was the guardian. It is this point of view that finds
expression in the Preamble to the Prussian Industrial Code
of 1845, part of which reads : "There is certainly occasion to
fear that . . . the combinations of wage earners menace the
existence of factories, are likely to provoke tumults and riots,
and threaten the public security".
After 1830 the States of liberal tendencies, while recognising
the_right of association and of assembly for political purposes,
still refused~tò grant the right of combination for trade purposes.
This attitude can be accounted for to a great extent by the
feeling of mistrust of the trade unions, the fear that they would
disturb the public peace, and commit acts inimical to public
safety. But the chief reason actually advanced to justify
this prohibition was that it was necessary in order to safeguard
liberty. It was pointed out that a form of association having
for its object the improvement of the conditions of labour
would disturb "the free play of forces" and involve restraint of
trade. As Chapelier, the author of the French Act of 17 July
1791, expressed it, conditions of work must be fixed for each
worker by agreements freely arrived at between individual
and individual, and it is then for the worker to keep the agreement which he has made with his employer. This implies
the condemnation and prohibition of all combinations for the
defence of the "supposed common interests".
As a consequence, combination, whether on the part of
employers with the object of reducing wages, or whether on
the part of workpeople with the object of securing an increase
in wages, was held to be a crime and severely punished. This
crime was dealt with in sections 414 and 415 of the French
Penal Code, which had a great influence on the penal legislation
of other countries on the Continent of Europe. By the English
Acts of 1799 and 1800 any agreement designed to effect an improvement in the conditions of labour constituted a conspiracy
in restraint of trade contrary to the law, and parties to any
such agreement were liable to penalties.
Even in the United States, the formation of combinations
and the calling of strikes with the object of increasing wages
came under the law, although in that country freedom of asso-
— 12 —
ciation for political purposes had always been recognised.
Thus, in 1806 a judge in Philadelphia, in addressing the jury,
pointed out that agreement between workers to secure an increase
in wages could be regarded from two points of view : either
they were doing it to secure an advantage for themselves or
else they aimed at injuring those who did not belong to their
union : in both cases the agreement was contrary to the law.
C.
The Principle Recognised
The development of individualism, however, led eventually,
by the strict application of its own principles, to the recognition of the right of combination for trade purposes. The State,
which recognised the right of association and of assembly
in general, could not indefinitely maintain the paradox of
forbidding a certain category of its citizens from combining
and meeting. If, in the name of liberty, it refused to interfere
in economic matters, it must leave to the various economic
factors complete liberty to regulate their own affairs, even if
this led to the formation of combinations. Freedom to work
implied freedom to refuse to work, and what was permitted
to a single individual could not be considered as a crime because
several individuals did it together. Moreover, in reality the
penal measures were often inoperative. Combinations were
set up in spite of these measures and the number of strikes and
lockouts continually increased with the development of largescale industry and the increase in the working-class population.
These circumstances resulted in the repeal of the Acts.jjro.hibiting combination for trade purposes. This repeal took place_
in England iñ 1824,"Tñ~fTie" majority of European countrie.g_in_
the course of the second half of the. nineteenth century, and in_
Russia in the twentieth century.
At first the repeal of the prohibition of combination was,
so to speak, negative in form. It was no longer a crime for
workers or for employers to associate in order to safeguard their
common interests without first of all demanding permission
from the authorities, or for them to decide in agreement to
stop work in order to obtain from the other side some change in
the conditions of work x.
• Subsequent evolution, which is still in progress, has given
1
In reality, so far as the employers were concerned, the lockout had
never been proceeded against on legal grounds in any country, even
when the regulations applying to strikes applied also to lockouts,
— 13 —
this right a certain security and a positive significance. The
problems which have arisen in the different countries as an
outcome of this evolution of the right of combination for trade
purposes are the subject of the present study.
D.
Present-Day Problems
Once the right of combination for trade purposes was recognised, workers were at liberty to combine with the object
of improving the conditions of labour of their members. The
temporary combination developed into the trade union. But
in order to achieve their objects trade unions were obliged to
endeavour to include in their number if not all at least the great
majority of workers, as otherwise their demands would not
be granted by reason of the large number of unorganised workers
who would accept conditions of labour less favourable than those
which the trade union wished to establish.
Confronted by combinations of wage earners whose purpose
was to include the greatest number possible, employers were
driven to combine in their turn in order to defend their interests
against those of the workers. In their case also the same necessity arose of including the greatest possible number, if not the
whole, of the employers concerned, in order to avoid competition
which would render any action on their part inefficacious. Thus,
combinations for trade purposes, whether of workers or of
employers, tended to comprise the majority if not all of the
workers or employers concerned.
In face of this inevitable increase in power the State couhd
not remain entirely__p.assiy.e, since, both by reason of the nature
of their claims and of their organisation with a view to a possible
struggle, the new combinations affected the community and
possibly the public peace.
It is true that legislative action has taken different forms in
different countries, under the influence of their historical
background, their economic situation, and their political structure. The position of the law has varied also at different
times, being dependent upon social changes which may have
been brought about in the course of slow evolution or, as in
certain cases, as a result of sudden revolution. But in spite
of these reasons for difference, the fundamental problems with
which the law has to deal are everywhere the same : it is only
the methods of dealing with them that are different.
— 14 —
To give a general idea of these problems it is necessary to
tabulate the possible alternatives with which trade union law
may have to deal. For this purpose three entities may be
distinguished : the individual, the organisation, and the State.
What are the various possible relations which may exist between
these entities ?
E.
Relations between the Organisation and the Individual
As regards the relations between the organisation and the
individual, only those arising between a trade combination
and persons engaged in that trade — whether between the
employers' association and employers or between the trade
union and workpeople — need be considered. In both cases
it is necessary to distinguish between the relations of the organisation with its members, and the relations of the organisation
with third parties.
The law jiiay consider thajt-the individual rather than the
organisation must be protected, and grant him privileges as__
against the organisation.. This occurred nearly everywhere
after the" repeal of the Acts forbidding combinations, for the
State continued to mistrust organisations which, by their
nature, threatened the existing order, and generally justified
its attitude by urging the necessity of protecting the individual
and preventing restraint of trade. The State may protect
the worker who desires to work as against other workers who
are on strïïté, and the worker who does not wish to take part
in a combination from attempts to make him take part^
It may" accord to members the right to leave..the_ prgajiisafion__ when_ they wish. The organisation may not order jir_
forbid any activity on the part of its members. Under thg£e_
circumstance's the organisation itself is only tolerated by the__
law.
On the other hand the law may confine itself to applying its
general principles to relations between the individual and the
organisation, that is to say, abstainjrom intervening any morg_
than is necessary. In this case the organisation fends to acquire
a certáíiípreponderance for, by reason of its nature, these general
principles^ give it a scope and means of action which aïe moieextensive than those of the individual. In this case the line
«
- . -
. _ , , „ . . - , - .
-
- = »
of demarcation between legality and illegality is not definitely
traceable. In general, it is the judge who, according to the
— 15 —
nature of the case, gives his opinion, which opinion may be
affected by personal or social prejudices.
Lastly, legislation may favour the organisation as against.
the individual by granting to the members of the organisation
advantages which it refuses to others, as for instance by refusing
to individuals who are not members of the organisation privileges which it grants to members. It may even go so far as
to giye_to_ the_ojcgaxi.isation a certain pßwer over those indivi-r
duals who do not belong to it. Legislation may at the same
time impose upon organisations certain conditions which they
must fulfil in order to enjoy these privileges. It is in this
manner that the different problems of (a) the trade combination,
recognised as being in the public interest, (b) the trade combination, recognised as a public institution, and (c) compulsory
membership in a trade combination, severally present themselves.
F.
The Problem of the Relations between Organisations
Examination of the relations between the trade union and
the single employer reveals that, in general, contemporary
legislation regards the individual employer and the employers'
association in the same manner, so far as relations with trade
unions are concerned. In these circumstances the relations,
between, a trade union and a single employer may be considered
as similar to the relations between.prganis.ations.^
1. Organisations of employers and organisations of workpeople.
— To such extent as the two parties represent opposed interests,
the conflict between them is essentially a combat of strength.
The object of the law in this case should be to bring about a
state of approximate equality between the two forces ; or,
when that is impossible, to find some form of procedure (collective agreements or conciliation) for securing an equilibrium ;
or, failing this, to limit or curtail the struggle in the interests
of social peace ; or at least to protect the community. If the
parties are of approximately equal strengthened the object
of the law is to bring about a just settlement, this presupposes
that legislation will not accord to either of the parties privileges
or advantages as against the other. In actual fact it may happen
that the employers are not obliged to recognise the trade unions as
representatives of the collective interests of the wage earners ;
— 16 —
or, to go to the opposite extreme, it is possible that the law
may protect the trade union as against the employer, even
to the length, as in Russia, of putting the trade unions in the
place of the employer. And although in certain cases the law
as it exists may be far removed from the ideal inspiring it,
it cannot be said that freedom of association does not exist.
2. "Mixed" organisations. — It may happen that the law
does not recognise a conflict of interests between organisations
of employers and organisations of workpeople, but on the contrary it has in mind the protection of the joint trade interests
of employers and employed. It then permits organisations
composedof employers and of workpeople or consisting of
a union of employers' and workers' organisations. These
"mixed" organisations may exist at the.same time as those
of the usual type of combination for trade purposes, and in
this case it is necessary to know whether, from a legal point
of view, the existence of the ''mixed" organisation depends on
the will of the employers' organisations and the workers' organisations, or whether, on the contrary, these organisations are
subordinated to the "mixed" organisations. According to
which principle is followed, the law may leave to the organisations
themselves the task of regulating their relations and of organising
themselves as they think fit, or it may intervene to impose
prohibitions and forbid organisations from entering into relations with one another and forming federations.
3 . Competing organisations of workers or employers. —
Lastly, definite legal regulations may be applied to the mutual
relations of workers' organisations and of employers' organisations. This may take the form of preferring one trade
combination to others and granting it exclusive recognition,
possibly regulating its organisation (trade union monopoly) ;
or by regarding all existing organisations as equal before the
law and seeing that the feebler organisations are not sacrificed
to the interests of the stronger organisations (protection of
minorities).
G.
The Problem of the Relations between Organisations and
the State
In the conflict of opposing ideas, the State must place itself
above parties, if for no other reason than to safeguard its own
existence. As already stated, the absolute monarchy refused
— 17 —
a n y real life to organisations, prohibiting combination in any
form. Thejntxodern State, although it has recognised the principle of the right of combination, may none the less maintain
the right of control over these organisations, holding, so to speak,
the pòweF of life and death, and the power to dissolve them
whenever, in its capacity as representative of the community,
it considers that its safety or even its very existence is menaced.
On the other hand, it may take the opposite attitude and make
•over to organisations a part of its own responsibility by incorporating them within itself and allowing them to share, its
administrative, judicial, and legislative power.
Lastly, it may put upon the organisations a part of its own
responsibility leaving them to regulate the questions which
concern them, and if needs be conferring very extended legal
powers ; that is to say, the system of autonomous associations.
Such are the different problems — relations between organisations and individuals, relations between organisations themselves, and relations between organisations and the State —
which everywhere arise in connection with the right of combination for trade purposes and which are everywhere dealt
with along different lines. In almost ^very case the regulations,
concerning them are not contained in a single Act. Being the
result"oFâïï"evolution of varying rhythm, the right to combine
is laid down in a multiplicity of Acts, Regulations, Orders, agreements, and judicial decisions. But in whatever way they may
be dealt with, these problems always fall into the same three
groups briefly considered in the foregoing pages.
In the following comparative study, without dealing specifically with the various methods of regulation which, successively or simultaneously, have been applied in the different
countries, and which are analysed in the national monographs 1,
it is proposed to examine :
(1) Within what limits the individual right to combine is
by law permitted or recognised.
1
In the course of this international survey a large number of
particular instances are cited. It should be made clear, however, that
these instances are given merely as examples. Similar instances in
other countries, omitted here for the sake of brevity, are to be found in
the monographs on each country to be published by the Office. All
that is attempted here is a summary of law and practice ; the complete
.account must be. sought in these national monographs.
2
— 18 —
(2) Within what limits trade combinations resulting from
this right to combine are permitted to exist, i.e. the
legal measures governing the formation, existence, and
dissolution of trade combinations.
(3) Within what limits trade combinations may take action
for the purpose of achieving their ends.
In this way it will be possible to compare for the different
countries all the forms of existence and methods of action a t
present allowed by the various national laws to permanent
combinations for trade purposes.
PART I
THE INDIVIDUAL'S RIGHT TO COMBINE
FOR TRADE PURPOSES
CHAPTER I
MANNER IN WHICH T H E RIGHT IS RECOGNISED
The right of the individual worker or employer to combine
with other workers or employers may be recognised by the
law in different manners : either explicitly by the Constitution,
or by ordinary Act of Parliament, or implicitly by custom,
or because it may be considered as a principle underlying the
legislation on trade combinations.
The reasons for this are chiefly historical. The liberties
of the citizen have not been recognised by the State in all
countries in the same way ; in many cases they have been won
as a result of hard struggles. In some countries recognition
of these liberties was tacitly acquired in the process of evolution
of the law. In others the liberties were formally recognised,
being laid down in an official document and considered as
supreme law. Such, for example, in the national sphere, was
the Declaration of the Rights of Man in France, and in the international sphere the Labour Charter contained in Part XIII of
the Treaty of Peace.
Society may develop peacefully or may be subject to violent
upheaval. Each of these forms of development, evolution and1
evolution, affects in a different way the development of the
law in particular countries.
Thus the Acts which in the various countries recognise
the right to combine for trade purposes reflect the political and
social history of the country in question.
^
— 20 —
A.
í4a(£c¿fiw
.¿•LVÍJÉM
Tacit Recognition
The right t o combine for t r a d e purposes is tacitly- recognised,
for example, Ui_Monvqy and ^jm^ejTj where freedom of association is a natural consequence of t h e general liberty enjoyed
b y t h e people since time immemorial ; b u t t h e position of
these countries is exceptional.
B.
Recognition by Legislation
(a) The right of association in general. — The right t o combine for t r a d e purposes is, from its very nature, an element
in t h e general right of association. Thus, in several countries
,.- -0sf R i a
whose Constitution expressly guarantees certain fundamental
e, ,jf>,
rights, including t h e right of association and of assembly, t h e
..'.' t
right t o combineTöFirTde purposes is inéluded iiTthese rights.
.<\ v/
Thus, jji Austria^, Belgium,
Chile, Denmark, Italy,
Japan,
¿hem
Lithuania, Netherlands, Poland, Spain, Switzerland (Confederakr<;:Drtnit? ^ tion and various Cantons), Venezuela, a n d m a n y other coun)-,"''k'"';..'>|S>J tries, t h e Constitution guarantees t h e right of association a n d
•;•(''//_[
of assembly, and consequently the right to combine for trade
7:'j-í¿ . „<,„ purposes. In Latvia the right of association is recognised by
•• ,rr i M - S ï a i S 9 ^ - ! ^ 8 -°S_§L S ? 0 9 a ^9 ns - * n Belgium it is not only
f
" •"•'••• recognised by the Constitution, but by ordinary Acts of
Parliament on the matter. .
(b) The particular right to combine for trade purposes. —
It has, however, already been seen t h a t originally in m a n y
countries t h e general right of association did n o t necessarily
include t h e right of employers and of workpeople t o combine
for t r a d e purposes. The latter right t h u s came t o be considered
a^ñindam^ntaljdght^, independenf of I h e general right of assort
j
ciation and assembly. This idea has found expression in certain
(Cuf«o
modern Constitutions — for example, in those of Germany,
W>-i.
Poland, t h e Serb-Croat-Slovene
Kingdom, and Czechoslovakia.
Augnici A similar distinction is found in Australia, France, aïïïï" Great
fn**i<4- Britain, if n o t in t h e Constitution, a t least in t h e special Acts
«^,
dealing with trade unions wmen are based on rec5g"ñ"ifion of
(•<H\\.\¿, ^ e right t o combine for t r a d e purposes. In Brazil a n d Chile,
where t h e right of association is guaranteed b y t h e Constitution, t h e right t o combine for t r a d e purposes is further guaranteed
b y special trade union legislation.
— 21 —
CHAPTER II
SCOPE OF THE RECOGNITION
The fact that the right to combine for trade purposes is
regarded as more or less independent of the general right of
association is chiefly evident from the manner in which these
rights are recognised in practice, both as regards the purposes
for which they are conceded and the persons by whom they
may be exercised.
A.
Purposes
The general right of association is in the majority of cases f^z-ftf. &
guaranteed for all lawful purposes. This is the case in Austria, &^VJ;>^K
J3dgium,^Denmark, Germany^ Japan, Latvia, the Netherlands,J?gHHft<fvC
Switzerland, etc. Where, however, the right to combine for ftn?^*^
trade_p_urj)oses is specially^j^c^gnisgd^jjie purposes for which J-flA*1^
such combination is permittedare¡laiddown_more definitely. . V^-n'^"
The making of combinations illegal meant that employers
were forbidden to combine in order to cause a rise in prices
or a reduction in wages ; it also meant that workpeople were
forbidden to combine in order to obtain an increase in wages
or, in general, an improvement in their working conditions.
The legalising of: combination^ fo_r_the_aj3joye,pjirposes meant J h e
recognition of the right of employers and_jof JvorjkJBSojpJe^tP.
combine for purposes which had j)reviously^een_fpjrbidden.
This is the sense of the British Act of 1824, the German Industrial Code (section 152), and the provision in the Constitution
of the Serb-Croat-Slovene Kingdom to the effect that "the
right of the workers to combine for the improvement of labour
conditions is guaranteed". The German Constitution even
guarantees explicitly the right of association "for the defence
and improvement of labour conditions and economic conditions".
In practice, however, the nature of the aims which may
actually be pursued by trade unionists in each country depends
in generalj)n trade union_ law itself, that is to say, on the aims
which the trade combination is entitled to pursue. This
question will be dealt with further in Part III of this Report.
— 22 —
B.
Persons by whom the Rights may be Exercised
The persons whose right to combine for trade purposes
is expressly recognised vary according to whether such right
is guaranteed separately or simply included in the general
right of association.
(a) Nationality. — The Constitutions of certain countries
guarantee explicitly the right of association only to subjects of
the country concerned, as part of their "political" liberty
(these countries have been referred to above).
The question whether this distinction has legal consequences,
whether it involves the refusal to foreigners of the right of
association conceded to subjects of the State concerned, or
whether this right is simply conceded de facto in the case of
foreigners without being legally guaranteed, is a question of
interpretation 1.
In countries where the right to combine for trade purposes,
is specially recognised, no distinction is made in principle between
subjects of the country concerned and foreigners, but it will
be seen in Part II of the Report 2 that certain Trade Union Acts
impose considerable restrictions on foreigners, thereby indirectly
restricting their individual right to combine for trade purposes.
(b) Position of the individual. — The right to combine
for trade purposes, even where formally recognised, may vary
according to the position of the individuals to whom it is granted.
Thus, the provision, already quoted, in the^C£nstitution_ ofthe
Serb-Croat-Slovene Kingdom concerning the purposes for which
workers may combine guarantees expressly the right of association in the case of the workers only. Article 16 of the Russian
Soviet Constitution grants it only to workers and peasants.
In Germani], Poland, and Czechoslovaìda the right to combine
for trade purposes is guaranteed in Very broad terms^ : the
German Constitution even makes special provision for the
right of association of officials.
Consideration will be given later to the restrictions which the
law may place on the exercise of the right, particularly in the
case of founders and members of trade combinations.
1
2
This is a controversial point in the case of Switzerland for example
See p. 34. r
— 23 —
CHAPTER
III
LEGAL EFFECT OF RECOGNITION
The extent to which the right to combine for trade purposes
can be held to be recognised depends on the legal effects of
recognition.
If legal recognition is a consequence of legislation on associations or trade combinations, the detailed provisions of the
law indicate clearly the legal effect of the recognition ; but the
position is different when the right is recognised by the Constitution. The question then arises of defining exactly the rights
and obligations resulting from such recognition, and the reply
to these difficult questions depends on the interpretation of
the constitutional law of the various States.
Such legal recognition by the Constitution^ mayjcqnfer neither
rights nor obligations. This is the case where recognition of
the right is merely set forth as a guiding principle, and not
formally laid down as a binding rule. In this case the principle is set forth for the guidance of the legislating_authority,
but if this authority_is_conside,rpd as t.hp. sovereign, that is to
say, the embodiment of the supreme power, it has to account
to no one for the exercise of its sovereignty \ and the principle
set forth in the Constitution is thus only morally binding on it._
If, on the other hand, recognition of the right is embodied in
actual laws which bind the legislating^ authority 2, the latter
could only dej^r^frpm constitutional principles by amendment
of the Constitution. The value to be attached to the provisions
of the Constitution is, however, in many cases the subject of
controversy 3 .
Recognition of a fundamental right in the Constitution should
ensure the protection of the right by the law — in this case, the
protection of the individual's liberty against abuse of authority
Ly the State, and, above all, against abuse of authority by the
legislating and administrating authorities.
•.
1
This is the case in Great Britain.
2
This is the case under the Constitution of the United States.
3
See, for example, in French law, the controversy between Messrs.
Duguit and Esmein as to whether the Declaration of the Rights of
Man is a constituent part of French law at present in force. (Most
writers hold that it is not.)
— 24 —
A.
Guarantees with respect to Legislation
The question whether express recognition in the Constitution.
of the right of association or the right to combine for trade purposes ensures the individual protection against legislation restricting these rights, and therefore contrary to the Constitution,
leads in practice to the larger question, to what extent it is
possible in a particular country to test whether an Act is constitutional, and to nullify an unconstitutional Act. Without such
a possibility the protection would be without value. On
this fundamental but difficult question of constitutional law
the following brief statement will be given here.
In all countries it is possible to test whether the regulations
which the a_dministrative authorities (generally the Government
Departments) enforce under mandate from the legislative
authority with regard to a certain matter are in agreement
with the law and Constitution of the country, and to demand
that any regulations which are contrary to the law and Constitution shall be declared null and void on that ground. They
may even be considered so as soon as they have been recognised
as being unconstitutional. The position is, however, otherwise
as regards decisions of the legislating authority, the laws
themselves. In such cases it is not possible in all countries
to test whether the measures in question are constitutional 1 .
Such a possibility exists in the United States 2, where the Federal
Supreme Court 3 , in case _of__djsp_ut_ei may declare an Act null
and voidUif it is. held to be contrary_to 1^he_(^nsütution. In
other çffses, the Jesting of^ the legality of an Act can only be
done HI a special Court, under a special procedure. This is the
case in Austria and in Czechoslovakia. In many countries,
however, it is imposjiMejtûJiatiJieJjegalilY,oJ^Acts_i for example, in Belgium, Canada, France, and Poland. From the development of legislation in Great Britain it may be concluded that the
position is the same in that country. Moreover, even in countries where it is possible to test the legality of an Act, there is
always a presumption in favour of validity, and the contesting
of an Act is considered an exceptional procedure.
1
It is in all countries possible to test whether the proper form of
legislation has been observed.
2
The same is the case in Argentina, Australia, Brazil, and the IrishFree State.
3
Or the Supreme Court of a State where the question is whether a
State law is contrary to the Constitution of that State.
— 25 —
B. Guarantees with respect to the Administrating Authorities
Legal recognition of the right to combine for trade purposes
is also important as constituting a guarantee with respect t a
the administrating authorities. The latter may not interfere
with individual liberty without authority of the law. This
is the fundamental principle of modern law. Any administrative act which violates this principle is null and void. Here
again the practical value of this fundamental principle lies in
the guarantees which it provides, especially since an administrative act may directly affect the ordinary business of life,
and have important consequences, even if it has no legal validity.
A detailed study of this fundamental problem of administrative law would surpass the limits of the present study. It is
only possible to mention the following points.
The most interesting question is how it is possible to_ erui
in the best and quickest manner a situation created by an
administrative^act contrariato thejaw^ There are three possibilities : administrative procedure, application to administrative courts, or application to the ordinary courts. The lastnamed procedure is adopted in Anglo-Saxon countries, the second
in most countries of Continental Europe. Nowadays recourse
to higher administrative authority is an exceptional measure.
The practical value of the procedure employed depends
in its turn on the guarantees attaching to it. It is unnecessary
to emphasise the fact that application to independent judges
affords more guarantees for an objective decision than application to administrative authorities dependent on other higher
authorities 1.
C. Guarantees with respect to Private Persons
Thus the right to combine for trade purposes, like other
fundamental rights, may be protected against State authorities ; but this right of trade combination differs from other fundamental rights, in particular the general right of association,
in that it may be threatened not merely by political forces
but by social forces, that is to say, the freedom of the weakest
1
It may-thus be of practical interest to know whether the right of
association is guaranteed to foreigners de jure or simply de facto ; in the
former case there is a means of redress which does not exist in the latter
case.
— 26 — .
•class of the community is threatened by the strongest class.
The guarantees which have been mentioned so far constitute
no protection against these social forces ; special measures are
adopted to afford the necessary protection.
From the point of view of law, the question is the following :
t o what extent is the right of combination for trade purposes
protected against restrictions imposed by individuals ? From a
theoretical point of view, here, as elsewhere, the point at issue
is the freedom both of employers and of workpeople, but in
actual fact it is in most cases the latter who are the weaker
and possibly in need of protection against employers, or even
against other workpeople.
Two kinds of acts may be distinguished against which the
worker's right to combine for trade purposes may require
protection : first, acts committed by one party, such as the refusal
to engage, or the dismissal of, a worker because he is a member
of a trade union, strikes, black-listing, or similar measures^1
taken in order J o obtain the dismissal of a worker ; next, acts
to which both employer and employed are parties—for example,
the inclusion in a contract of employment of a sJ;ij)^lation_tp
t h e effect that the employee undertakes not to belong to
a trade union, that is to say, not to join a trade union, or, if
he is already a member of a trade union, to resign. Such acts
restrict the right of combination ; they forbid the exercise
of the right. It may therefore be asked whether such acts
are valid in cases where the right of combination is recognised.
The provisions of the Italian Act and the Russian Act,
according to which recognised trade unions are the legal representatives of all workpeople, whether members of the trade
union or not, preclude the legality_of such acts. In Russia
they would also fall under section 134 of the Penal Code, as
impeding the lawful acts of trade unions and infringing their
rights.
In Czechoslovakia and Germany a quite general provision
for the protection of the right to combine for trade purposes
has been inserted in the Constitution itself as a complement to
the formal recognition of the right. In Germany, alLmjasureß
and agreements restricting the indiyidual'sjiberty are declared
illegal. The provision in the Czechoslovak Constitution^ merely
•declares any such restriction illegal, without reference to the
For strikes, black-listing, etc., see especially pp. 83 et seq.
— 27 —
legal consequences of any breach of the provision. In the
case of Germany reference should also be made to a provision
of the Works Councils Act, according to which the works
councils are empowered to intervene in order to safeguard the
right of combination of workpeople.
In many countries legal sanctions have been laid down
against measures of constraint which restrict the free exercise
of the right to combine for trade purposes 1. Under section
1 of the Czechoslovak Act of 11 August 1920, constraint (with
consequent possibility of penalty) exists, generally speaking,
when an employer takes advantage of his position to force an
individual, in defiance of the law, to do or to refrain from
doing any, açt^_Unde£,.the~jMytqn.Açt,of 24 May 1921 the
threat to cause a worker to lose his employment exposes the
Egrjoji^oncernedJ;.^ the same penalties as actual acts_ofJlorce_
and violence.
Force, or any other illegal pressure exercised to prevent
workers from forming trade unions, is declared illegal in Belgium,
Roumania (Act of 24 May 1921, section 2, II), and Brazil
{Decree of 1906).
Dismissal of employees and other similar measures are
expressly forbidden in the following countries :
In Belgium the Act provides penalties against any person
who, with intent to attack freedom of association, makes the
conclusion, the execution, or even (with due regard to customary
notice) the continuance of a contract of employment or service
conditional on the individual not belonging to an organisation.
In Greece, section 23 of the Act of 21 June 1914 makes it
illegal for employers to discharge or threaten to discharge
workers in order to prevent them from forming or joining trade
•unions, or to oblige them to join particular organisations.
The Act does not specify the consequences of a contravention
of these provisions.
In Roumania, section 53 of the Act of 14 May 1921 imposes
fine or imprisonment (or both) on any person who, by violence,
threats, refusal to employ, or by promises or inducements
which can be proved to have been given, interferes with the free
exercise of the right of combination by preventing persons
1
Or are intended to compel persons to join a trade combinationi
On this point, see p. 30.
— 28 —
from joining a union, or obliging them to resign from a union.
The Act also reserves the individual's right to damages.
The legislation of the Commonwealth of Australia, Western
Australia, and Queensland provides a penalty against any employer who dismisses any employee from his employment or
injures him in his employment or alters his position to his
prejudice by reason merely of the fact that the employee is an
officer or member of an industrial organisation which has applied
for registration. Similar penalties are provided in the event
of an employee ceasing work because the employer is an officer
or member of an organisation. In Queensland, it is also made
illegal to refuse employment to any person because he is a.
member of an industrial organisation *.
In Austria, Czechoslovakia, and Germany the Acts on Works
Councils give positive protection to the worker dismissed for
belonging to or taking part in the activities of a trade union
by making provision for appeal to a labour tribunal or similar
body, which may order the employer to re-engage the workman,
or, in default thereof, to pay him an indemnity.
The inviolable character of the right of çombipatjonJsjec.ogJa¿SEíLin JDenmcuj£^^^wejlen^ not^by the law^but by a coUgfitjye
agreement between employers'__ and ^workers^ ^rganisaüoiis.
The collective agreement concluded in Sweden stipulates in
particular that a worker who is dismissed may require his
organisation to carry out an enquiry with a view to annulling
his dismissal if he believes that the dismissal took place under
circumstances which may be considered as a restriction of the
right of combination.
In France, many courts hold, in accordance with common law,
that the dismissal of_a worker solely because he belongs to a
union or has taken part in the founding of a union contrary to
the wishes of the employer is an illegal act or an abuse of the
right of dismissal entitling the worker to an indemnity.
The Belgian^and Czechoslovak Acts, and the collective agreements of the:Nj¿rthern Countries, implicitly make it illegal to_
make the conclusion of a contract of employment dependent
oil the person concerned not belonging to any organisation or^
not belonging to a particular organisation. This provision
1
Commonwealth of Australia : Conciliation and Arbitration Act»
1904-1911, section 9. Western Australia : Industrial Arbitration Act,
1912, sections 107-108. Queensland : Industrial Arbitration Act of
18 December 1916, amended by Act of 28 August 1923, sections 67-68.
— 29 —
is explicitly stated in the Acts of Germany and Greece. In
France, on the other hand, the courts have held that the right
of association may be renounced by contract.
Many countries, for example, Great Britain, Canada, the Netherlands, Switzerland, and the United States, do not protect the
right to combine for trade purposes to the same extent as the
above-mentioned countries. This is because of the respect
in which individual liberty is held in the countries in question.
In_ the United States in particular, Federal and State Acts
intended to protect the worker's right of combination Cas against
the employer) havgjbeen declared unconstitutional byjjhe: Federal
Supreme Court as depriving the individual of liberty and property without due process of law (5th and 14th amendments to
the Constitution *).
It must be recognised that difficulties may arise in the practical application of these protective measures. Thus, in Belgium,
the case must be one in which with intent to attack the right
of combination the conclusion, etc., of the contract of employment
is made conditional on the person concerned not joining an
organisation. In_ Roumania, it must be shown _that„ the ire.e
exercise_of the right of combination is impeded by the refusal^
t o employ, etc. In France, it must be shown,that.the fact that,
the person concerned belonged .to the union was.the„soZe reason
for th^^ismjssaL, It may be extremely difficult to prove
that the fact that the person belonged to a union was the cause
of his dismissal, and it may seem easy to evade the law by
maintaining other reasons for dismissal 1 . Particular interest
therefore attaches to the clause in the Australian Acts providing
that the defendant must, prove that he was not actuated by
the motives alleged, that is to say, that he did not dismiss
the employee or cease work because the worker or the employer
•concerned was a member or official of a union.
1
Adair v. Un. St., 208 U.S. 161, 1908 ; Coppage v. Kansas, 236
U.S. 1, 1915.
1
It was for these reasons, among others, that in Switzerland a Bill
making it illegal for owners of factories to refuse to allow their workers
to exercise the right of combination was not passed. The same happened
in France.
— 30 —
CHAPTER
IV
T H E RIGHT TO REFRAIN FROM J O I N I N G
AN ASSOCIATION
Protection of the right of association may conflict with individual liberty. The latter may be construed as liberty not to<
associate, and as such may be opposed to freedom of association»
When the principle of trade unionism was first enunciated,.
the legislating authorities endeavoured to ensure all possible
guarantees for individual liberty, and freedom to refrain from
joining an association was at that time considered as implicit
in the doctrine of freedom of association. Even at the present
time the right to refrain from joining an association is specially
and explicitly guaranteed in many countries, including Brazil
(section 5 of the Decree of 1907), Japan (Public Peace Act of 10'
March 1900), and Hungary (section 152 of the Industrial Act of
1884). The Chilean Act of 8 September 1924 on trade unions
explicitly states, in section 28, that trade unions are forbidden.
to commit acts in restraint of individual liberty, the freedom.
to work, and the freedom to carry on industry.
In countries in which the right of association is specially protected, such protection generally covers also the right to remain
outside of an association. This is the case in .BeZffi'um (Act of
24 May 1921), Greece (Act"of 21 June-4 July 1914), and Roumania
(Act of 24 May 1921). In Germany, the question is a controversial one (section 159 of the Constitution). For the abovementioned countries, and for those in which the law does not
explicitly protect the right to refrain from joining an association \ the study of trade union law will show how the interests
of the individual and of the union are reconciled in each case
and how the liberty of the individual with respect to the union
is indirectly protected through the limitation of the liberty
of trade unions 8.
1
In this case it is possible, according to circumstances, to apply otherprovisions of common law.
2
S«e, in particular, p. 37.
PART II
THE LAW OF TRADE UNIONS
The practical exercise of the right to combine leads to the
formation of an organised body — the trade combination.
The legal principle of freedom of association is thus embodied
in the law governing such, and the extent to which the right
of association is secured in the various countries can only
be shown by a study of trade union law. Such a study must
be restricted to the law governing associations which are, for
every-day purposes, considered as trade combinations, i.e. organisations the main object of which is to maintain or improve the
conditions under which their members operate 1 . All other associations, including associations which, by whatever name they
may be called, exist merely for the protection of the economic
interests of their members, may be left out of account, as theproblems to which they give rise are foreign to the questionai present under consideration. The same applies to associations
which, though incidentally fulfilling functions of trade combinations, exist primarily for the pursuit of other objects, e.g.
craft guilds, both voluntary and compulsory, in Central Europe ;
works councils, etc. ; chambers of commerce, and other similarbodies.
Trade combinations must in turn be distinguished from:
their own federations and confederations on the one hand,.
and their branches and local offices on the other. In so far as
special legal provisions exist governing federations, confederations, branches, and local offices, they are treated separatelyin the present study, though always in close relation with trade
union law in the strict sense.
Trade combinations are governed by special legislation in
Australia, Belgium, Brazil, Chile, France, Greece, Great Britain,.
India, Italy, Poland, Portugal, Roumania, Russia, and Spain..
'This is not intended as an exhaustive definition, but merely as.
an indispensable limitation of the subject matter.
— 32 —
They are subject to the ordinary law governing associations
in general in Argentina, Austria, Czechoslovakia, Denmark,
Estonia, Finland, Germany, Hungary, Japan, Latvia, Lithuania,
t h e Netherlands, Norway, Sweden, and Switzerland.
The importance of this distinction must not, however, be
exaggerated, as the special legislation, where it exists, does
not necessarily govern all the legal aspects of combination for
trade purposes, or all trade combinations. Thus, in France
the laws on hours of work, collective agreements, etc., contain
provisions quite as important in regard to the legal situation
of trade unions _as the Trade Union Act of 1884 itself ; while
a n attempt to define the position in the various countries of
trade combinations which do not comply with the provisions
of the special trade union law would bring to light a number of
cases in which the trade union law does not cover all trade
•combinations.
In Italy and Roumania, for example, the law mentions "de_
facto" combinations, as opposed to "recognised" combinations. In Belgium, France, Greece, Poland, Portugal, Russia,
and Spain, such combinations are governed by the ordinary
law of associations. In Great Britain the¡Trade Union Act of
1871 legalised, and thus provided for, the recognition of trade
•combinations which had previously been regaTded_as_unlawful_
at common law. Trade combinations are therefore only
exempted from the provisions of the Trade Union Acts in so far
as they are lawful at common law, and where not so lawful
they are governed by those Acts, in so far, of course, as they
are covered by the statutory definition of trade unions.
In practically all countries in which the trade unions are
.governed by the ordinary law of associations, they are also_
required to comply with certain special provisions applicable
to trade combinations 1, _or, where no such formal provisions
have been enacted, the law may be supplemented by the provisions of the rules of the trade unions themselves which, in
many cases, possess to a considerable extent the force of law.
It would be out of place, in a comparative international
study, to attach special importance to the precise nature of
the law governing trade combinations. It is thought better
to study the actual contents of the law itself without devoting
particular attention to its form or theoretical nature. It
1
See especially Part III, on trade union activities.
— 33 —
is also thought advisable to treat separately the law concerning
the formation and structure of trade combinations and the law
concerning their activities. The former is dealt with in this
Part and the latter in Part III.
CHAPTER I
FORMATION
AND
OF T R A D E
CONSTITUTION
COMBINATIONS
It will not be possible within the limits of this Chapter to
supply a complete account of the law on the subject. A special
endeavour will, however, be made to classify the various legal
provisions which, in practice, may be regarded as involving
restrictions on the right to combine for trade purposes.
The Law governing the formation and constitution of trade
combinations lays down the conditions which a combination
must fulfil in order to exist at law. These conditions may be
subdivided into fundamental conditions and formalities.
A.
1.
Fundamental Conditions
Provisions concerning Individual Members
The first group of fundamental conditions relates to individuals
who may become members of a combination.
The existence of a trade combination is in many cases conditional upon a minimum membership. In Italy recognised
combinations of employers must consist of members who
employ not less than one-tenth of all the workers j j ^ p a r t i cular branch of industry in a particular district, while recognised
combinations of workers must include not less than 10 per cent.
of the workers in a particular branch of industry in a particular
district^ Ä minimum membership is also required in Greece.
In several countries legal restrictions exist in regard to the
nationality of members of trade combinations. A further
distinction must be drawn in this connection between founders
and ordinary members. In Eslonia, Hungary, Itali], and Latvia
only nationals of those respective countries are permitted to
form trade combinations. In Estonia and Latvia all aliens, and
3
— 34 —
in Itali] only aliens who have resided for not less^than^ ten
Years_Jn the country, may join trade combinations founded
by nationals. In Hungary aliens may participate only in the
friendly society. and „ social insurance branches of the trade
unions, and are not entitled to full membership rights. In the
French colonies alien workers engaged as immigrants are not
entitled to join trade unions.
The right to found or to join a trade combination may be
subject to restrictions according to the social status or the profession of the individual concerned. Thus in Russia an employer
is not allowed either to found or to join a trade combination.
A further question, which has arisen from time to time in
most countries, is that of the right of employers to join workers'
organisations and vice versa, i.e. that of mixed combinations.
Such combinations are, under the statutory definition, definitely
regarded as trade combinations in Chile, France, Hungary,
and Roumania. In Brazil combinations whose object is to
secure the peaceful settlement of dispute^£e^xpiiçitly_reçognised as trade combinations. In Brazil, France, Greece, and
Spain landowners, farmers, and p ^ s ^ n t s _ j r ^ y _ b ^ ^ e r n b e r s ^
of the same agricultural trade combinations. However, as
the objects pursued by the latter are economic rather than
social, t h e y a r e not rgcogiiised_a^ trade unions. The existence
in Italy of liaison organisations including both employers and
workpeople presupposes the existence of employers' and
workers' organisations, membership of which is open only
to employers and workpeople respectively.
As regards the occupation of members, in Brazil, Chile *,.
France, Greece, Italy, and Roumania members of trade combinations must by law belong to a specified trade or occupation.
In Russia the trade unions consist of workers without distinction as regards occupation. In Italy the law prescribes t h a t
manual workers and intellectual workers may not be members^
of a single trade combination, even where they are employed
in the same undertaking.
In Chile workers in a single undertaking form independent
organisations. In the Serb-Croat-Slovene Kingdom the Workers*
Protection Act requires all members of a trade combination
to belong to an undertaking of a kind" specified in the Act.
1
In Chile, a worker who for more than six months has not worked
in the industry for which his trade combination was formed loses the.
right to membership.
— 35 —
In some cases persons belonging to particular vocational
groups are not permitted to found or join trade ^ojmbmations.
Agricultural workers, whose right of association was in many
countries, prior to 1918, subject to greater restriction than that
of other workers, have now been placed upon practically the
same footing everywhere, in accordancewith the terms of the
Draft Convention adopted by the 1921 Session of the international Labour Conference 1. At the present day persons engaged
m a liberal profession are in no country prohibited from forming
combinations, but it remains to be decided whether such combinations are or are not trade unions. In the Serb-CroatSlovene Kingdom the Workers' Protection Act_ does not cover
_such combinations. On the other hand, associations of persons
engaged in a liberal profession are regarded as trade unions in
Brazil, France, Itali], and Roumania.
The position is quite different in a considerable number of
countries as regards persons engaged in occupations the exercise of which is regarded as directly affecting the public interest,
and also as regards civil servants.
The dividing line between the two groups is not clear ; thus,
transport workers, and particularly railway workers, post office
workers, etc., may be civil servants, or be so regarded. Even
in some countries in which such workers are not regarded as
civil servants, their rights are subject to special restrictions.
Thus in Spain, under the Decree of 3 November 1920 (Province
of Barcelona), they are allowed to become members -only of
special trade combinations. The Italian law specifically does
not apply to workers in the public services and social institutions. The administrative Order issued for the purpose of
giving effect to this law prohibits workers on the State railways,
in the post office and telephone and telegraph services, in a
number of banks, in^ the payings institutions and institutions
subsidised by the State, and in autonomous municipal services
from joining the ordinary workpeople's unions. In Chile,
JIungary, Italy, and Roumania public officials may^noj. be
members of trade combinations. In France public officials
may form unions, but such unions are not regarded as trade
unions., This reservation, however, applies only to higher
administrative officials. The position of managerial officials
1
INTERNATIONAL LABOUR O F F I C E : Technical
Report on
Agricultural
Questions. Geneva, 1921. Draft International Convention concerning
the Rights of Association and Combination of Agricultural Workers.
— 36 —
is regarded, in Government and judicial practice, as similar to
that of private employees ; and, in accordance with a Bill
approved by the Labour Commission of the Chamber of Deputies, associations of public officials are assimilated in all respects
to unions constituted under the Act of 1884.
In a number of countries public officials are not permitted
to join combinations whose rules provide for the eventuality of
a strike ; e.g. in Switzerland a provision in this sense is inserted
in the Draft Regulations for Public Officials, which has been
submitted to Parliament.
Public servants in the axmed_forces and the police are, in
virtue of the special discipline to which they are subjected,
either entirely prohibited from joinings ojrtojrúng such combinations, or, where this is not the case, are only allowed to form
them subject to. considerable restrictions. Thus in Great
Britain members of the police f orce^ may not jçjnjtrade cqm-_
_binatio_ns other than the Police^ Federation set up under the
Police Act, Ì 9 1 9 .
" "'"
"
Further restrictions on the right of combination are involved
in the provisions of the ordinary or common law, e.g. in the
case of young persons and marriefl women. Young persons are
not permitted to join trade combinations in Italy (minors),
Hungary (apprentices and minors), and Belgium ¿young persons
under 16 years of age — Act of 1898). In Belgium (Act of
1898), Chile,_ Estonia, and Latvia the law specifically provides;
that young persons shall not enjoy full trade union rights.
The extent to which a minor requires the permission of his
legal representative in order to join a trade combination is
determined by the provisions of the civil law. In Belgium *,
Chile, and .France the law specifically overrules the incapacity
of married women at civil law to j^)in trade combinations.
Lastly, a member of a trade combination may be required
to fulfil conditions of a strictly personal character.
The view is generally taken that the right of combination
involves the right of any individual possessing it to join whatever
combination appears best to suit his requirements, according
either to his political or religious convictions or to any other
moral or intellectual consideration. A logical consequence
1
Under the Act of 1898 concerning trade combinations, the husband
could object to his wife's joining a trade union.
— 37 —
of this view is that all combinations, in so far as they genuinely
comply with the legal conditions applicable to the formation
of trade combinations, should enjoy equal treatment. In_
Italy, however, the law provides that any person desiring to
join a legally recognised trade combination "shall be of good
moral and political conduct from the national point of view".
"Where an application for membership is refused on such grounds,
the law provides (in addition to the ordinary statutory procedure) that the individual concerned may address a complaint
jx> the Minister of Corporations. Besides the right to membership the legal effects of membership may also be subject to
restriction, for the purpose of enabling the legislature more
effectually to protect either the existence of the trade combination or the liberty of the individual member as regards
the combination.
A whole group of provisions of this kind deals with the coercive measures which may be employed with a view to obliging
members to carry out the obligations arising out of their contract
of membership, especially the payment of contributions and
fines, or with the limiting of such obligations. In Germany,
under subsection 152 of section ii of the Industrial Code, a
member of a trade ^combination may not be subjected to any
coercion whatsoever with a view to forcing him to fulfil his
obligations to the combination 1. In Great Britain no action
may be brought with a view to the "direct" enforcement of any
agreementconcerning a payment to be made to a trade union
or concerning the employment of the funds of the union 2.
A similar provision is contained in the Belgian Act of 1898.
The Belgian Act of 1921 provides, however, that in virtue of
his declaration of membership a member accepts the rules of
his trade union and any decisions taken or penalties inflicted
in virtue thereof. In Greece no fine may be inflicted by a
workers' trade union to an amount exceeding three days'
wages. In Italy, on the other hand, all persons belonging to a
trade or profession^ and rejpjesented by the recognised trade
combination are jobligeaM;o p§XJ^^iJ^utiqns whether or_no_
they are members of the combination. The^annual contribution for wage earners amounts to one day's wages and for
1
The prevalent legal opinion now considers that this clause is'repealed
by Article 159 of the Federal Constitution.
2
Trade Union Act, 1871, section 4. This provision does" nqt^ apply
to unions-which are lawful at commorTlaw". '
— 38 —
employers to the total wages paid by them to all workers in
their employ for one day's work. Contributions may be collected in the same manner as municipal rates. In Hungary
the "contribution must be approved by the Minister. If, under
the rules of the combination, the amount of the contribution
is fixed by the general meeting of members, the meeting's
decisions must be similarly approved. None of the constitu-^
tignai organs_ of^ a combjnation mayJ.nflic^j^Jine^ Payments
for other purposes than those provided for under the rules and
officially approved are prohibited. In France a member may
be required to pay damages in respect of breaches of trade union
discipline.
In a number of countries members of a trade combination
are not as suchjsubjected to special regulations, but are treated
in the same way as members of any other association. This
is the case in the Scandinavian countries, the Baltic States,
Austria and the Succession States of the former Austro-Hungarian
Empire, andln variäuTStates of the United States and the Australian Commonwealth.
The most severe penalty which can be inflicted on a member
of a trade combination is expulsion. In this respect also the
law may protect the individual, that is to say, the expelled.
member. The recognition of the disciplinary powers of the
trade union is carried to the greatest length in Russia, where
expulsion from a trade union involves loss of employment
(Standard Rules for Trade Unions, Article 27). The procedure
in case of expulsion is in many cases subject to regulations and is
made conditional on the observance of the rules, which must
provide, inter alia, for a majority vote, for the right of the
member whose expulsion is proposed to a hearing, or for
the possibility of contesting the decision to expel him. In
Switzerland, under the terms of Article 72 of the Civil Code,
the rules may provide for expulsion even without any statement
of the reasons therefor, the expelled member being deprived
of any right to contest the decision to expel him. In
France the rules cannot prohibit the bringing of an action in
the courts (Article 1006 of the Code of Civil Procedure).
The above group of provisions, the object of which is to
protect the individual member against the trade combination,
are closely related to the various provisions for securing the
right of the member to withdraw from the combination.
In Italy persons who are not members of a trade combination
— 39 —
are nevertheless regarded as to some extent forming a part of
such a combination, inasmuch as it represents them legally,
and they are bound by certain obligations towards it without
possessing any corresponding rights. Similarly, in Russia
all workers are legally represented by the trade unions. In
such circumstances the right to withdraw from a trade combination can only be effective to a very limited extent.
Under the ordinary law of associations a person may not,
generally speaking, be obliged against his will to remain a
member of a voluntary association, although in the interests
of the association he may be required to give a certain notice of
his intention to resign membership. The law of trade combinations, however, in many cases goes further than this and allows
members of such combinations to resign without notice in all
cases and regardless of the terms of the rules. This is the case
in Brazil, Chile, France, Greece, Portugal, and Roumania x.
ÌIL Great Britain, although a member naturally possesses
the right to bring an action in the courts in case of expulsion, he is nevertheless permitted freely to sever his connection with the trade_ jomjbination (Trade Union Act, 1871, section 4).
In France and Portugal a member continues, in case of resignation,_ to retain membership of the benefit funds and other
similar institutions conducted by the trade combination.
2.
The Objects of Trade Combinations
The spirit underlying any permanently coherent group is
legally embodied in the objects for which combination takes
place.
Trade combinations have their historical origin in the necessity for maintaining or improving conditions of labour. In
the course of their development, however, other objects have
heen added to the original object, and at the same time the
scope of the original object has been extended.
The various objects pursued at the present day by trade combinations may be subdivided into trade, social, economic, moral,
and political objects. The extent to which such objects are
as a whole recognised by the national law varies.
1
For Belgium and Germany, see above p. 37.
— 40 —
(a)
Trade and Social Objects
A combination, in order to be recognised as a trade combination, must naturally haye^irgde and social objects.^. This
is expressly stated in the British law (Trade Union Act; 1913,
section 1 (2) ; Trade Union Act, 1876, section"""16) K The pursuit of trade objects is not prohibited by the legisíatioñ~o"f
any country. Such objects may, however, be variously defined,
and extended or restricted either from the standpoint of the
individual (maintenance or improvement of the conditions
of labour of the members) or from the standpoint of the group
(defence of trade interests, the trade combination being regarded
as representing the trade or profession as a whole).
In Chile the law mentions only the common interests of_
the members. Similarly, in the United Stales j h e tendency of
the Federal Supreme Court would appear to be to refuse to
recognise the right of workers' trade unions to represent the.
general interests of the trade or profession as a whole, i.e.
it refuses to recognise that the objects of a trade union are a
matter of public interest 2 .
On the other hand, the Brazilian law recognises the right
of the trade combination^to^ defend and p r o t e c t not merely
the trade interests of its members, but also the general interests
of the trade or profession as a whole.
In France, Germany, and Poland the right of trade combinations to take action for the safeguarding of trade or professional interests is expressly recognised by the Statutes and
the decisions of the courts. In France the right to represent
the trade or profession is expressly reserved to the trade union.
In Italy the recognised trade combinations are, as has been
stated, the legal representatives of all personsln the trade ;
while in Russia they are the legal representatives of all workpeople.
This difference in the view taken of the trade and social
objects of trade combinations is of fundamental importance
as regards the activities of such combinations as a whole.
Further reference to it is made in Part III.
1
This is the case also in Australia, Denmark, and Norway.
Coppage v. Kansas, 236 U.S. (1915) ; Hitcliman Coal and Coke Co.
v. Mitchell, 285 U.S. ; Duplex Printing Press Co. v. Deering, 254 U.S.
(1921).
2
y
— 41 —
(b) Economie Objecls
In the majority of countries trade combinations as suchare
prohibited from carrying on an economic undertaking^ i.e.
from pursuing activities for purposes of profit making.
An express prohibition to this effect is contained in the trade
union laws of Belgium, Brazil,, France, and Jjoumania.
It is
implied in the generaljaw^ of associations m Austria, Estonia,
Finland, Germani/, Latvia, and Lithuania, and also in Czechoslovakia, Poland, Sweden, and Switzerland, where^associations
for "economic'' purposes are not covered by the same legal
provisions as associations whose purposes are "disinterested"
(ideale Vereine), trade combinations being classified in the latter
group.
The position is different as regards the defence of the general
economic interests of the members. The pursuit of this object
is universally recognised. Nevertheless, if a combination pursued such an object exclusively, it would lose its claim to be
considered as a trade combination 1 .
(c)_ Moral and Intellectual^bjects
Similarly, the pursuit of moral and intellectual objects j s
recognised in practically^ all^jcountries, and efforts directed
towards the moral and intellectual improvement of their
members are almost universally encouraged. In some cases,
however, the pursuit of religious objects is prohibited. The
law expressly prohibits the pursuit of such objects in France
and Roumania.
(d) Political Objecls
The pursuit of political objects may be specifically prohibited
by law. Usually, such prohibition impliedly arises from
the restriction of trade unioii_objects_to the objects permitted
by and stated JLII the law, where such permitted objects do
not include political objects. This is the case in Brazil, Chile,
France, Portugal^ Roumania, the Serb-Croat-Slovene Kingdom
(Workers' Protection Act), and Spain.
The word "political" may, however, be variously interpreted. In the widest sense of the word the purely "trade"
objects of a trade combination might be regarded as "political".
1
The "agricultural unions" in Brazil, France, Spain, and other Latin
countries should, not be regarded as trade combinations.
— 42 —
In Itali) the law would appear to make the recognition of
a trade combination conditional upon the maintenance of a
spedjied attitude or state of opinion, as a trade combination must, on the one hand, "further the moral and patriotic
education of its members and take effective action for that
purpose" (Act of 3 April 1926, section 1 (2)) and may only
admit to membership persons who show that they are of "good
political conduct from the national point of view" (section
4, II, b and c) ; while, on the other hand, the Government refuses
to recognise combinations which "without the consent of the
Government have any disciplinary relationship whatsoever
with associations of an international character, or are subordinate
to such associations" (section 6, (5), b and c).
In Russia only those combinations which comply with the
decisions of the ^]1-Russian_ Trade Union Congress, i.e. which
aim at effective socialisation by means of the dictatorship of
the proletariat, are recognised as trade unions.
In many countries trade combinations are expressly prohibited, either by the ordinary criminal code or by special protective legislation, from aiming at the overthrow by violence
of the existing political order. In Estonia the prohibition
covers specifically even_Jthe overthrow of "the existing social
order".
Under the Jlrilish law the term "political objects" applies
specially to the support of candidates for Parliament (Trade
Union Act, J1913, section 3 (3£). The funds of a trade union may
only be devoted to this purpose where the furtherance of political
objects has been approved as an_objegt_of the union _by_ a resolution passed on a jecret ballot of the members and where a
separate political fund is constituted from which the money
expended on political objects is to be paid. A member may
at any time jrefuse to subscribe to the political fund, and is
thereby freed from any obligation to do so. The jrules of the
union must contain a provision to the effect that a member
who has secured exemption from the obligation to contribute
to the political funds shall not be victimised or subjected to
any disadvantage on that account. In case of a breach of
this rule the member may complain to the authorities. The
provisions of the Indian Trade Union Act, 1926, are modelled
on those in force in Great TBrîtàin, "but "with" important
differences of detail.
Even in countries where the law does not impose any specific
— 43 —
restriction on the pursuit of political objects, such objects, like
those of an economic nature, may not assume suchjpredomjnant
importance as to deprive the combination of its trade union
character. In Austria (as in Czechoslovakia, Poland, etc.),
Estonia, Germani], and Latvia an association would, in such
a case, run the risk of being regarded as falling within the class
of political associations, which are subject to more severe restrictions. In Germany, however, the Jaw expressly states that
the provisions applicable to political associations shall not
arrgly to trade combinations where the latter, with a view to
the defence of trade interests, attempt to exercise an influence
iii the sphere of social and economic J?pjicy._
3.
The Organisation of Trade Combinations
The last group of fundamental conditions concerns the organisation of trade combinations. It is clear that a lasting and
systematic collaboration on the part of the members with
a view to the attainment of the objects pursued in common
can only be secured by means of organisation.
(a) Rules
The basis of any trade combination is formed by its rules.
The law generally re£uires_ that the rules shall contain, at any
rate, certain provisions, and even in countries where the law
does not contain any specific clause to this effect the rules of
trade combinations in fact indicate the name,_seat, and objects
of the combination, the conditions for admission to membership,
the constitution and the powers of the officials, and the manner
in which the combination may be wound up. Just as the
fundamental law of the State is its constitution, so the rules
represent the basic law of a combination.
The extent to which combinations are free to determine
their own constitution and the amount of autonomy enjoyed
by them naturally depends on the extent to which the State
interferes by laying down prescriptions in regard to the rules.
In Roumania the Act of 1921 expressly provides that the rules
ofjtrade combinations shall fully respect the political and religious
freedom of thejnembers.
J[n Brazil the Act of 1907 prescribes that the rules shall contain
a provision to the effect that the funds of the combination
shall be devoted to purposes which are in the interests of the
trade or profession concerned.
— 44 —
In Belgium the Act of 1898 requires a trade combination,
in case of ajrade or other civil dispute affecting it, to co-operate
with the opposing party with a view to arriving at a peaceful
settlement.
In Italy the rules musjt require applicants for membership
to be of "good political conduct from the national point of
vieVJ and must also indicate the constitutional organ responsible for ensuring discipline among the members and for
expelling members in case of moral or political misconduct.
All recognised combinations must also possess rules for their
employees, who must fulfil the same moral and political conditions as the members. The Government may at any time
require an alteration of the rules.
In Hungary the State authorities are empowered to decide
what provisions must and what provisions may be contained
in the rules (Order Z 1.77000/1922, supplemented by Orders
Z 1.9900 and Z 1.36700/1923) *. It may also be noted in particular that, in accordance with the detailed regulations on the
subject, all questions concerning the supervision of the combination's accounts and concerning its employees must be dealt
with by the rules ; that any alterations to the rules or other
matters of a like nature must before their entry into effect be
submitted to the Minister of the Interior ; and that the rules of
all trade combinations must_containaclause in terms dictated
by the authorities to the effect that in case of a breach of the
rules or of any action endangering the material interests of
the members (apart from any other grounds) the Minister
of the Interior may suspend or dissolve the combination.
(b) Constitutional Organs
While the rules of a trade combination form the basis of its
existence, its constitutional organs are responsible for carrying
on its affairs. The nature, powers, and duties of such organs
depend primarily on the provisions of the rules. The State
may, however, require the fulfilment of certain conditions.
These conditions are dealt with below.
The principal constitutional organ of a trade combination
is the general meeting. In Germany the law requires that an
invitation to attend the general meeting shall be addressed to
1
For details, cf.
INTERNATIONAL LABOUR O F F I C E : separate study
on Freedom of Association in
Hungary.
— 45 —
all members and that failing thisJhe proceedings^ f the meeting
shall be considered null and void. In Roumania the local
magistrate ma^^eguire^a general meeting to be called in cases
where a meeting, though required under the rules_,_has not been
called or where oñe-third of the members ^ntitled to vote
demand the calling of a meeting in the prescribed manner.
In Greece^ the procedure for voting at general meetings is prescribed in detail. In order that a vote may be valid, not less
than one-third jof the members must be present. In_ the case
of elections^ jpersonal questions, accounts, and decisions involving a strike, the vote must be secret.
In Hungary and Roumania, the law provides that only the
general meeting of members can decide to wind up a combination ; while in Greece only a general meeting can decide in
fayo.ur of a strike. In Latvia, any illegal decisions, or decisions
taken contrary to the rules, of the general meeting may be
declared^ null and void .by the competent authority. In such
cases the administrative authorities are required to call a fresh
meeting.
The executive committee is, generally speaking, the ]egal
repjresentatiye a n d t h e executive, organ of a combination.
In view of the importance of the part played by the executive
committee, special provisions have been enacted in a number
of countries with regard to its functions and the conditions
which its members must fulfil. In Chile, Estonia. Great Britain.
'Greece, Latvia, Roumania, and Spain_(Decree of 1922) the
members of the executive committee must be of age. In
Brazil, Chile, France, Greece \ Italy, and Roumania they must
be nationals. In Belgium (Act of 1898) and Spain (Decree
of 1922) the members of the executive committee must be
effectively resident in the country. In Latvia the members of
the administrative bodies of trade_unions must not be domiciled
abroad. In Brazil the members of the executive committee
must be Brazilian citizens and have been resident in the country
for notjess than five years. _ In France and Roumania members
of the executive committee must be actually engaged in the
trade or profession concerned. In Brazil, France, Greece,
Latvia, and Roumania 2 the law expressly provides that they
1
Aliens may, however, be members of the executive committee of
a combination
formed by aliens resident in Greece.
2
In Roumania persons who have been convicted of offences against
property are not eligible for membership of the executive committee
of a trade union.
— 46 —
must be in possession of full civil rights. ^Belgium,
under the
Act of 1898, proprietors of public-houses and brothels may not
be members of the executive committee of a trade combination
constituted in accordance with the provisions of this Act.
The members of the executive committee are automatically
jnembere of the trade union. Their ^election is conditional
upon their membership of the union in Greece {where an executive
member must at the time of his election have been a regular
member for not less than one year) and Roumania.
As a general rule trade combinations are left free to decide
for themselves how they will elect or otherwise appoint their
executive committees. In Roumania, the authorities may as
an exceptional measure and in urgent cases appoint a person
to carry on all business lying within the competence of the execu^-,
tive committee where there has been a breach of one of the rules
governing procedure or where for any other reason the combination is not legally represented. In Italy, the election or appointment of any member of an executive committee must be .approved by the authorities. Such approval may be withdrawn
at any time.
The position of a member of an executive committee is,
generally speaking, identical with that of an agent in ordinary
civil law. In Greece he is prohibited from accepting any remuneration for his activities. In Russia all members of the executive committee of a trade union are regarded as public officials.
Trade combinations, and especially workers' organisations,
generally possess a body known as the administrative committee. In Italy the law requires a management committee to be
appointed, the chairman qf_which must be the president of
the union. Generally speaking, however, this is a question
which is dealt with by the rules.
Particular mention must also be made of an official who,
from the formal and legal point of view, should not be considered
as representing the combination, seeing that he acts in his own
name and not in that of the union. This official is the trustee.
He plays a considerable part in all cases where aL combination.
is not legally qualified or does not wish to act in_its own name.
His activities are generally connected with b u ^ h ^ s a n s i n g j m t
of_thejinion_'s, property ? though his activities in this capacity
are recognised by the Statutes in the Anglo-Saxon countries""""
— 47 —
alone. In other countries (e.g. Germani] and Itali]) he is subjexJt
to the ordinary provisions of civil law.
In Great Britain * the law merely requires that the trustee shall
be of age._ He acts in his own name on behalf of thejrade union
and his authority need not be attested by any third party.
The whole estate of the trade union is vested in him. On the
death or removal of a trustee the property is automatically
vested in his successor without any conveyancejor assignment.
He is not liable to make good any deficiency in the funds of the
union. He may bring or defend actions on behalf of the trade
union to the fjulLexjtent of his representative capacity.
In Russia the works_ council is regarded as a constitutional
organ of the trade union. This point is dealt with at greater
length elsewhere 2.
B.
Formalities
The existence of an association of any kind is in all cases
conditional upon three factors : a minimum membership, the
pursuit of an object, and a certain amount of organisation.
In the majority of countries, however, the law prescribes certain
further conditions which a trade combination must also fulfil
in order to have legal existence. Such conditions may be
termed "formalities" 1. They have not necessarily any direct
connection with the nature of the trade combination qua combination : and in some countries the legal existence of a combination is not made conditional upon the observance of certain
formalities, e.g. in Denmark, Norway, Sweden, and Switzerland.
Formalities may be distinguished according to whether their
observance is required before the activities of the trade combination commence (or before the conditions of its existence
undergo some change, such a change being generally regarded
as a fresh commencement of activity) or whether they become
applicable only after the combination has been formed.
1. Preliminari} Formalities
The most serious preliminary formality which a trade combination may be required to fulfil is the obtaining of official
*Acts of 1871 and 1876.
See below, p. 117.
3
The recognition of the corporate personality of a combination is
made, generally speaking, to depend on such conditions. See below,
p. 68.
2
— 48 —
approval. In Hungary and Portugal the rules of a trade combination must receive the approval of the competent authority.
In Hungary, whilst combinations regarded as "industrial"
combinations are entitled to approval^ provided that their
rules comply with the conditions laid down by law (provided,
however, that such rules "do not contain any clause of such a
nature as to restrict or infringe the exercise of the rights secured
to the members under the industrial law"), workers' trade unions
are not in any way entitled_to claim approval,'and approval^
is only granted to them where their existence is regarded .as.
conductive in a high degree to the public interest. The provisions^! the Portuguese^ Act_apply only to workers' unions.
JDfficial approval implies the recognition of a trade combina' tion. Organisations may, however, be required to obtain recognition in addition to approval. A trade combination may
remain free to ask or not to ask for recognition, but failure to
obtain recognition may have such effects that .the obtaining
of it is a matter of vital interest to a combination. In Italy
the law grants rights only to recognised combinations : unrecognised combinations have merely a de fado existence, and enjoy
no rights. The request fo^re_cognition_mus_t be accompanied.by_
a copy q f t h e rules of the combination, which must comply
with a certain number of conditions, by a report on the constitution and previous activities of the combination, and by a list
of its members and officiais. Recognition is granted in the form
of a Royal Decree at the instance of the competent Minister,
¿ubject to the agreement of the ÌVIinister of the Interior and the
Council of State. Recognition implies approval of the rules_
which are published in the official journal at the expense of the_
combination. A combination, however, which fulfils all the
requisite conditions does not, ipso facto, acquire a right to
official recognition. Moreover, only one combinationjm,ay. be.
recognised for each class of trades or occupations. Recognition^
may be refused, where, forjgajonsjjf & _p_olitical. economic, or
sodai nature, it may appear inadvisable to grant it. It may be
withdrawn at any time in accordance with the same procedure
as is to be observed in granting it, not only if one of the requisite
conditions ceases to be fulfilled, but even for any serious reason
of a general nature.
In a certainnumber of countries, the recognition of trade
combinations is made to depend on registration. Such registration is compulsory for - all trade combinations in Australia,
— 49 —
Chile, Lithuania, and Spain. In Estonia, Latvia, and Roumania
registration is optional, but in these countries also the provisions
of the law are such that registration confers very considerable
advantages, as the existence of an unregistered organisation is
«xtremely precarious. In Chile, Estonia, Latvia, Roumania,
and Spain the law expressly provides that registration may be
refused where the rulesjjr objects pf_a_tra.de combination po nfligt
with the criminal law or are contrary to good morals.
In Queensland (Australia), although no provision of this
Idnd exists, the registrar of trade unions must, before proceeding
t o the registration of trade unions of workers, enquire, inter
•alia, whether it would not be advisable for_the union seeking
registration to join an already existing union, whether the union
is a genuine combination of workers, and whether the request
for registration is not put forward in the interests of the employer.
"hi Lithuania the decision in regard to requests for registration
is left to the discretion of the ^cmigetent authority._ Registration is entirely optional in Argentina, Belgium, Finland
Germany, Great Britain, the Netherlands, and the United Stales
{in the case of the last-named country, as regards combinations
covering the whole Federal territory).
Whereas in the above countries registration involves certain legal effects (such as the right to bring and defend civil
actions, etc.), in Switzerland \ where provision is also made for
registration, it has no particular ejïect. ^
A further formality required in some countries consists in the
communication of thejules.
In Belgium (Actjoj_lJ398),_Brazil,
and France, the rules of combinations must be communicated
"to the authorities. In Austria, Czechoslovakia, and Norway,
a mere declaration is suffkkmt.
In the SerbzCroatzSlßjieJie_
Kingdom, wherever the former Serbian legislation is in force
the rules must be published.
The right to oppose registration is granted to the other trade
unions in Queensland, and the competent authority in Austria,
Brazil, Czechoslovakia, Germany, _and JLatvia (where the
requisite conditions for official recognition are not fulfilled).
Various provisions exist in regard to the right of a combination
to appeal in case of a refusal to grant recognition, registration,
1
In the Canton of Geneva the Act of 26 March and 14 June 1904
requires trade combinations to obtain registration and approval of their
Tules if they desire to take part in the procedure for conciliation and
-arbitration.
— 50 —
etc. The special trade union legislation in Brazil, Chile, Hungary1,
and Italy contains no provisions on this question. The laws
of a number of countries require the aujyijOTities_to_come to a
decision within a certain time limit, at the expiration of which
a combination is free to commence its activities. This is the
case in Austria, Estonia, Latvia, Roumania, and Spain. In
Estonia, Latvia, Queensland and Roumania an appeal may
be lodged in the courts against_an unfavourable decision. In
jAjistria^ Czechoslovakia, and Germany, a complaint may be
lodged through the administrative channels.
2.
Formalities in regard to Administration
The formalities with which a trade combination is required
to comply after its foundation and for the period of its legal
existence represent the provision which the State makes for
its supervision of trade union activities.
(a) Compulsory Reports
In the first place trade combinations may be required by law
to carry out certain acts : thus, they are required to supply the
authorities at regular intervals with reports on the membership
of the Executive Committee, the number of members in the
union, etc., in Belgium (Act of 1898), Chile, Germany (in so far
as a trade "combination is a registered association), Roumania,
and Spain. In Chile and Spain the unions are even required
to communicate a ìisFóTtheir members. In Austria and Czechoslovakia the combination must forward to the administrative
authority a copy of ajvy reports issued on its activities or its
financial situation. In Great Britain registered trade unions
must forward to the Registrar every year before 1 June _a
general statement of their receipts and expenditure and their
financial situation. The statement must be accompanied by
a report on any crTanges which have taken place during the
year.
(b) Interference by the Authorities
In a number of countries the above provisions are supplemented by clauses enabling the authorities to take active
measures for the purpose ~òT*supervising trade union activities..
1
The clause providing that a trade combination might come into a.
provisional existence within a certain time limit has been repealed.
— 51 —
In Portugal the law provides, quite generally that workers'
trade unions, which alone are subject to special rules of law,
are liable to supervision by the administrative authorities. In
general, however, a distinction may be drawn between supervision of the meetings and financial administration and of the
other activities of trade combinations.
(i) Supervision of meetings. — In Latvia official permission
is required for J;he holding of "non-private" meetings~T this
provision is regarded as covering meetings of unregistered
combinations. Meetings of registered combinations are "private' ' and may, therefore, be held without obtaining official
permission. In Roumania combinations must previously obtain
permission for the holding of meetings : requests for such permission must be submitted in turn to a number of officials in hierarchical order. Representatives of the competent authority may
attend, supervise, and dissolve meetings. In Hungary the executive^ committee of a combination must give three days' notice
of any meeting, including even a meeting of the Executive
Committee or a meeting for artistic or scientific purposes. The
police may prohibit,, attend, or dissolve the meeting. Again,
in Austria and Czechoslovakia, under the terms of a Regulation
dating from the time of the Austro-Hungarian Monarchy and
still in force, previous notice of any meeting of a combination
must be_given to_th(; authorities, who may send an official to
attend such meetings, with power to dissolve them. This
provision is, however, [no longer effective as regards trade combinations.
(ii) Financial supervision. — Financial supervision is of no
less practical importance than the supervision of meetings
from the point of view of the trade unions.
In Belgium, under the Act of 1898, combinations covered
by that Act are prohibited from investing their funds in certain
ways, and are required to invest them only in thoroughly
sound securities. Trade combinations must communicate to
the authorities at a specified date an annual statement of their
financial situation. The terms of the law are, however, not in
practice observed.
In Greece the Act of 1914 provides for supervision of the
financial administration of combinations.
In Chile the relief, pension, and insurance funds established
by trade combinations are subject to the supervision of the
— 52 —
Gejt^eral_La2^ur^^
is required in particular to
ascertain whether the financial resources, subscriptions, etc., of
a combination are sufficient to enable such institutions to meet
their obligations to the members. If the resources are found
to be insufficient, the Government may require the funds
Î S L ^ J ^ S Ï Ï Î ^ Î S ^ . Similarly, where irregularities are discovered
in the financial administration of the combination, the Government may take action against the combination and the individuals responsible.
In Hungary the authorities take special ste£s to prevent the
utilisation of the funds of trade combinations for strike purposes
and to see that the members of the combination are not required
to pay any subscriptions other than those provided for by the
rules (which must not contain any provision for strike payments).
hi Spain the Decree of 10 March 1923 contains minute
regulations for the financiaj_ administration of combinations.
Combinations must keep accounts and at the time of their foundation must supply the administrative authorities with a register
of their members and an account book. Both of these documents are stamped by the authorities. The same procedure
is required when a new book is commenced. The two books
must be kept in a manner prescribed in detailed regulations ;
in particular, the combinations must show the source from which
jdl_ receipts are derived, the objects of any expenditure, and
thejnumber of persons assisted by any grants. Their statements
must be supported by vouchers.
Any decision involving a change in the amount of subscriptions or the fixingjof^ regular or exceptional subscriptions must
be communicated to the competent authority. The bookkeeping
must also be conducted in a manner prescribed by special
regulations. Every month^ the combinations must deliver an
exact report to the provincial authorities concerning the number ^
^J1^ jdeptity of their members, and concerning the receipts,
expenditure, and financial situation of the combination^ with
the name of the banks or financial establishments in which the
funds are deposited. The authorities may at any time inspect
the books of combinations.
In Italy, inasmuch as a method of collecting subscriptions
of trade combinations similar to that employed for the collection
of public taxes has been adopted, recognised trade combinations
are subjected to special State supervision, and the administration of the funds derived frôlh^û^scrîptîons is to a large extent
— 53 —
a matter for the authorities. Trade combinations are by law
required to pay certain taxes : in respect of trade organisation
and activities, of economic and social collaboration, of moral
and religious protection, of national and technical education.
They are also subject to certain special obligations, viz. the
payment of subscriptions to the National Organisation for the
Utilisation of Workers' Spare Time, the National Reh
for Mothers and Children,to^ the^jìera^azignak
Balilla,JLÌHÌ
to the InstituteJlor J h e Development of the National Economic
System. The amount of these subscriptions is fixed by the
authorities.
The persons liable to the payment of subscriptions are indicated in statements supplied by the undertakings. Their names
are entered by the combinations on published lists, against the
statements contained in which the parties concerned may, in
accordance with the provisions of the financial laws, lodge an
appeal with the courts. These lists are declared binding by
the administrative authorities. The decisions of the trade
combinations in regard to subscriptions must be approved
by^the authorities and are officially published, after receiving
_such approval \ Subscriptions are paid to the local tax collector. The administrative authorities distribute the subscriptions received as follows : to the trade combination 50 per cent.,
to the federation to which the combination belongs 20 per cent.,
to the central confederation 20 per cent., to the State 10 per cent.
Subscriptions are collected in accordance with the law on
municipal rates. The workers'subscriptions are deducted from
their wages. The combination must utilise one-tenth of the
subscription for the purpose of constituting a reserve fund (out
of which the obligations arising from collective agreements
must be met). Moreover, the budget of the combination, any
acts involving a change in its financialjsituation, any expenditure undertaken for a period exceeding five years, the procedure
employed for the collection of subscriptions, and the payments
made toJ;he reserve fund must all be approved by thg^ administrative authorities. If a combination omits to fulfill any of
these obligations, the authority may order it to do so, subject
to a right of appeal.
1
All parties concerned are entitled to contest such decisions. In addition, however, to the subscriptions fixed by law, the combination may
levy special subscriptions for its own purposes. Only members may be
required to pay such special subscriptions.
— 54 —
The above financial, supervision by. the authorities covers
not merely the recognised trade combinations but also the
jinrecognised or de facto combinatio_ns, under the terms of the
Decree of 24 January 1925 which applies to all trade combinations and which in this respect has not been modified by subsequent legislation. Consequently combinations receiving subscriptions from the workers are subject to supervision by the
administrative authorities. "Where there is good reason for
suspecting a combination of abusing the public confidence, of
collecting funds to which it is not entitled, or of employing
its funds in a manner contrary to the interests of its members
for objects not connected with the economic and moral assistance of the workers", the administrative authorities may institute enquiries, declare any of the acts of the combination null
and void, and in particularly serious and urgent cases dissolve
the executive committee of the combination and even appoint
some temporary body to administer its funds, and when such
body has completed its work, order the funds of the combination
to be liquidated.
In a number of countries other trade union activities are subject
to supervision, either distinctly from, or jointly with, the financial
supervision.
In Chile trade combinations must cojnply with certain rules
in regard to the keeping of their accounts and must kee.p a
register of members. They are required to communicate a
list of members every year to the General Labour Directorate, _
together with a_ balance sheet, accompanied by all necessary
vouchers. Any change in the number of members must be
notified to the authorities. Any alterations in the rules must
be approved.
In Roumania the persons responsible for carrying on a trade
combination must keep the list of members up to date, note
all receipts and expenditure, and keep minutes of all discussions. _
All such documents must be kept ready for inspection at any
time by the Ministry of Labour. At the end of each financial
period the combinations must supply the Ministry of Labour
with a report on the number of their members and their financial
situation.
" ~~
'"'" """" ~~"
In Latvia the district court may_remove officials of a combination who have been irregularly elected and order fresh elections to be helcH It may have "any" acts committed contrary
to the provisions of the law, or the rules, declared null and void,
¿
— 55 —
and may withdraw the rights conferred on the parties concerned
by the rules where such rights are exercised contrary to the law.
In Italy recognised trade combinations are required to communicate a copy of any resolutions adopted to the authorities. If
the resolution is contrary to the law, to a regulation, to the
rules, or to the main object of the combination, the authorities
may prohibit its execution. The competent administrative
authority is also empowered to declare such decisions null
and void, but must state his reasons for doing so. He
may also call for explanations, order an enquiry to be held
concerning the activities of the combination, or appoint a
commissioner to expedite the despatch of business in arrears.
The Government may at any time declare decisions adopted
by any organ of a recognised trade combination contrary to
the rights or the objects of the combination null and void.
Any decision regulating the position of the employees of
a trade combination must be approved by the authorities.
CHAPTER
II
DISSOLUTION OF A TRADE COMBINATION
The dissolution of a trade combination may be voluntary
or forced.
A. Voluntary Dissolution
The existence of a trade combination is brought to an end
solely as a result of circumstances in cases where the membership
falls to so low a figure that, even though the legally requisite
machinery of the combination may continue to exist, the
combination itself is no longer a substantial reality. The
diminution of membership may be due either to internal causes
or to external circumstances, e.g. it may be the .result of legal
proceedings brought against the persons responsible for the
administration of the combination, or of the deliberate exclusion of certain members, or of the granting of advantages either
to non-unionists or to members of other unions, or of the infliction of penalties under the criminal law.
— 56 —
Where a trade combination is wound up of its own volition,
its dissolution is said to be voluntary. The requisite formalities
for such dissolution may have been prescribed in detail by the
legislature, or have been provided for under the rules of the
combination 1. In a considerable number of countries the law
provides that the rules __qf_.trade combinations shall contain
provisions jcqncerning voluntary^ dissolution, e.g. in Austria,
Belgium (Act^ of 1898), Brazil, Czechoslovakia, Great Britain:
(aj5_j*egards registered trade unions), Latvia, and Roumanian
The law further requires in many cases that dissolution shall
takej)lace only in virtue of a decision taken by a general meeting
or_oi a_demand embodied in_a resolution voted by a majority
of the members. _JThjs_js^ ¿he^case^in Chile and Roumanian
In' Hungary a decision in favour of voluntary dissolution must
^receive the approval of the authorities.
The amalgamation of one trade combination with another
may be regarded as a special case of voluntary dissolution.
The law in a number of English-speaking countries contains
provisions regarding this matter. The law in Great Britain:
requires that in the case of amalgamation between one or
more registered trade unions and one or more unregistered
unions, a ballot shall be taken in each union, at which the
votes of at least 50 per cent, of the members entitled^ to vote_
are recorded, and that, of the votes recorded, those in favour £f
dissolution shall exceed the votes against by not less than 20_
p_er_cent. The amalgamation of the property of combinations
is governed by the terms^of agreements between the parties
concerned, without prejudice to the rights of creditors.
B.
Forced Dissolution
The legal provisions concerning the forced dissolution of
trade combinations involve much more serious consequences.
Among the steps which may be taken for the purpose of ensuring
such dissolution the following should be distinguished : the
compulsoryislçsin^joi^the
premises of a trade combination,.
which represents a material hindrance to the continuance of its
activities ; suspension of the combination ; final dissolution ;
and various subsidiary measures such as withdrawal of recognition, etc.
1
In the latter case, the law in a number of countries contains provisions applicable where the rules do not provide for the dissolution,,
e.g. in France, Germany, Great Britain, and Switzerland.
— 57 —
1.
Compulsory Closing of Premises
In Italy, during the period preceding the promulgation of the
legislation of 1926, the premises of trade combinations were
frequently closed by the authorities. In paragraph 3 of the
Act concerning municipal and provincial administration the
prefect was empowered in urgent cases to take whatever steps
appeared to him to be necessary. In EstoniaandFinland
cases
of the closing ofjtlig premises of combinations are also rerjorted.
2.
Suspension^
Provision is made for suspension, as distinct from dissolution,
in Denmark, Hungary, Latvia, Lithuania, and Spain. Suspension is, generally speaking, a temporary measure preceding dissolution. In Latvia suspension may be ordered in cases where the
procedure for dissolution has already been set in motion.' In
Denmark and Lithuania a request that the procedure for dissolution shall be set in motion must be lodged with the competent authorities in all cases of suspension.
3.
Dissolution and Withdrawal of Recognition
Provision may be made for final compulsory dissolution either
as a normal or as an exceptional measure.
(a) Grounds for Dissolution
In. the former case, dissolution may be ordered on purely
technical grounds. This is the case in Great Britain, in cases
where the continued existence of a union is for practical reasons
impossible ; in Canada, where the number of membersis too
small to allow the ordinary business of the union to be performed; in_ Chile, where the number of members falls below 20_;
in Switzerland, where the full membership of the executive
committee can no longer be maintained, etc. The case of dissolution ^nJÜhe_^veirtofb^mkruptcy (in Germany, Nojway, and
Switzerland) may also be classified under this head.
The most important case from the point of view of the right
of association is that in which dissolution is ordered as a penalty.
Such an order amounts to a sentence of death for a trade combination. So long as the formation of trade combinations was
prohibited penalties might be inflicted on individuals who
combined, and the dissolution of a combination might be ordered
— 58 —
on the ground that it had been formed for trade purposes.
On the other hand, the recognition of the right to form trade
combinations implies that a trade combination can only be
sentenced to dissolution where it violates the provisions of
the law, not by merely existing and pursuing trade objects, but
in some more serious manner, so as to assume the character of
a prohibited combination. Even, however, where the right
to form trade combinations is recognised in principle, it is only
possible to decide how far the authorities really respect the
limitations placed on their right to interfere by such recognition
in the light of an examination of the manner in which the law
is interpreted and applied in practice.
The penalty of dissolution may in the first place be inflicted
on the ground that the law or regulations have been infringed.
Thus, dissolution may be ordered where a combination ceases
to fulfil the conditions upon which its existence was made dependent (in Austria, Belgium (Act of 1898), Czechoslovakia, France,
arid Italy) ; where the provisions of the rules are infringed (in
Austria, France, Greece, Hungary, Latvia, Lithuania) ; where
the combination pursues other objects than the permitted objects
(especially political objects) (e.g. in France and Roumania) ;
^gI£.Ì^Le-J[uJJ§-9^ the combination are employed for other purposes than those which have been authorised (in Greece and
Hungary) ; and generally, J n all countries wh^r^sj^çiaHegis^
lation concerning trade combinations exists, in case of the violation of certain rules, e.g. in case of failure to register, etc.
Again, the penalty of dissolution may be inflicted in the case
o|_an_gjfence against the criminal law. Thus, the pursuit by
a combination of an unlawful or immoral object may form a
ground for dissolution, as in practically all countries the format i o n of combinations for unlawful or immoral purposes is.
prohibited. The law may, however, also prohibit the pursuit
of specific objects, e.g. the overthrow of the Government,
offences against public safety, anti-Governmental activities,
usurpation of public authority, and overthrow of the social
order. The pursuit of such objects is in some cases prohibited
by the general law of associations (e.g. in Austria and Estonia),
in others by the special laws for the protection of trade combinations (e.g. in Estonia, Czechoslovakia,_and the Serb-CroalSlovene Kingdom).
It is difficult to ascertain how far these provisions have
been effectively enforced in the various countries. The effec-
— 59 —
tive and legitimate enforcement of such clauses depends,
however, to a considerable extent on the precision with which
the prohibited objects are defined.
In Itali] decisions concerning unrecognised combinations are
left entirely to the discretion of the authorities, under paragraph
3 of the Act concerning municipal and provincial administration. In the case of recognised trade combinations the law
provides that recognition may be withdrawn in serious cases.
In Hungary the authorities exercise a similar discretion.
The declaration of a state of war or a state of siege may
constitute an extraordinary ground jor^th± dissolution of trade
combinations. Orders for dissolution have been issued on
such grounds in Bulgaria (1922), Estonia (1921'). Finland (as
regards communist organisations), Greece (at the time of the
general strike in 1913), Roumania (1920),, Serh-Croat-Slo_v_ene
Kingdom (Decree of 19 December 1920^111(1 Spain (at Barcelona
injL920]L_
(b)
Procedure
The procedure to be followed in cases of compuls.ory dissolution
may be such as to provide a serious guarantee that the step is
taken in an entirely legal manner. The administrative authorities are competent_to order the dissolution oftradj; j^omMaaliuns.
in Austria, Chile, Estonia, Jjermany, Hungary, and Itali}. In
Lithuania the competent body is a special committee.
In
Belgium, Bulgaria, Denmark, Finland, France, Norway, Roumania, Spain, and Switzerland, orders for dissolution are issued
by the courts. In the Serb-jCroat-Slovene Kingdom the Defence
of^the Realm Act of 1921=provides that dissolution may be
ordered _b_y the administrative^ authorities, but that an appeal
against their decision may be lodged with the ordinary courts
(of first and second instance).
Where the matter is one for the courts, the issuing of an order
for dissolution is only the final stage in the proceedings. On the
other hand, where the competence rests with the administrative
authorities, the only procedure possible consists in the lodging
of an appeal against a decision which has already been taken.
It is always more difficult to obtain the cancellation of a decision
which has already been taken than to prevent it from being
taken in the first place. A defendant organisation therefore
stands in a better position where the matter is one for the courts
than where it is left to the discretion of the administrative
— 60 —
authorities, especially as the law governing the procedure
of the courts offers it a greater choice of legal methods.
In many cases the law further expressly provides for prohibitions and penalties which become applicable in case of dissolution, e.g._where a ¿rade combination persists in its activities
notwithstanding its dissolution (e.g. in Roumania) or where
an attempt is made to escape the consequences of dissolution.
The officials of a dissolved combination are liable to penalties
in the Serb-Croat-Slovene Kingdom (Act of 1921).
(c) Liquidation of Property
Various steps may be taken in regard to the property of a
combination in case of dissolution. In Hungary the municipal
authorities are required to make an inventory of the property
of a dissolved combination and to forward it to the Minister of_
the Interior. The latter is required to utilise such property
for purposes of public utility without regard to the provisions
of the rules. In Chile any credit balance shown by the windingup proceedings must be transferred to a trade combination of
the same kind as the dissolved combination, provided that the
former is named in the rules of the latter. Where the rules
_contain no such designation the balance is handed over to one
of the branches" of the nationaj_savings fund. The^ General
Labour Directorate distributes annuallythe; junds¡_ of this
branch among the general workers' insurance funds and the
workers' trade unions..
The procedure in Roumania is similar.
In Italy the property of a recognised trade union is handed
over by Royal Decree in case^ of dissolution to the national
Jederation to which such combination was affiliated. Where
the dissolved combination was not affiliated to any federation
its property is utilised for the benefit of the class of workers
which it represented. Moreover, under the terms of the Decree
of 24 January 1924, the property of a combination may_be
liquidated by Royal Decree without dissolution taking place.
The credit balance may be handed over to some other legal
person (e.g. another trade combination), to another institution,
or to any other person not being a member of the combination,
in cases where it is found to be impossible under the rules of
the combination or the general provisions of the law to estimate
the share in the combination's property to which each individual
member is entitled.
*
— 61 —
Generally speaking, the_ laws contain only supplementary
clauses providing for cases where neither the rules nor the
terms of a special resolutionmake it possible to determine the
exact wishes of the combination. In such cases the property
of the combination must usually be devoted to the purposes
pursued by it. The distribution of the property of a combination among the members is expressly forbidden in Belgium and
France.
CHAPTER
III
T H E T R A D E UNION
AND T H E T R A D E UNION FEDERATION
For the sake of completeness some allusion to the law as
regards federations of trade unions must be made, in so far
as it differs from the law concerning trade unions themselves.
A.
The Right to Form Federations
The right to form federations must be considered with
reference to various types of federations : (a) international
federations and (b) federations within a country. — whether
local federations, general federations (i.e. covering a number of
trades), or trade federations (i.e. of one trade only). In each
case the right to form federations is restricted in some measure
in certain countries.
For example, as regards international federations, a trade
combination in_/taZt/ cannot obtain recognition if withoutTthe
permission of the Government it maintains any disciplinary rela•tions whatsoever with organisations of an international character
or if it is subordinate to any such organisations. In Estonia a
combination which desires to unite with organisations or federations situated abroad, and to comply with the decisions of such
federated groups, must obtain permission to do so from the
Jfcúster__of the Interioj.
In Hungary a federation covering the whole country would
arjpearto be^jegarded at law as a trade combination. In the
case of such federations the formation of a separate section
requires the approval of the authorities. Such a section of
— 62 —
a federation has, however, no independent existence : it is
obliged to comply with the instructions issued by the central
organisation. It_may. however, be dissolved by the Ministry.
in which case its property is handed over to ' the original
organisation. On the other hand, the dissolution of the
central organisation necessarily involves that of the subordinate
section.
In Greece trade unions of public officials are prohibited under
penalty of dissolution from affiliating with other organisations
of whatsoever kind.
In the majority of countries federations of trade combinations
are governed by provisions which are similar to or identical
with those which govern the combinations themselves. In some
cases, however, federations are subject to certain restrictions.
In Spain an attempt has been made by the legislature to
regulate the formation of federations of trade combinations
in various ways in the province of Barcelona, on the basis
of an enumeration and classification of trade organisations
by the authorities 1. For the formation of a federation an
absolute majority of all the trade combinations concerned is
required. The rules of the federation must be approved ;
the liberty of the combination as regards the_ federation must
be solidly guaranteed ; the sphere of activity of the federation
must_correspond to that of the combinations, subject to certain
restrictions, etc.
In Greece, under the Acts of 1914 and 1920, a federation
may only be formed_as a^ result of the adoptiqn_of a resolution
by the general meeting of the combinations concerned. The
number of votes allotted to a combination within the federation
must be proportional to the number of its members. The resotions adopted by the federation are only valid where the
voting satisfies certain conditions in regard to the proportion
of votes cast, and no single combination may be allotted more
than one-fifth of the total number of votes.
B.
Methods of Forming Federations
The ways in which trade combinations may form federations
vary considerably according to countries. The district to be
covered by an organisation, the question whether grouping
is to be by trades or by industries, the choice between forming
i Decree of 15 October 1921 ; Decree of 3 November 1922.
— 63 —
a central federation or continuing a separate associated existence without constitutional changes are in the majority of
countries left to the discretion of the trade combinations themselves. It is generally considered that the combinations must
decide for themselves what method of organisation best meets
their requirements, and draw up their rules accordingly.
The question whether and to what extent the statute law
.has already led to the establishment of definite rules of law
can only be answered separately for each country, and not
internationally. Only in very few countries does the law contain
general provisions concerning the federative organisation of trade
combinations, though in some other countries certain particular
forms of organisation are subject to special rules of law.
A certain degree of federative organisation is prescribed by
law in Russia for trade combinations. In order to obtain recognition as a .trade çojnbination a combination must ^affiliate
to a central federaiion fulfilling the conditions required by the
All-Russian Trade Union Congress. The basis of such federative organisations is widened by the fact that under the law
works councils are regarded as trade union bodies.
\a_Jtaly the legislation in 1926 deliberately aims at securing
hierarchical organisation of trade combinations. Three classes
of trade combinations are distinguished according to their
membership, viz. combinations of employers, of wage earners.
and_of personsjcarrying on a liberal ^profession. Trade combinations of employers and wage earners have been established
for industry and the various skilled crafts, agriculture, commerce,
transport by sea and air, inland transport (railways and inland
waterways), .andLfeanks J^_._One trade combination is recognised
fpoaçh_group. From the geographical point of view, however,
a distinction is drawn between municipal, district, provincial,
regional, inter-regional, and national combinations. Trade
combinations may form federations and confederations which
are in turn affiliated to a national federation (Unione delle
Confederazioni) for each of the three groups—employers, wage
earners,_and liberal ^professions^
Besides the above vertical grouping, provision is also made
for a horizontal grouping ; that is to say, the trade combinations
in each of the three classes may be grouped intojcorporations,
for each branch of production.
1
These groups are in turn sub-divided.
separate study on Italy.
For further details see
— 64 —
In some countries, _the authorities have set up |abour exchanges (bourses de travail). These are organised on a territorial
basis, and the trade combinations participate in their activities.
They exist in Belgium, Fmnce,^Greece, and Switzerland 1. As
their name indicates, the main obiect of these organisations
is the finding of employment, but the building in which they
are housed also provides premises for workers' meetings. Such
buildings are also expected to provide a hall or committee room •
in which employers and workers can discuss matters affecting
their common interests, as it were, on neutral ground. The
labour exchanges in the above-mentioned countries are set up
in virtue of a Decree under the terms of which the trade unions
in the respective districts are made responsible for their administration. They are, however, placed under the supervision oí
the administrative jiutJiorities_. Thus their work is supervised
by the authorities of the ward or arrondissement, their finances
are managed by the municipal authorities, and they may be
dissolved by the Ministry. Moreover, they may receive subsidies from the municipalities.^ Their importance depends
primarily, however, on the work which they have to perform.
This work is further described below.
Conclusion
Two impressions may be derived from the above analysis.
In the first place there is clearly nothing like uniformity in the
manner in which the right of association is given practical form
under the various national legislations. Secondly, and even
more clearly, the right of association may be seriously
restricted by the tendency to regulate the activities of
combinations for trade purposes in too great detail.
It has been shown that every individual is not always free
to form or join trade combinations and, on the other hand, that
the right to leave a trade combination may, in some countries,
be specially guaranteed ; that trade combinations are not in all
cases free to pursue such objects as they may think fit ; that
they are not free under all circumstances to manage their
1
The trade union cartels in Germany correspond to the bourses de
travail in other countries. Their organisation is governed solely by the
rules of the trade unions themselves.
2
See below, p. 129. In many cases, however, the bourses de travail
have been used as a weapon against the trade unions (e.g. in France).
— 65 —
internal and external affairs as they think best ; that they are
required in a great number of cases to fulfil certain formalities
involving, in some countries, the necessity of obtaining official
approval and of submission to official supervision, while in
other countries such formalities merely involve the obligation
t o furnish certain particulars of no great importance ; and
that in some countries trade combinations are constantly
liable to the threat of dissolution, while in others this extreme
measure is in practice almost unknown. Finally, the law may
deal more severely with workers' combinations than with
others, and, even where all trade combinations are equal in
the eyes of the law, the law's effects may be more severely
felt by workers' than by employers' combinations.
It would, no doubt, be idle to wish for absolute uniformity
in regard to the legal position of trade combinations. It
might, however, be possible to lay down a minimum standud
of common rules. No doubt it would be erroneous to set up
freedom of association and regulation as mutually exclusive
alternatives, for the former is by no means imcompatible
with the latter. But it has been urged, on the other hand,
that the preservation of order should not exclude freedom of
association, and it has been suggested that the regulation of
the right to combine should stop short at the point where
i t would, if pushed further, involve its negation, in other
words, that regulation should ¡not be carried to the point of
strangulation. The question arising from the foregoing considerations is whether the restriction of freedom of association
does not itself imply some limit to the regulations which
may be properly imposed on trade combinations, or whether
it is preferable that the objects of combination should be
attained, ven at the expense of freedom.
5
PART III
ACTIVITIES OF TRADE COMBINATIONS
In order to understand the real meaning of the right of combination for trade purposes, it was necessary to examine the
conditions which the trade combination must fulfil in order
to have legal existence. This has been done in the preceding
Chapter. It is now necessary to examine what action the trade
combination can take in order to achieve the aims it.has
in view, for it is with the object of action that the trade combination is set up as a permanent organisation, and it is only by
examining the possibilities of action that the real extent of
the right of combination can be known. It is the development
of the right of action in combination which makes it possible
for a strong and organised body to take the place of the single
individual, necessarily weak and isolated. If the right of
action in combination is not granted, the right of combinatioa
is merely delusive.
— 67 —
CHAPTER
I
T H E CONDITIONS GOVERNING T H E ACTIVITIES
OF T R A D E COMBINATIONS
A. LeqaUgecsanality
The first question which arises in this connection is whether
the trade combination is capable of taking action. Before
attempting to answer it, some considerations of a general nature
must be taken into account.
At first sight, action on the part of a trade combination
would seem merely to be the acts of so many individuals. In
the ordinary way, however, it is customary to speak of the acts
of groups of people, of societies, associations, the State, and
so on. The same holds true in the legal field. There is, however,
this difference. At law the individual is automatically possessed
of legal personality, but groups of persons cannot be considered
as having legal personality unless this has been expressly
laid down. If this has not been laid down, an act which would
normally be considered as the act of a group of persons is
considered by the law as a number of separate acts committed
by the individuals making up the group.
Under these circumstances, a trade combination as such can
only take legal action if it has legal personality ; otherwise
any action taken will be considered from the legal point of view
as the act of the individual committing it. This rule is fundamental to any understanding of the legal aspect of the
activity of trade combinations, but in practice it is often
considerably modified.
According to the principles of Teutonic law, all that an association of individuals needs to do in order to be considered as
possessing legal personality is to fulfil the material conditions
for which the association exists. This view of the matter at
present obtains in Denmark, Sweden, and Switzerland. On thecontrary, Roman law and the systems derived from it lay down.
that the State must expressly grant legal personality to associations before they can be considered as possessing it. In
many cases the two systems have become fused to some extent,
with the result that intermediate forms have arisen.
— 68 —
The official recognition of a trade combination (see Part II,
Chapter I) is closely connected with its legal personality.
This connection explains the object of the numerous small
details of form, studied in the previous Part, due in great
measure to the fact that thejreçjDgnition_of a trade combination
often carries with it, ipso facto, the grant of legal personality^
Nevertheless, in those countries where legal personality must
be expressly granted, and, moreover, where it is granted only
under certain special conditions, trade combinations — and
particularly trade unions — often prefer not to submit to these
special conditions, considering that the undesirable consequences
which may follow outweigh the advantages conferred by the
grant of legal personality. On the other hand, trade combinations, which are progressively becoming recognised as the
representatives of their members, and even of their trades, may
obtain certain rights as a result of recognition 1 although they
have not full legal personality. In this case the question of
the grant of legal personality loses its importance in practice.
From this it follows that the concession or the refusal of
legal personality is not a sufficient indication of the degree
of freedom enjoyed by combinations. This freedom depends
rather on the extent to which trade combinations are recognised.
Trade combinations possess Jegal Efisonality, by reason
of the fact that they are associations, not only in the countries
already named, but also in Austria, Belgium, and Czechoslovakia.
The acquisition of legal personality is required by law in
Brazil, Chile, France, and Italy. In these countries recognition
of the trade combination and the grant of legal personality
go together. Does this constitute any restriction on the right
•of combination ? This depends on the trade combination's
x conception of freedom, and also on the conditions which must
be fulfilled in order to obtain recognition 2.
The acquisition of legal personality is optional in Estonia,
Greece, Italy, Lithuania, and Roumania, but only those trade
combinations having legal personality are recognised.
In Canada, Germany, the Netherlands, and the United States
the fact whether the trade combination acquires legal personality^
or not does not influence the question of_recognitionv
1
Thus, such forms as a "partial legal personality" (Germany) and a
"quasi-corporate status" (Great Britain) are found.
2
See above, p. 48.
— 69 —
In Great Britain trade combinations have not legal personality, but they are nevertheless treated as if they had._
B.
T h e Consequences of Legal Personality
By studying the various lines of activity pursued by trade
combinations, the legal consequences of the acquisition or
non-acquisition of legal personality might be deduced. But the
notion of legal personality has been developed chiefly in the
direction of property rights, and at the present time has a
general significance only in regard to the acts of trade combinations relative to property rights. The possession of legal
personality presents its chief interest in so far as it affects
the capacity of trade combinations to possess and to acquire
property, to conclude contracts, their responsibility at law,
and their capacity to sue and to be sued.
Trade combinations having legal personality may possess
or acquire property and conclude contracts without any restriction * va. Austria, Belgium, Denmark, France, Germani/,
Norway, Sweden, and Switzerland. aTheir right to acquire
and possess land is limited in Chile. The members of trade
combinations in this case have neither rights nor duties. In
Great Britain property is Jiço^uired^JorJhe trade combination
and held on its behalf by the trustee. In Gefmany, where
the acts of those trade combinations which do not possess
legal personality give rise to rights and duties affecting the
whole of its members, landed property is usually acquired by a
trustee acting on behalf of the trade combination.
The question of the responsibility of trade combinations
and their capacity before the law to act is one of great interest.
Distinction must here be made between civil law and criminal
law. In civil law distinction is made between the law of
contracts and the law of torts, according to the nature of the
case.
In Belgium, Brazil, France, and Germany trade combinations
which possess legal personality are responsible by civil law^_to
the full extent of their property. In Italy a special fund must
be set up to enable them to meet obligations arising out of
collective agreements.
In Great Britain trade combinations are not_re_sp.pjxsible
for unlawful acts committed in their name or in their interest.
1
As regards collective agreements, see below, pp. 105 et seq.
_ 70 —
The responsibility of trade combinations which do not
possess legal personality, and of the members of these combinations, is regulated in a different manner in those countries,
such as Germany and the Uniied States, where the question
arises in actual fact. The advantages occurring from the
common j a w , which take the form of limitation of responsibility, have decided the trade combinations in these countries
t o refuse to acquire legal personality *. In the Uniied States,
however, the courts have decided that the members of trade
combinations incur an unlimited responsibility for unlawful
acts j;ommitted by the officers and employees of the organisation when these acts are; approved bythe; .mem_b_e_rs of_the
trade combinations. The courts have laid down that such
approval is to be presumed if the members do not leave the
combination once the_acts in question committed by the organs
of the combination have become publicly known 2.
The responsibility of trade combinations may be limited,
that is to say, a part of their possessions may be declared not
distrainable. In France the furniture and buildings used for
the meetings, for the libraries, and for the vocational courses
of trade combinations are not_jiable to distraint. The same
applies to the fund for the relief of members.
As a general rule trade combinations which possess legal personality may sue and be sued without restriction^
In Chile, however, a_ trade combination can only sue in the
case where common interests or the general economic interests
In France a trade combination may sue, even without power
.of attorney, on behalf of ajvyjnember when the interest of the"
trade requires.
j n Great Britain a trade^jcombination which, for the abovementioned reasons, is not responsible, cannot be sued.
In Germany trade combination^ which do not possess legal
personality may^be sued, but they cannot bring an action 8.
I n j h e United States the Federal Supreme Court has decided
that organisations, although they do not possess legal personality,
1
For details, see the monographs on Germany and the United States.
Lawlor v. Loewe, 235 U.S. 522 (1915).
3
An alteration has been made by the Act of 23 December 1926 on
labour tribunals, by which trade combinations, whether or not they
possess legal personality, may act in labour cases in such a way that the
principle of common law mentioned in the text now only applies to
cases relating to property.
2
— 71 —
may sue or be sued under certain circumstances — namely,
when they are in fact of the nature of corporations.
As regards criminal law only the actual individual responsible
for a breach of the law is> liable, as a general rule. The organ
of a combination which violates the law in the exercise of its
functions is thus personally responsible.
The numerous dangers which the organs of a combination —
and in particular the executive committee — incur as a result
of the legislation in certain countries may involve, by reason
of the fear they inspire, a certain restriction of the free exercise
of the right of combination.
Recognition and the grant of legal personality are thus
the conditions determining the activity of trade combinations.
In the following pages it is proposed to examine the various
forms of activity which may in fact be pursued. Four types
will be considered :
(1)
(2)
(3)
(4)
Internal activity, as regards individuals members of
the organisation ;
External activity of a violent nature — the labour
dispute ;
Non-violent forms of external activity — collective
agreements and participation in management ;
Participation in the functions of the State.
CHAPTER
II
INTERNAL ACTIVITIES OF TRADE COMBINAT IONS
A.
Institutions set up by Trade Combinations
Legislation in all countries permits, and even encourages,
the efforts made by trade combinations in the immediate interests of their members, in particular the setting-up of schools,
of educational courses, and of various funds, arrangements for
insurance, etc. These institutions are always created with a view
to the realisation of the essential object of trade combinations
— 72 —
— the defence of trade interests. In practice, they may have
a still larger scope. On this account, legislation frequently
lays down limits which these institutions may not exceed 1 .
B. The Control of Institutions set up by Trade Combinations
In certain countries onlyi._those__orga.msatiqns which are
expressly recognised, registered, and have a corporate status,
may set up institutions of this type. This is so in JSraziZ,
GMM> Estonia, France, Greece, Itala, Lithuania, Portugal*
and Roumania.
Does this restriction limit the right of combination for trade
purposes ? This question has been answered above in connection
with another question, namely, whether the obligation t a
acquire legal personality, and the recognition arising out of
it, constitutes a limitation of the right of combination for trade
purposes.
Trade combinations may also be obliged to demand a special
authorisation for the creation of funds for the assistance of
their members and other purposes. In Portugal, for instance,
the law requires such authorisation for the creation of employment exchanges.
Frequently, legislation requires that the management of
funds for the assistance of members shall be separate. This
is so in Portugal and Greece. In certain countries (for example
Hungary) the funds of a trade combination must not be employed
except for objects laid down in its statutes. In other countries,
funds for the assistance of members_maxjm2y_^_iisedJor the
payment of assistance.
The law may also prescribe a special form of control of the
institutions providing assistance to members. Thus, in Chile?
section 34 of the Act of 8 September 1924 lays down that the
funds for assistance, for pensions and for insurance set up b y
a trade combination shall be under the control, both as regards
organisation and activity, _of the General Labour Directorate.
This control applies in the first place to the financial management of the funds, the law expressly instructing the officers
of the General Labour Directorate to verify if the funds at the
disposal of the combination are sufficient to enable it to meet
1
In view of the subject of this Report, no description is given here of
the various institutions set up by trade combinations, attention being
confined to the legal provisions appertaining to them.
— 73 —
its obligations, and when this is not so the liquidation of
these funds may be ordered.
When the legal provisions relating to the control of private
insurance companies apply also to insurance funds set up by
trade combinations, the latter may be subjected to a special
control. This is so in S£a±njind RoumaniçL_ In order to escape
from this control; the statutes of trade combinations often
lay down that their members_shMLilQi:JiayjË_any-J£aal--claimagainst the insurance institution. Arrangements such as this
are found in Germani/ and Belgium.
On the contrary, in Great Britain, registered trade unions,
and unregistered trade unions which Jhad^been in existence
j o r twenty years a t t h e time o^ the promulgation of the Insurance
Act, were not made subject to this Act. In addition, the capital
and income of the insurance institutions of trade unions are not
liable to income tax.
Lastly, trade combinations and their institutions for providing assistance may be separate in the sense that the latter
are attached to special organisations existing side by side with
the trade combinations. In Great Britain a system such as this
is explained by historical reasons, and no inconvenience is
caused to the trade unions since each trade union may be at the
same time a friendly society. ^ I n Brazil and Portugal such
separation is expressly required by law. The Brazilian law
requires that a separate fund and a separate accounting system
be set up. The Portuguese law lays down that it is not necessary that the members of the fund shall belong to the trade
combination. In Hung arg, a similar system permits foreigners
to be members of the institutions for providing^ benefits^but
does not permit them to be members of the trade combination
itself.
In the great majority of countries, trade combinations may_
set up and manage institutions for rendering assistance to their
members, whether expressly authorised by law so to" dö (äs,
for example, in France), or whether under conditions of complete
autonomy. To what extent is this right exercised ? This
is a question of fact depending chiefly upon the financial strength
of trade combinations and admitting of different answers in
the different countries.
The State may encourage institutions for rendering assistance set up by trade combinations by having recourse to
their services for furthering its own objects. Thus, in Switzer-
— 74 —
land, for example, subsidies jaregranted^ for the creation of
workers' secretariats. For the most part, however, where
these subsidies are granted, there is some previous connection
between the tasks of the trade combination and those of the
State as, for example, with the Ghent unemployment insurance
system 1.
The encouragement given by the State may involve some
restriction on the liberty of trade combinations since the State
naturally wishes to exercise a certain control over the institutions towards which it has contributed. But this is a question
rather of the problem of the participation of trade combinations
in State activity, which is studied at a later stage, than of the
legal protection of the institutions set up by trade combinations.
CHAPTER
THE TRADE
III
DISPUTE
The workers were obliged to combine in order to secure
the improvement of their working conditions at an epoch
in which their only means of obtaining such an improvement
lay in subjecting their employers to such pressure as could not,
in the nature of things, be brought to bear by the individual
acting alone.
The economic cohesion of modern society is based either on
contractual relations, such as contracts of employment, or
on the mutual understandings which exist between producers
and consumers. Pressure can only be brought to bear in such
a state of society through the temporary suspension of one
of these forms of relationship, involving disorganisation of
either production or distribution. Disorganisation of production
takes place when work ceases owing to a strike. Disorganisation of distribution takes place when consumption ceases as
the result of a boycott. The two methods may be employed
either independently or jointly. They may also be accompanied
by additional or alternative measures, such as passive resistance,
blacklisting, etc.
1
F o r details see INTERNATIONAL LABOUR O F F I C E :
Insurance.
Studies and Reports, Series C, No. 10.
Unemployment
Geneva, 1925.
— 75 —
All forms of combination for trade purposes originate in
the trade dispute and begin by owing their importance to it.
The trade dispute represents for a trade union its primary
form of external activity.
Fear of the trade dispute was the strongest of the various
sentiments which for a long time resulted in the prohibition
of combinations ; and even after combinations became tolerated,
the Statexontinued to maintain an attitude of suspicion towards
workers' organisations owing to its fear that disputes might
at any moment break out in large numbers. On the other hand,
recognition of the right to combine for trade purposes was
regarded as a recognition of the right to strike, and any restriction of the latter was regarded as an attack upon the former.
In view therefore of the intimate relationship between the
right to combine for trade purposes and the right to strike,
it is necessary to proceed to a study of the latter and to describe
the exact nature of the legal nexus between the trade combination
and the trade dispute — i.e. the part played by the former.in
the latter.
SECTION
I : THE RIGHT TO STRIKE
A. Prohibition and Qualified Recognition
In the majority of countries strikes are, generally speaking,
permitted. In a minority, however, this is not the case.
In Liihuania strikes are prohibited by a clause in the Criminal
Code borrowed from the pre-1905 Russian Criminal Code.
It is, however, difficult to ascertain how far the provisions of
this antiquated clause are_really in force at the present day.
In some countries (some of the Australian States and recently
in Italy) strikes are prohibited as part of the system of compulsory
arbitration. In establishing such system the legislators intended
that it should ensure to the workers concerned such protection
as without it they might have obtained for themselves by means
of the strike.
There appears to be a general tendency to limit the right to
strike by the introduction of arbitration and conciliation procedure. Further attention is devoted to this point below. The
majority of countries have not, however, as yet adopted any
measures so definite and explicit as those referred to above.
It is not sufficient to state that the right to strike is recognised
in the majority of countries without explaining the manner in
— 76 —
which the terms "trade dispute" and "recognition of the right
to take part in a trade dispute" are legally defined. A trade
dispute is always the result of the combined activity of a certain number of individuals. From the point of view of society
such activity in combination may be regarded as constituting
a single action, to which the names "strike" and "lockout"
are applied. From the legal point of view, however, it is impossible to speak of a single action unless the collective activities
of the persons concerned are regarded as contituting one complete
action attributable to a group of persons regarded as constituting
a single unit, e.g. a trade union with corporate status. Where
this is not the case, what from the point of view of society is
a single action resolves itself from the point of view of the law
into a number of separate actions ; a strike, thus represents in
law the acts committed in pursuance of the strike by all the
workers as individuals, and each of those acts must be judged
separately. These two views are not, howevei, mutuallyexclusive ; a strike may be regarded as a single collective action
from some points of view and as a series of individual actions
from others. Thus a strike which involves the breach of a
collective agreement may involve simultaneously a liability
for a trade union as a whole and an individual liability for all
workers who have broken their individual contracts of employment by taking part in the strike.
The question to which an answer must be found may therefore be stated as follows : Is the right (a) of the individual and
(b) of the trade combination to strike recognised? Further, in
order to estimate the extent to which the individual possesses
the right to strike, it is necessary to discover the manner in
which the term "strike" is legally defined in each country.
There is no difficulty in deciding what a strike is, considered
purely as a social phenomenon ; its legal definition is, however,
still a matter of considerable obscurity. Under the early legislative provisions, by which combinations were prohibited, the
object aimed at was the prevention of agreements with a view
to withholding labour in order to obtain an increase in wages,
and such agreements were made punishable offences. Under
these circumstances strikes were in practice prohibited, but it
is nevertheless clear that in prohibiting combinations the law was
striking rather at agreements to take certain action in combination than at the actual cessation of work. Moreover, cessation
of work, when it took place in an unlawful manner, was under
— 77 —
the laws of many countries regarded as constituting a further
punishable offence. At the present day the Hungarian law
contains a provision to the effect that a worker who is guilty
of ceasing work in an unlawful manner may be forced to return
by the local authorities and punished (section 159 of the Industrial Code).
Thus if combination in general was regarded as an offence
and prohibited, the mere agreement to perform the actions for
which combination takes place was by implication also struck
at. In the Engfo/i-speaking countries, Germany, the Sçandinavian countries, jtnd Switzerland the right to agree for trade
jmrpqses is an indissoluble part of the right to combine forjhe
same purposes. In other countries (Belgium, France, Austriß
and the Succession States) a distinction is drawn between the
two rights. lnJBeìqium and France no special legal provisions
exist with regard to the right to agree for trade purposes. In
Austria, on the other hand, _agreements_f_0£trade purposes are
placed outside the law under the Act of 7 April 1870. This
provision applies also in Czechoslovakia and Hungary. It may
be noted, however, that_iji these countries also the provision
is gradually losing all practical significance and a trade union has
come to be regarded as an "agreement of a permanent character".
The right of the worker to cease work is based on the general
notion of the individual's right to bestow his labour as he pleases,
and thus by implication to withhold it altogether. Regarded
from this point of view, the breach of a contract of employment
does not constitute a crime 1. There are a certain number of
exceptions, however,, to the general acceptance of this notion.
Thus, in some cases agricultural workers are still, as in the days
of serfdom, not permitted to cease work.
It is clear, therefore, that the individual worker possesses
the right to strike only in countries where the two rights —
the right to agree and the right to cease work — are simultaneously recognised. Where either of these rights is denied,
the right to strike does not exist.
The only..country__in which the right to strikejs^ejjognised
in the Constitution is^ Estonia. The German jConstitution
recognises the rightjto combine^(Vereinigungsfreiheit)
but
not the right to agree upon concerted action (Koalitionsfreiheit).
1
Some authorities consider that a strike is a suspension rather than
.a breach of contract.
— 78 —
This distinction was inserted for the sole purpose of ensuring
that the Constitution should not be interpreted as guaranteeing
the right to strike "of all individuals in all trades", i.e. to civil
servants, as well as to other workers.
In most cases the right to strike is not specifically recognised
in formal terms, but is derived from.. the_ repeal,. pf_legi_slation.
under which concerted agreement for trade purposes was made
an offence. This is the case in Belgium, Germany, France^
and Great Britain. In the United States the right to strike
is based more particularly on the decisions of the courts *.
In a considerable number of countries, e.g. Germany, France*
and the Serb-Croat-Slovene Kingdom, it is difficult to say whether
the right to strike as recognised by the statutes is one which has
been formally conferred or whether it is not rather an established
fact, capable of being limited by statute. In Belgium, this
distinction does not appear to have been drawn. In a number
of countries no distinction has been made between the right
of the trade unions to organise a strike and the right of the
individual to withhold his labour. In other countries the trade
unions are expressly prohibited from taking part in strike
activities. In the former Audro-Hungarian
Empire such
prohibition was based on a clause to the effect that agreement
for..Jtra.de purp.o_s.es_jpas__unla^ul. In consequence of this
provision a legally recognised trade combination was unable
to form an agreement for strike purposes without losing its
legal character and becoming liable to compulsory dissolution..
Although the law in question is still in force at the present day
in the Succession States, this particular clause is no longer
applied either in Austria or in Czechoslovakia^ It is, however,
still^ejiioxsed in Hungary, where trade combinations are not
permitted to introduce a clause in their _rules_jenabling them
to institute, encourage or support a strike. In Western Australia
trade unions areformally prohibited, from encouraging a strikeIn Queensland, on the otherhand, participation in a strike is
notjîejrmitted unless the strike is carried on by a trade union..
In the French courts the third party to a dispute (i.e. the
1
A certain number of laws on the subject have been enacted in variousStates, e.g. New York and Massachusetts, but the effect of such laws hasnever been decisive. Since 1830 the courts have admitted the right
to strike. In 1842 the Supreme Court of the State of Massachusetts.
decided that a closed shop strike was lawful (Commonwealth v. Hunt).
The decisions of the various courts on this question vary considerably
however.
— 79 —
trade combination) soon came to be regarded as identical with
the persons originally concerned in the dispute (i.e. the workers
employed in the undertaking affected by the strike) V In
Great Britain the Trade Disputes Act of 1906, section 5, definitely lays down that the expression "trade dispute" covers any
dispute betweejn employers and workmen, whether or notheworkmen concerned are_ in _thja_ employmentL of th^_empjûy:ex-.witji
whom the trade dispute arises 2 . In the United States the much
discussed Clayton Act of 1914, the aim of which was to complete
the anti-trust legislation and to restrict its application in the
case of trade unions, contains provisions of a similar nature
to those which occur in the British Act, but much less clearly
stated. These provisions have been somewhat narrowly interpreted by the courts, which regard the expression "trade dispute" as applicable solely to a dispute between an employer
and his own employees. The courts have therefore considerably
restricted the right of a trade union independently to organise
a strike.
B.
1.
Restrictions on the Right to Strike
Restrictions in regard to Persons
The right to strike is not an absolute right enjoyed under all
circumstances by all workers without distinction. Thus,.
wherever the legislature has_ refused to allow certain classes
of persons to combine for trade purposesit has ipso fado refused
to extend the right to strike to such persons ; for the refusal
to allow the formation of trade unions amounts to a prohibition
of any agreement or association of whatever kind, including
the agreement to take strike action, which is one of the essential
activities of trade unions 3.
Moreover, in many countries where the right of association
has generally speaking been granted, certain restrictions are
placed on the right to strike. Thus, in a considerable number
of countries the old restrictions on the right to strike have been
maintained in the case of agricultural workers. In Sweden
until recently the law provided that an agricultural worker who
quitted work before the termination of his engagement might
1
8
Cf. judgment of the Court of Cassation, 19 June 1891.
In India the Indian Trade Unions Act, 1926, permits registered.trade
unions to take control of a trade dispute.
3
See above, pp. 33 et seq.
— 80 —
be punished or brought back to work by the police. These
provisions were, however, only put into practice in rare cases
and were finally repealed by the Act of 4 June 1926. Their
repeal has been effective since 24 October 1926. In Hungary,
on the other hand, the Act of 1898 concerning, conditions of
labour in agriculture, and the Act of 1907 concerning the conditions of labour of domestic^farm servants, have been maintained
in force. Under these Acts a worker is liable to prosecution
in case of a breach of his contract of employment and may be
brought back by force. A worker who fails to begin work which
he has undertaken to perform is also liable to penalties. In
the Baltic States, under the unrepealed Russian Criminal Code,
agriculture is placed on the same footing as public utility services, all strikes in jwhiçh.jare j)rohibited.
In all countries a strike hy. seamen. at. sea is prohibited. In
the case of this category of workers the pursuance of trade interests is subordinated to the maintenance of discipline and
safety \
In Czechoslovakia workers who are members of works councils
have in many cases been refused the right to strike on the ground
that it is the duty of such workers, in virtue of their special
position, to assist in maintaining discipline in the undertaking
•concerned.
In a number of countries the prohibition of strike action
•extends to all workers whose work is of essential public importance, e.g. workers employed in the public services and in vital
industries. This is the case in Guatemala under the terms of
an Order dated 15 February 1926, and in the Baltic States
in virtue of the provisions mentioned above. Reference is made
below to the case of countries in which no stoppage of work
may take place in industries of this kind until the termination
of arbitration or conciliation proceedings.
In the Netherlands, under an Act of 1903, and in Hungary,
under an Act of 1914^ railwaymen are prohibited from striking.
Strikes _may be prohibited in certain undertakings of an
essential character or even in general where special circumstances
exist, such as to endanger th£_safety of the State or of the people.
In a considerable number of countries a clause to this effect is
embodied in the Constitution (Czechoslovakia Article 114, III ;
1
See INTERNATIONAL LABOUR O F F I C E : Seamen's
ment.
Articles of Agree-
Studies and Reports, Series P. No. 1. Geneva, 1926.
— 81 —
Germany, Article 48 ; Poland, Article 124). In Great Britain,
on the other hand, the Emergency Powers Act, 1920, provides
that no regulation issued under the Act shall make it an offence
for any person or persons to take part in a strike or peacefully
to persuade any other person or persons to take part in a
strike.
In Greece and the Serb-Croat-Slovene Kingdom strikes of
Tailwaymen have been prevented by their mobilisationj and
jby the issuing of military orders against striMngJ^__¿imilar
action was taken in France in 1910 1.
Strikes of public officials are practically universally prohibited. In Austria it is not quite clear whether such prohibition
in fact exists. In Norway public officials may take strike action
within certain extremely narrow limits. In Switzerland the right
t o strike is definitely withheld frojn such workers under the
draft rules referred to in a previous Chapter, and they are in
addition prohibited from joining any organisation the rules
of which provide for the eventuality of_a jtrike.
2.
Restrictions arising out of the Criminal Law
It is thus clear that in countries where the right to strike
is granted — i.e. where a strike is regarded as being generally
lawful — certain limits have been set to such lawfulness. For
a long time after combination had ceased to be regarded as an
offence, strikes were only permitted within extremely narrow
limits, and even at the present day strikes become unlawful
where the limits laid down are exceeded.
Although legislative provisions for the regulation of strikes
exist in a considerable number of countries, trade disputes
in general do not in any country form the object of special
detailed legislation. As a general rule it is left to the courts to
decide in each individual case whether the action taken is of
a lawful character. Where no special legislation exists, the
decisions of the courts are usually based on common law
doctrine.
In order to give a clear international account of the ideas
1
It is impossible to undertake any detailed examination of the legal
situation in all countries in case of declaration of a state of war. It
may, however, be noted that in Bulgaria, Estonia, Lithuania, and
Roumania all trade union activities have been suspended by the declaration of a state of siege.
6
— 82 —
underlying these general rules and to facilitate a comparative
study of the present trend of opinion in different countries, it
is necessary to refer back to the fundamental ideas on which
the right to combine for trade purposes is based and to show
what are the chief interests which the law in each case seeks.
to protect.
Any trade dispute necessarily involves the exertion of pressure..
Such pressure conflicts with the principle of individual liberty
which has now been taken into the laws of all countries. As,,
however, the individual who exerts the pressure is himself
exercising his own individual liberty in doing so, it becomes
necessary to define the point at which the exercise by one
person of his individual liberty so far encroaches upon the liberty
of some other person that the pressure exerted by the former
can no longer be regarded as a lawful exercise of a right and
becomes an unlawful breach of the rights of others. The
parties concerned in the case under consideration are the
employer, the organised workers, and third parties, who in most
cases consist of unorganised workers. The conflicting rights
to which the law grants protection are (1) the right of the
employer to enjoy the free use of his property ; (2) the right.
of the_organised workers to take combined action for the defence
of their particular interests ; (3) the right of third parties to^
join or not to join an organisation and to work or not to work.
for a particular employer.
The position at the present day is that in practically all cases
the law recognises personal liberty and personal property and
protects them by punishing offences against them ; that in a
considerable number of countries the right to work or not to
work for a particular employer is specially protected ; b u t
that on the other hand the right to take joint action is in a
number of countries not yet recognised^ that it is frequently
quite unprotected, and that even where protection is granted
this is regarded as quite a new departure.
In several countries the application of the ordinary criminal
law has led in the case of a mere threat to strike to the application of the law dealing with threats, the use of force, extortion,
etc. !
1
Decisions dealing with this point have recently been given in Germany
and the United States, but in very special cases. In Germany the workers
concerned threatened to extend their strike to urgent work, while in
the United States the threat to strike arose in connection with the:
payment of the wages of a single worker.
— 83 —
The question of the particular offence constituted by infringement of the right not to join a trade combination has been
dealt with in a previous Chapter *. In a number of countries
a strike .involving such infringement is regarded as a special
case.
The freedom of the individual worker in regard to trade combinations (open shop) is in a number of countries specially
protected. In the following countries it is protected against
any kind of violence : Bulgaria, Estonia, France, Greece, Itali],
Latvia, Lithuania, Roumania, Spain, Sweden, Switzerland
(Berne and Graubünden), United Stales (more than twenty
States).
In Great Britain, on the other hand, section 3 of the Trade
Disputes Act, 1906, provides that "an act done by a person in
contemplation or furtherance of_a_trade disgute shall^ not be
actionable on the ground only that it induces some other person
to break a contract of employment or that it is an interference
with the trade, bjisiness or employment of some other persons,
or with the right of some other person to dispose of his capital
ojr his labour as he. .wills! ' 2 . „
The infringement of the right of an individual to -disposfì_o£
his labour as he wills ceased to be regarded as a crime in Germany
in 1918 and in Belgium in 1921. In the countries mentioned
above, the criminal penalties involved in case of such offences
vary, as does the legal definition of the offence struck a t 3 .
3.
Civil Law Restrictions
In the countries where industry is more highly developed a
tendency is noticeable at the present day to rely rather on the
civil than on the criminal law for the purpose of restricting trade
union activities in connection with trade disputes. This tendency is certainly not unconnected with the development of
organisation among the employers.
(a) Restrictions in regard to Strike Objects
Inr a number of countries the courts apply certain_general
principles for the purpose of restricting the objects pursued
by strike action. Thus in Germany, the Netherlands and Switzer1
See p. 30 above.
A clause to the same effect has been inserted in the Indian Act of
25 March 1926.
3
For further details on this subject see the various national studies.
2
— 84 —
land, the principle has been adopted that a strike may not be
declared for any purpose contrary "to public order or morality' '
(den guten Sitten) ; while in Belgium, France and the Netherlands, the objects jpursued may_ notJnyolvj^ ail in|rmgejnent_pf
the rights ofthird parties.^ A strike may be regardedas unlawful
where it is designed priniarily to injure another person and only
secondarily to maintain or advance individual ortrade: interests,
(e.g. in virtue of the doctrine of "conspiracy" in the United
Stales). The courts are always allowed considerable latitude
of interpretation in dealing with cases arising out of trade
disputes, though certain types of disputes present fairly
uniform features.
In a number of countries strikes for political objects 1 are
prohibited ; thus in Great Britain_the protection afforded by the
Trades Disputes Act, 1906, possibly does not extend to a strike
for such objects.
Where the law prohibits trade unions from pursuing political
objects, it also prohibits them expressly or impliedly from declaring a strike for the purpose of attaining such objects. A trade
union which commits a breach of a provision of this kind may
be dissolved 2.
Sympathetic strikes are not permitted in all countries. The
manner in which the various countries have dealt with this
question is of great importance as indicating the extent to which
the lawfulness of a strike for the protection of trade, or trade
union, interests is admitted.
In the United Stales the symj)athetic strike is not regarded
as a lawful trade dispute within the meaning of section 20
of the Clayton Act 3 . Under the terms of this section the
members of a trade union which is involved in a dispute concerning conditions of labour —• i.e. a dispute which in general
is regarded as lawful — are not regarded as being all of them
engaged in the dispute. Only workers who are, were, or are
to be employed in the undertaking concerned are regarded as
directly taking part in the dispute. Under these circumstances
the organisation of a sympathetic strike for the purpose of
furthering a labour dispute as against some employer who was
1
The question of the general strike is still too controversial to admit
of international treatment.
2
See p. 58 above.
3
Duplex Printing Press v. Deering (1921), 41 Sup. Ct. R. 174-181.
— 85 —
not a party to the original dispute is unlawful. This is a
direct consequence of the doctrine outlined above in regard to
a trade union's right to take part in a strike.
In Great Britain, as in the majority of European countries,
the sympathetic strike is not, apart from any other restrictions
imposed by the law, unlawful.
This conflict between two tendencies — on the one hand to
permit strikes only where their object is the furtherance of the
interests of the strikers themselves, and on the other to permit
them even where they take place for some more loosely defined
common purpose — becomes particularly acute in connection
with the question whether a strike for the purpose of securing
the dismissal of non-unionists is or is not to be regarded as
lawful. The same question also arises in connection with the
insertion of a compulsory unionism clause in collective agreements
obliging employers not to engage any workers who are not
members of the trade unions which are signatories to the
agreement, and workpeople not to accept work from any other
employers than those who are likewise parties to the agreement 1 .
In practice two distinct cases have to be considered. _On the
one hand a strike may arise out of the fact that a collective
agreement containing a compulsory unionism clause gives the
workers the right jto_insist on the dismissal of non-unionists ;
or it may arise because the workers desire to secure the dismissal
of non-unionists arid to force the employer to agree to a compulsory unionism clause (closed shop or union shop slrike)% Thus,
where a compulsory unionism clause is permitted by the law a
strike for the same purpose is impliedly lawful, and, conversely,
where a closed shop strike is permitted a closed shop clause
in collective agreements must also be regarded as lawful 2 .
In Belgium, under sections 3 and 4 of the 1921 Act, any pressure^exercised with a view to forcing a person to join a trade union
is a PJ^ijh^lejojfeiice. A= A strike for such a purpose is_therefore
unlawful not merely at civil but also at criminal law. On the
other hand, a compulsory unionism clause is only declared tqjbe
null and void wheje its object is to force other workers tojojn
1
See p. 112 below.
Under the same head may be classified strikes arising out of certain
workers' membership of some other trade union, and the-somewhat
special case of strikes declared with a view to forcing an employer to
join an employers' organisation so as to obtain the general application
of a collective agreement with that organisation (Great Britain, Larkin
v. Long (1915), A.C. 830).
2
— 86 —
a union (this being a question of fact to be decided in each
case). A strike declared for the purpose of securing the carryingout of such a clause is not unlawful.
In other countries in the absence of any special legal provisions the matter is left entirely to the courts to decide. As
the decisions of the courts vary very greatly, it is extremely
difficult to form a clear opinion in regard to the attitude adopted within a given country even, not to speak of that adopted
generally in a number of countries. It is only possible to
endeavour to discover the various tendencies underlying the
courts' decisions by a study of the grounds on which decisions
of the courts in regard to the lawfulness of strikes or clauses
in collective agreements directed against non-unionism are
based.
In Germany the courts have fj^quentlj^ decided that such
strikes or_clauses are unlawful in view of the doctrine of freedom
of association itself — i.e. on the ground that freedom of association implies freedom not to join an association. This view,
however, has not won acceptance in the Supreme Court, which
hitherto has based its decisions rather on the circumstances of
each particular case, and has ruled that strikes and agreements
directed against non-unionism are contrary to morality (unsittlich), and consequently unlawful, only where the livelihood of
non-unionists is thereby compromised.
In Austria the courts have decided that a threat to strike
_does not^constitute a sufficient ground for the dismissal by
an employer of a worker who has ceased_ to belong to a trade
union or who has in some other way incurred the hostility of
trade unionists.
In Denmark an agreement directed against non-unionism
would be a violation of the agreement of September 1898 by
which the workers recognised the right of an employer to
choose his employees freely.
In the United Stales this question has been before the courts
for a considerable time, and periods of toleration have been alternated with periods of severe restriction. The courts' decisions
vary considerably according as they emanate from the various
State Courts or from the Federal Courts. Decisions to the
effect that_a closed shop strike is unlawful have been based
either on common law doctrine or on the Statutes, especially
the anti-trust laws. The common law doctrine on which the
courts' decisions have specially been based is that of conspiracy.
— 87 —
In 1842 the Supreme Court of the State of Massachusetts
decided that a closed shop strike was lawful,_but at_present_
a number of courts, including those of Massachusetts, hold that
the main object of a closed shop strike is not to further the
interests of the workers taking part in it but rather to infringe
the rights of other parties, and that it is therefore unlawful 1 .
The Federal Courts, in deciding that any attempt to obtain
the exclusion from employment of non-unionists was a restriction
on inter-State commerce, were relying on the anti-trust laws.
Nevertheless, the strike, directed against production rather
than against trade, has suffered less severely from such decisions than other forms of trade union activity, and particularly
boycotting. Moreover, the decisions in question have only
been given in cases where the free play of competition was
seriously compromised 2.
In France clauses in collective agreements directed against
non-unionism have been declared valid. On the other hand,
a strike the object of whichisj,p prevent an employer from freely
choosing his employees, or of obtaining the dismissal of one
or more workers, is regarded as an infringement of personal
rights.
In Great Britain such strikes have been condemned on the
ground that they are an unwarrantable interference in the
«onduct by the employer of his business, or that they involve
an incitement to a breach of contract. The courts have,
however, in many cases taken the view that such action is a
normal form of competition, and have therefore refused to
intervene. Clauses in collective agreements restricting employmen^ to members of a trade union, and means of pressure not^
involving violence which havejbeen adopted with a view to
enforcing the execution of such clauses, as also a strike or a
threat to strike in order to force ajpersonjojoin a trade union,
have been declared lawful 3 .
In Switzerland the Federal Court has decided that a strike
against the employment of a non-unionist is not unlawful,
1
Recent decisions have, however, admitted the validity of a collective agreement requiring an employer to engage unionists only, and the
lawfulness of a strike for the purpose of securing the execution of such
an agreement (Smith v. Bowen (1919), 232 Mass. 106, 121 N.E. 814).
3
Where no restriction of competition is involved, the parties are
entitled to plan and execute their designs without any legal restriction
{Window-Glass Manufacturers v. United States (1923), 44 Sup. Ct. 148).
3
White v. Ripley (26.1.20), L.R., 1921, 1 Chancery 1-2-3; Fowler
v. Kible (23.1.22), L.R., 1922, 2 Chancery 407.
— 88 —
but by a more recent decision it has considerably restricted the
scope of the former judgment, declaring that a strike with a
view to forcing a worker to join a trade union one of whose
principles was socialisation was contrary to morality, inasmuch N
as it constituted an infringement of freedom of opinion.
(b)
Restrictions in regard to the Conduct of Strikes
The conduct of a strike invariably necessitates a certain
amount of organisation. Such organisation is usually provided
for in the rules of the trade union, or under some analogous
provisions which the union has freely adopted. The law may,
however, also fix certain specific rules which must be observed
during a strike, and may prescribe that the trade union rules
are binding, and that if they are violated the strike ceases to
be lawful.
Regulations may exist covering the conduct of the strike
from the moment it breaks out. For instance, in many countrjes-the-'iSw'pfovides that a strike may not be declared until
a vote has been taken, and in the majority of cases it also requires
a specific majority in favour of the decision to declare a strike.
This principle has been adopted in Denmark in virtue of the
September agreement.
In Greece the law provides that the decision to declare a
strike must be J^ken_b^_secret ballot at the general meeting
of a trade union.-; If the meeting's decision has not been taken
before the strike is declared, a meeting must be called jvithin
48 hours 1. Similarly in Queensland, Australia, under the Act
of 28 August 1923, a strike may only be declared after a vote
by secret ballot has resulted in a specific majority. The result
of the vote must be communicated to the local authorities.
In the State of Massachusetts the parties concerned are required to inform the authorities in any case where a strike is
imminent. In the Canton of Basle Town, Switzerland, a strike
must be notified at the time of its declaration.
The rules of the trade unions usually further provide that
a strike may not be declared until every possible means of
negotiation has failed, and in particular until conciliation or
arbitration proceedings have been taken. A provision to this
1
In Greece an annual report must be furnished to the administrative
authorities concerning all strikes which have taken place during the
year.
— 89 —
effect is contained in the law in Canada (as regards mines and
industries of public importance) ; in Germany (but only in
essential industries) ; in the Canton of Geneva, Switzerland ;
in Norway ; in the States_oi_Colorado (where failure to comply
is a punishable offence under an Act of 12 April 1915), Nevada,
and Alaska (where damages may be inflicted in case of noncompliance).
In the above States the strike may not be declared until the
e v i r a t i o n of conciliation proceedings^
In several States
of the United States theJaw.requires that an agreement^ to_arbitrate shall include a clause to the effect that no strike or lockout
may__take place until the arbitration proceedings are terminated.
In Great Britain failure to observe, a, provision contained in
the rules for arbitration _has been Jjegarded as sufficient ground
for_deçlaririg a strike unlawful.
The conduct of a strike is in itself subject to certain rules,
especially in regard to the organisation of the strike, which
is generally entrusted to a committee usually consisting of
representatives of all the organisations taking part in the
strike. The question therefore arises as to how far trade unions
are responsible for the actions of the strike committee. _ It
is not easy to give a satisfactory reply. The matter is not
decided by the law, but is _usually left to the courts, whose
decisions are generally based on common law doctrines.
To enable the strikers to hold out, a strike benefit is usually
paid 1.
The payment of strike benefit is prohibited in Hungary.
Italy, South Australia, and Western Australia. Its payment
is indirectly restricted in a number of countries where the
law provides that trade union funds, and particularly benefit
funds intended for other purposes, may not be diverted to
any other objects than those for which they are supposed to
exist. This method has been adopted in the countries mentioned
above 2.
The right to strike may be to some extent restricted where
the strike or participation therein constitutes a breach of contract. Breach of^a contract of_ employment or jof a collective ^
1
The term is here used in its widest sense. For purposes of the present
study, it is unnecessary to consider the various forms which such benefit
may take.
2
See pp. 48 and 72. On the other hand, in India strike funds are
expressly permitted under the Act of 25 March 1926.
— 90 —
agreement may render participation in the strike, or the strike
itself, unlawful.
In general, and although in practice the principle is by no
means universally accepted, it may be asserted that a worker
who goes on strike without giving due^nptiçe_to_ lu¿_emp_lqyer
is in the majority of countries regarded as guilty of a breach
of contract (Austria, Czechoslovakia, France, Germany, Switzerland)'1.
In_the Anglo-Saxon countries, any incitement toja breach of
contract is equally prohibited.. In Great Britain, a .tradejyaiûa
^JsSâM-y-'lfiSpoflSUîisJ-QtAstrike involving a b r e a ^ o f conijact,
of employment only in those cases where it is not covered by
t h e T r a d e Disputes Act, 19JD6.
For j^he individual worker a strike involving a breach of
contract may lead to immediate dismissal^ and even to an
^action for damages^ In regard to this point also, however,
there is still considerable doubt in the various countries as
to the course to be taken in each particular case. In Hungary
a law providing that strikers may be brought back to work by
force is still in application.
In countries where the execution of a collective agreement
can be enforced by legal means, a strike involving a breach of
an agreement may be unlawful, so as to involve serious consequences for any trade union responsible for such breach of
contract 2 . On the other hand, where the terms of a collective
agreement cannot be enforced legally, _as_ in_Gfecrf Britain and_
India (Indian Trade Unions Act, 1926), a breach of the agreement
involves no legal consequences for the_ trade union.
In France, Germany, the Netherlands, Norway, and Sweden
_aj)reach of a collective agreement may form a ground for an
action for damages, without any limit to the amount of damages
which may be claimed. Even in the United Stales, a number
of_courts have decided that a threatened strike, involving _the_
breach of a collective agreement, may be prohibited by means
1
See, however, footnote on p. 77 concerning the idea that a strike
involves not a "breach" but a "suspension" of the contract of employment.
2
In a number of countries a worker may be held responsible for a
breach of a collective agreement. See p. 113 below.
— 91 —
of an injunction, and that the breach of an agreement may
involve the payment of damages \
In Denmark and Finland the law provides for the payment
ofj j i n e which may in certain circumstances be of a considerable
amount. In Finland such fine may not exceed 100,000 marks
(Act of 22 March 1924). In_ Queensland (Australia) and Italy
a breach of a collective agreement is a punishable offence.
On the other hand, a strike against an employer who is
guilty of a breach of a collective agreement is generally regarded
as a legitimate form of self-defence,8. It should, however,
be borne in mind that a strike does not in all cases involve
a breach of a collective agreement. In some countries it is _
held that in the absence of any provision in the collective
agreement to the contrary, a political or a general strike does
not necessarily involve a breach of the collective agreement.
This is the case, fj3r_example,J[n_ Germani] and Sweden 3. These
are questions, however, concerning which there is still considerable controversy in all countries, and it is impossible to
generalise concerning them.
A strike may obviously involve unlawful activities — violence,
material damage, etc. Activities of this kind are in all countries
punishable in the ordinary course of events. The question
arises, however, as to how far activities which are inseparably
connected with strikes qua strikes can be regarded as unlawful,
so as to -involve liability for the trade union. This distinction
is clearly drawn in the British Trade Disputes Act, 1906. Under
this Act, "an act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation
or furtherance of a trade dispute, not be actionable unless the
act if done without any such agreement^ or combination would
be actionable"
"An action against a trade union, whether
of workmen or masters, or against any members or officials
thereof on behalf of themselves and all other members of the
trade union inresjpect of any tortious act alleged to have been
1
"Where a strike, or other action, is threatened by a labour union in
violation of its contract,
the jurisdiction of a court of equity
to issue an injunction is well recognised." (Grassi Contracting Co. v.
Bennett (1916), 174 App. Dov. 242,160 N.Y. Supp. 279 ; Jacobs v. Cohen
(1905),
183 N.Y. 207, 76 N.E.)
2
This principle has been formally recognised by the American and
French courts.
3
Decision by the Supreme Court, 22 May 1915.
— 92 —
committed by or on behalf of the trade union, shall not be
entertained in any court" 1. In all other countries a trade
union is held responsible for its manner of conducting a strike.
As has been said above, the Clayton Act in America does not
go so far as the Trade Disputes Act of Great Britain, though
it is modelled on it.
In practice the question as to whether a strike is conducted
in a lawful manner arises especially in connection with the
behaviour of pickets, whose business it is to see that the order
to strike is obeyed, to prevent blacklegging, etc. At all periods
and in all countries such activities on the part of the workers,
though considered by them to be indispensable in case of a strike,
have given rise to considerable controversy. It is clear t h a t
the element of force, which is inseparable from any trade dispute, becomes specially manifest where the workers resort to
picketing. As a strike cannot succeed if the employer concerned
succeeds in replacing the strikers, it is the business of the pickets
to prevent workers who might be willing to work for such
employer from approaching his premises. It is self-evident
that the desired effect cannot be attained by a mere exchange
of friendly conversation. The strike pickets may therefore
find themselves involved in hostilities, not merely with the
employer, but also with a third party, i.e. with workers who
are willing to take the place of the strikers.
In countries where strikes are prohibited, picketing ig naturally prohibited as well. In South Australia the law contains
a clause to this express effect.
In some countries where the strike is not in itself unlawful»
picketing is prohibited or declared to be unlawful. This is
the case in a number of American States. In Colorado and
Washington picketing is prohibited by law ; in California,.
Illinois? Michigan, and New J erseyait has been held to be
unlawful by the courts.
At the present day.picketing as such is definitely prohibited
by law Hj_yery few countries^ In a number of countries, however,
it is either restricted or altogether^prohibited jjyjsojmejnaore,or
less roundabout means. In some countries picketing is prevented
by the application of provisions of^ a_general character, e.g. by
traffic regulations, legal provisions prohibiting public meetings,
1
Similar provisions have been enacted in India and British Columbia.
— 93 —
etc. 1 Thus, in, the Netherlands a clause in the Criminal
Code prohibiting the obstruction of traffic in the streets and
rendering offenders liable to penaîties_(Art. 426a) has been
utilised to check picketing. The penalties prescribed by the
law are, however, only applicable where two or more persons
combine and persist in the molestation or obstruction, notwithstanding the opposition of the person against whom such
molestation or obstruction is directed.
In a number of countries a distinction is drawn between peace^
fjil_pj.çketing, which is permitted, and picketing accompanied
by violence, which is prohibited. It is, however, evident that,
like strikes themselves, picketing necessarily involves the exertion of a certain amount of pressure, without which it could
not attain its object. In the majority of countries, therefore,
the interpretation of the law on this point has been left to
the courts, which have to decide in each case how far picketing
is lawful.
In some countries the matter is dealt with by means of special
laws or regulations specifically dealing with strike pickets.
This is the case in Great Britain (Conspiracy and Protection of
Property Act. 1875, sectipn_ 7 ; _ Trade..Disputes. Act, .1.906,,
section 2), and j n the_ territory_of_ the Saar (Order of 13 July
1,924). Such special provisions prescribe that it is lawful
for one or more persons to attend or wait in the^kjinty_of_an_
enterprise during a strike in order to give adyice or information, and J^cefjally..to_j3_ersuadeother persons to_accept,
•or (more frequently) to cease, work, provided that they refrain
from threats and violence. Intimidation, persecution, violence,
etc., are prohibited, and the pickets are also forbidden to deprive
other persons of their tools, clothing, etc.
In countries where the right of the individual to dispose of
his labour as he wills is protected by special legislation, such
legislation covers picketing.
Where special legislation exists which in practice deals with
common law offences (offences against personal liberty, property, etc.), but which have, in virtue of such legislation, acquired
a specially criminal character, the legislation may be regarded
as involving special restriction of the right to picket. The right
1
As such regulations are usually issued by the municipalities, it is
difficult to give detailed information concerning them. It is certain,
however, that such regulations or by-laws have been interpreted so
as to prevent picketing in the United States.
— 94 —
to strike clearly does not involve the right to break the law.
On the other hand, the interpretation given to the law is important. Thus, the mere fact that several persons meet together
in order to carry out picketing may be regarded as amounting
to the use of threats ; the watching or besetting of the entrances
to a factory may be regarded as amounting to the use of threats
or violence ; to call a non-striker a "scab", or even to address
any remarks whatever to him, may be regarded as intimidation,
etc. Experience shows that all the above cases may occur ;
they do so, indeed, with special frequency where the right of the
individual to dispose of his labour as he wills is protected by
special legislation.
In other countries in which no special legislation has been
enacted, the coercive character of picketing has led to the
application of common law doctrines. So long as the general
provisions of the criminal law (as regards the use of threats,
molestation, assault, etc.) are applied solely to check unlawful
activities, they cannot be regarded as involving a restriction
on picketing. On the other hand, where they are interpreted
in a wider sense in the manner described above, they may involve
as considerable a restriction on the right to strike as any
special legislation.
In a large number of countries the provisions^ of_ the civil
law are more generally applied to picketing than those of the
criminal law. As in the case mentioned above, such provisions
become applicable only where picketing assumes an unlawful
character. The question therefore once again arises as to
which of the activities connected with picketing are lawful
and which are not.
The first question to be decided is as to who is entitled to
bring an action. A worker who is willing to continue working
may bring an action — e.g. in Belgium. The ground of his
action is the infringement of his right to work or not to work,
or to join or not to join a union. In the majority of cases,
however, the plaintiff is the employer, who may base his case
either generally on the financial loss suffered by him (as in
France and other countries in which Art. 1382 of the Code
Napoléon is in force) or, as frequently happens, on the ground
that an offence against his property has been committed (as
in the United Siaies). In Germany a business or undertaking is
regarded as a form of property which is protected by the law.
In the Anglo-Saxon countries interference in the trade, business
— 95 —
or employment of another person, and incitement to a breach
of contract, are actionable.
The predominant tendency in the American courts is to
prohibit even pickets or patrols stationed at the entrance
to an undertaking as unlawful 1 ,^ The German courts hold that
picketing is unlawful not only where persons wishing to enter
an undertaking in which a strike is taking place are required
to show a permit, but even where pickets are stationed at the
entrance to such an undertaking for the purpose of preventing
persons willing to work from entering.
(c) Liability in Unlawful Strikes
The principal civil penalty to which a trade union which is^
responsible for an unlawful strike, or for acts committed in the
course of a strike, is liable, consists in the payment of damages
for loss caused by the strike. In the United Slates the antitrust laws provide that damages may be inflicted urjjtq_three_
times the amount of the loss suffered.^
The extent to which a trade union may be held liable depends
on the various provisions of the civil law, and on the procedure
in courts— e.g. on the conditions on which liability for damages
is made to depend (i.e. the view taken in regard to causation,.
personal responsibility, responsibility for the acts of others,.
etc.) on the prevailing doctrine in regard to the onus of proof, etc.*
A trade union may not only b£j3rdere^d_to pay damages as a
result of an ordinary civil action, but may, in a number of
countries, be also ordered to abstain from some activity which
involves damages to others — e.g. unlawful picketing. In the
Anglo-Saxon countries such acts may be prohibited under
penalty by means of an inj unction issued as a result of an action
in the courts ; under the French legal system by a "jugement
en référé" issued provisionally by a court of summary jurisdiction ; under the German legal system by means of an"einst1
Truax v. Corrigan (1921), 42, Supreme Court Reporter, 125-133. By
this decision the Supreme Court of the United States has declared an
Act of the State of Arizona permitting "peaceful picketing" to be unconstitutional, and, agreeing with the interpretation adopted by the Supreme
Court of Arizona, has held that the acts alleged in the case amounted
to peaceful picketing, and declared them to be unlawful.
* It should be borne in mind that, in order to escape the risk of being:
held liable for damages, trade unions in some countries have deliberately refrained from seeking to acquire the capacity to sue or be sued.
in the courts.
— 96 —
weilige Verfügung". _In the Anglo-Saxon countries the injunc^
tion may be temporary or permanent ; in the other countries
the temporary injunctions issued depend onthe decision in the
principal case. Such accessory methods make it possible
considerably to restrict the employment of certain means of
action by the workers, and therefore are of importance, especially
in the United States. The provisions of the Clayton Act, 1914,
concerning labour, particularly those of section 20, were
intended by Congress to limit the use of the injunction in trade
disputes to some extent. The courts have, however, considerably reduced the effect of these provisions by the narrow
manner in which they have interpreted them x.
SECTION
II :
THE LOCKOUT
The strike, the weapon of the workers, has its counterpart
in the lockout, the weapon of the employers. With the object
of exercising pressure on the workpeople by threatening them
-with unemployment, one or more employers may shut down
their works and dismiss their workers. The right of the employer
to take on and dismiss workers as he pleases has always been
recognised, and, as a consequence, the right to declare a lockout has not been subjected to very important limitations.
Nevertheless, the prohibitions and limitations imposed upon
the strike in relation to some form of conciliation and arbitration
EESÎË^-ÏÏF®__aPB^y equally to the lockout,, as also the limitations,
based on legislative provisions or ^principles of civil law, concerning collective agreements. As a general rule, legislation
has put the strike and the lockout on the same footing.
It is not necessary, therefore, to consider the question of
the legal situation which arises in the case of a lockout, as
it would only involve repetition in great part of what has already
been said concerning the strike.
SECTION
III :
OTHER METHODS
The strike and lockout are the weapons par excellence of
labour disputes. Certain other methods of action employed
during the stoppage of work are also employed under circumstances other than labour disputes. They all involve, in one
form or another, some description of ostracism, that is to
1
See decision mentioned on page 84, and footnote 3 on that page.
— 97 —
say, an agreement having as its object the exclusion of one
or more persons from certain social relations. Among them
the boycott may be specially mentioned.
In the economic and social fields, four types of such ostracism
may be distinguished : where it is used by employers to the
prejudice of other employers; by workers to the prejudice of
other workers ; by workers to the prejudice of employers ; or
by employers to the prejudice of workers.
The first of these types of action does not come into the
scope of the present study 1 . The second type bias already
been examined in its most important manifestation, namely,
in connection with the strike brought about by the employment
of non-union workers. In effect, strikes of this nature are
really a form of ostracism directed against such workers. In
this category also may be placed the measures taken against
strike breakers when they are denounced as "scabs", but such
action is more often dealt with under the heading of intimidation or interference with the right to work.
A.
Black Lists
The type of supplementary method used by employers against
workers most frequently takes the shape of the black list.
Employers communicate one to the other, either directly of
through the intermediary of the employers' association, the
names of organised workers or of workpeople against whom
they have a grudge either because they have organised strikes
or for other reasons. As already pointed out, this method of
action may imply some restriction of the right of combination
for trade purposes, and the legal measures directed against
it in sundry countries have already been mentioned 2.
The use of black lists has been formally forbidden in a number
of American States (e.g. Alabama, Connecticut and Iowa)3.
Even where black lists are made as the outcome of an agreement
between employers, the number of persons participating is
small, and proof of the existence of such lists is difficult to
obtain. The fact that employers are few in number enables
them to work in concert in an effective way without publicity.
1
Instances have occurred in Great Britain and in the United States,
however, of this type of action being employed in a labour dispute.
2
See above, p. 26.
3
Nevertheless, the provisions in question have been declared unconstitutional by the Supreme Court of the United States.
7
— 98 —
In point of fact, the success of black lists depends on their
being kept secret. Legal proceedings against employers on
this account are rarely successful. On the contrary, where
workpeople are concerned, the agreement cannot be kept
secret, and legal proceedings are usually successful.
B.
Fair Lists, the Union Label, etc.
The supplementary methods used by workpeople against
employers take a number of very different forms. In the first
place, there is the type where a trade union directly warns
its workers against a certain employer. This bears a strong
resemblance to the strike, and, in practice, is generally found
in connection with a strike l .
In Denmark it is forbidden to publish the names of the persons.
against whom the action is directed.
The counterpart of the use of black lists is the use of white
or fair lists which give the names of persons or of firms who are
not antagonistic to trade unions. This method of action can
always be applied without encountering opposition.
Other methods used have this characteristic, that they aimât injuring the employer in his economic activity, and not in
his activity as employer. In this context may be mentioned
the use of the union label, which consists in marking goodsproduced by organised workers with some mark showing that
they have been so produced. By reason of its preventive
character, this method does not necessarily constitute a direct
weapon of conflict, but may, in certain cases, be employed as.
such.
The use of the union label has been restricted to a certain.
extent by the fact that it is sometimes considered as a trade
mark. If trade unions are forbidden to trade, they have not
the right to adopt a trade mark. This was so in France ; but
the Act of 1920 has formally authorised the trade unions to.
employ a union label. In Greece and Spain also the trade
union label may be used. In the United States, where the
trade union label is widely used, it is not only authorised,.
but often formally protected by law.
1
The boycott of materials with the object of compelling employers,.
by threatening a strike, to cease delivering goods to other employers,
or to refuse to take goods from other employers, must be regarded as a.
sympathetic strike.
— 99 —
C. The Boycott
íf. The boycott is a form of indirect action of considerable
importance as a defensive measure, as it may be used independently of the strike. It consists in exercising a pressure on the
employer by means of an agreement among workpeople, having
as its object to hinder or prevent the sale of the employer's
goods. The boycott is used on a large scale in the United
States. In European countries it is not so frequently found as
the strike, but it is nevertheless of a certain importance, and has
been the occasion of numerous legal discussions.
The question of knowing if a boycott is legal or not is one
touching the trade combination only, and not, as in the case
of the strike, the individuals concerned — who clearly are under
no obligation to buy from a particular person. On the other
hand, it may affect the individual belonging to a trade combination in his capacity as member of this combination 1.
If the principle of free competition is granted, it is impossible
to forbid a customer not to buy or to prohibit an agreement not
to buy. Nevertheless, as with the strike, the object pursued
or attained, as also the method by which the boycott is conducted, may render it illegal by reason of the general principles referred to above in connection with the strike.
The boycott undertaken with the motive of revenge, or
having as its object to annoy, may be said to be forbidden in
all countries.
German jurisprudence has laid down certain rules with the object of determining in what cases the boycott must be considered
as "immoral" {unsittlich) by reason of the object aimed at.
It is so considered, in particular, when it is likely to damage the
business standing of the person concerned or when, although
the object is legitimate in itself, it affects the person boycotted
to an extent out of proportion to the circumstances of the case,
or when the object in view cannot be considered as legitimate
by reason of the peculiar conditions of the case in question 2.
In Denmark, a boycott having for its principal object the
complete closing down of an undertaking has been declared
illegal. Jurisprudence in Belgium and in the Netherlands:
applies the principle of abuse of right.
1
1
This is the case in the United States ; see above, p. 70.
Substantially the same conditions are found in Switzerland.
— 100 —
In the United States, the fact that a boycott may be considered
as an agreement with the object of interfering with inter-State
commerce is automatically illegal under the anti-trust laws 1.
In the case of the boycott, as in the case of the strike, it is
important to know in what manner certain typical cases have
been dealt with in the different countries.
Two forms of boycott exist, the primary and the secondary
boycott. The primary boycott aims only at preventing the
sale of goods by the person against whom the boycott is directed ;
the secondary boycott is directed against a third person having
business relations with the person whom it is desired to influence,
and has for its object the prevention of the continuance of
these business relations.
The secondary boycott is considered as illegal in a large
number of countries, as, for example, the United States 2 and
Germany s.
On the other hand, it would appear that in Denmark the
secondary boycott is authorised.
In the case of a boycott due to the employment of nonunion workers, the provisions ' applicable to the strike also
apply.
The boycott may be illegal, not only by reason of its object,
but also by reason of the manner in which it is conducted.
It is illegal when "immoral" (unsittliche) methods are used, e.g.
the spreading of false reports (in Germany and Denmark), or
the misuse of authorised methods (the Netherlands). The
provisions applicable to picketing incidental to a boycott are
the same as those applied to picketing incidental to a strike.
As regards the consequences which may follow from illegal
boycotting, it may be mentioned that in a number of countries
the boycott is frequently met by an injunction process, in
which case the use of this method may be considerably limited
as, for instance, in the Netherlands and the United Slates.
1
Loewe v. Lawler (1908), 28 S.C.R., pp. 301 et seq. ; Gompers v.
Buck's Stove and Range Co. (1911), 31 S.C.R. pp. 492 et seq. ; Duplex
v. Deering (1921), 41 S.C.R.. pp. 172 et seq.
2
It should be noted, however, that court decisions have varied considerably. In some cases the boycott has been condemned altogether,
while in others it has been authorised in all its forms. See the cases
mentioned in the preceding note, and Truaxv. Corrigan (1921), 42 S.C.R.,
pp. 125 et seq.
3
The precedents, however, are all pre-war.
— 101 —
Recapitulating the main points of the foregoing Chapter,
it would seem that the relation between the right to strike and
the right to combine for trade purposes is exceedingly close.
Many affirm that the two rights are identical, while others
contest this view. It would seem, in effect, that distinction
between the two is impossible. In any case, this study would
appear to show that limitations of the right to strike are also
limitations of the right of combination for trade purposes, with
some reservation in the case of the legal regulation of the trade
dispute.
The right of combination may be limited by a general prescription, or by a prescription applying to certain definite categories of persons by which it is forbidden to set up a combination
having the strike as one of its statutory objects.
The right of a trade union to declare a strike may be limited
indirectly or directly. It may be limited indirectly by providing
that participation of a member in a strike, or the fact that an
individual is a member of an organisation which has organised a
strike, may entail certain consequences such as prosecution
for damages, dismissal, etc.
It may be limited directly in the following ways : (a) by
forbidding trade unions to declare strikes ; (b) by laying down
a general principle, amplified by various provisions, tending
to prevent the exercise of the right to strike ; (c) by provisions
laying down that the defence of trade interests is not a sufficient
motive for authorising an organisation to declare a strike ; and
(d) by provisions recognising that the defence of trade interests
justifies the declaration of a strike, but laying down that
this right of defence must come after the right of property, the
non-restraint of trade, the right to work, and the right not to
combine.
The very existence of a trade combination may be impaired if
this combination is responsible to the extent of the total value
of its property for any legal wrong committed by one of its
organs, one of its members, or a third person for whom it is
responsible ; or if the fact that it has organised a strike or
participated in a strike under illegal circumstances may entail
its dissolution.
— 102 —
CHAPTER
IV
T R A D E C O M B I N A T I O N S AND C O L L E C T I V E
AGREEMENTS
Trade union action is not confined to industrial conflict
but may also take the form of friendly negotiations. This
second type of external activity grows daily in importance.
It takes the form of the conclusion of collective agreements.
A.
Nature and Conditions of Collective Agreements
Collective agreements are arrangements made between
employers or employers' organisations on the one hand and
workers' organisations on the other for fixing the conditions
of work of the workpeople concerned. They constitute one
of the means of attaining the object pursued by trade unions,
namely, the improvement of the social conditions of their
members. The extent to which collective agreements are concluded in a country affords some indication of the extent to
which the right of combination is recognised.
The scarcity or absence of collective agreements in a country,
however, does not necessarily indicate that the right of combination is denied, since the conclusion of collective agreements
depends also upon certain economic, social and other conditions.
Where industrial development has not reached a certain
level and where thè conditions of work of all the persons employed
in the same industry or in similar industries are not analogous,
it is not possible to regulate these conditions by a single agreement. This, however, does not necessarily imply that the development of trade unionism will be hampered, indeed rather the
reverse. All that need be done here, therefore, is to consider
the conditions of fact which must be fulfilled if trade combinations are to conclude collective agreements. These conditions,
which arise out of the nature of the collective agreement (essen-
— 103 —
tially an agreement concluded by groups of persons), are of
two sorts :
(1) The persons concerned must be convinced that the conclusion of collective agreements constitutes as uitable
means of fixing the conditions of work and should,
as a consequence, have the will to conclude such
agreements.
(2)
The persons concerned should have the assurance
that the conditions of work laid down in the collective
agreement will be applied in practice. Indeed, unless
there is behind collective agreements a power sufficient to ensure their application, either collective
agreements will not be made, or the collective agreements made will not achieve their object.
1.
The Will to Conclude Collective Agreements
The conclusion of a collective agreement presupposes therefore that employers and workpeople are disposed to make such
an agreement. In so far as a trade union confines its activities to questions such as benefits, insurance \ political action,
or violent conflict with employers (syndicalism), it is not possible
to make a collective agreement. The employer, on his side,
in order to render it possible for a collective agreement to be
made, must not expect to dictate the conditions of work and
should moreover be ready to discuss matters with the trade
unions, and not simply with his "own" workers. He should,
first of all, show his general good-will by recognising, either'
directly or through his organisation, the trade unions as qualified
representatives of the workpeople engaged in the whole of the
industry, in the trade, or even in the single establishment. His
acquiescence may be facilitated by the consideration that
the agreement, when it is made by a strong organisation,
affords some guarantee of the continuous working of his establishment for a certain length of time.
Trade union recognition may, in point of fact, be tacitly
granted by entering into negotiations. This frequently happens
in England, in the United States — where, however, such recognition is often refused (as also in Canada) — and in the majority
1
For Great Britain, see WEBB : Industrial Democracy, 1920.
* — 104 —
of countries. But recognition may also be of a formal nature.
It is then often the subject of a general agreement concluded
as a result of violent struggles, and, when the whole of the country is concerned, by an agreement concluded between the central
associations of employers and of workers. As examples of this
procedure may be cited the agreement of September 1899 in
Denmark, the compromise of 1906 in Sweden, and the agreement
of November 1918 in Germany 1.
The readiness to make collective agreements may also be
encouraged by a system of conciliation, whether set up by the
collective agreements in force or by the State. In the latter
case the trade combinations may have an influence on the composition of the conciliating body or even participate in its activity.
The conclusion of collective agreements may also be facilitated
by an arbitration system, in which the trade combinations may
likewise have a more or less considerable influence upon the
arbitration machinery, the awards of which form the basis of
collective agreements.
Finally, if the will to make a collective agreement is lacking,
resort may be had to compulsory arbitration, as is the case
in the States of the Australian Commonwealth and in Italy,
or by the recognition of the compulsory character of the arbitral
award, as is the case in Germany.
2.
The Power to Ensure the Execution of Collective Agreements
In the conclusion of contracts of employment, the individual
employers and individual workpeople should conform to the
rules governing the conditions of work laid down in the collective agreement. This agreement, in point of fact, does not
stipulate that contracts of employment ought to be concluded,
but only lays down how these contracts ought to be concluded
and what they should contain.
The extent to which trade combinations are able to induce
their members to observe the regulations made in a collective
agreement depends upon the strength of the trade combinations. This strength requires to be exercised in two directions.
1
On the other hand, organisations of workpeople may not recognise
employers' associations and, as happens in the United States, may
compel individual employers to conclude separate agreements with
them. This type of agreement is in effect a collective agreement but
is not specially dealt with here.
— 105 —
Not only must trade combinations have sufficient authority
over their members, but — an extremely important matter
from the point of view of the workpeople — the competition
of persons who are not members of the combination must
not be such as to nullify the provisions of the collective agreement by means of underselling. The trade. unions must
therefore be sufficiently strong to eliminate competition on the
labour market.
If these conditions are borne in mind, it will be understood
how it is that the development of collective agreements has
not kept pace with that of trade unions and how, even at the
present time, in certain countries, particularly those which are
backward from an industrial point of view, the development
of collective agreements meets with serious obstacles.
B.
T h e Position of Trade Combinations as regards
Collective Agreements
In those cases where collective agreements are made, the
extent to which trade combinations can achieve their objects
by such means depends upon the legal form of the collective
agreement. On this point three main questions arise :
(1) Who can be a party to a collective agreement ?
(2) What is the scope and bearing of the provisions of collective agreements ?
(3) What are the legal consequences of collective agreements,
so far as trade combinations are concerned ?
1. The Capacity to Make Collective Agreements
In most countries, so far as employers are concerned, collective agreements may be made not only by employers' organisations, but also by one or more employers acting alone. In
Italy, however, by reason of the legislation of 1926, legally
recognised employers' associations only are able to make collective agreements. The Italian Parliamentary Commission in
its report considered the fact that the objection might be
made that it is unjust to prevent an establishment from concluding special arrangements with its staff when the inferior nature
of its equipment, competition, or other reasons impel it to take
such a course. The Commission, however, considered that
— 106 —
these undoubtedly serious objections may be easily overcome,
since a collective agreement does not necessarily involve general
and absolute uniformity of conditions of work, and a collective
agreement may provide — as has been done in agreements
concluded in the course of recent years — for special rules and
conditions for certain branches of industry or for certain undertakings.
In Russia, on the other hand, only such agreements as are
concluded with a single employer are considered as collective
agreements.
So far as the capacity of workpeople to conclude agreements
is concerned, it is possible (a) that the right to conclude collective agreements may be refused to trade unions, (6) that this
right may be granted to trade unions along with other types
of associations, or (c) that this right may be granted to trade
unions exclusively.
The first of these cases, which is to some extent contrary
to the fundamental idea of the collective agreement, is not
laid down in the legislation of any country, so far as is known.
On the other hand, it often happens that the legislation of
a country regards as collective agreements those agreements
concluded by a group of workers who are not organised in a
trade union. In Denmark, France, Germany, and Switzerland
the statutory law contains express provisions on this question.
In Great Britain agreements of this type are recognised as
a general rule 1. In the United Stales the agreement made by
an employer with organisations known as "open shop" organisations has the same validity as the collective agreement
concluded between a trade union and an individual employer.
The rights of workpeople's organisations in an establishment,
however, are often restricted by legislation, the capacity to
regulate conditions of work being reserved to the trade combinations, since associations of workpeople in an establishment
do not offer any guarantee of independence.
In Germany the works councils are not able to conclude
collective agreements themselves 2.
The same holds good for Austria and Czechoslovakia, where
the organisations representative of the staff of an establishment
1
2
"WEBB : loc. cit.
Agreements concluded for a single establishment in Germany are,
it is true, of a collective nature, but they are not wage agreements.
— 107 —
are not able to do more than make agreements with their
employers supplementing existing collective agreements.
On the other hand, in Chile, by the Act of 8 September
1924, the company unions, which the workpeople in an establishment are obliged to set up, have an unrestricted capacity to
make collective agreements. In Tasmania the Act concerning
collective agreements only deals with agreements concluded
between employers and their own workers, but it is nevertheless laid down that the employer must employ a certain minimum
number of workpeople \
There remains the third case where the right to conclude
collective agreements is reserved to trade unions only. Legal
measures to this end are found in Finland, Italy, Norway,
the Netherlands, Queensland, and Russia. The same idea exists
in the Austrian Act, by which only those agreements which are
concluded by trade combinations of wage earners and of salaried
«mployees are collective agreements. Provisions adopted by
common agreement between the Assembly of "Companions" and
the trade guilds, and the form of regulation mentioned above
permitted to the works councils, are nevertheless "considered"
i y the Act as if they were collective agreements.
From the purely practical point of view, the legal situation
"would seem fairly uniform, for, in fact, collective agreements
are everywhere the work of trade combinations.
Closely connected with the question of determining who can
t e a party to a collective agreement is that of the legal conditions
which trade combinations, whether of employers or of workers,
must fulfil in order to be able to conclude collective agreements.
Logically, it might be inferred, since a collective agreement
is to a certain extent of a contractual nature, that the parties
should be independent groups, without any connection between
them, and made up on the one hand of workpeople and on the
other of employers. This has definitely been laid down by
the courts in Germany, for instance. Nevertheless, this principle is not always strictly applied. Allusion has already
been made to collective agreements concluded by organisations
of workpeople in an establishment. Experience shows that,
in fact, in the majority of cases, the workpeople of an establishment who conclude a collective agreement with their employer
1
The Wages Boards Act, 1920, as amended by the Act of 13 March
1924.
— 108 —
cannot be considered as an independent contracting party.
The "mixed" associations which, in France for example, are
considered as trade unions, may also conclude collective agreements. In Italy the "Central Liaison Organisations", that
is to say (to such extent as they exist), the corporations in
which employers and workers collaborate, although they may
not be able to conclude collective agreements, have nevertheless
the ability, by previous understanding between employers and
workpeople, to lay down rules which have the same effect
as a collective agreement and a legal force superior to that of
agreements in existence.
Legislation may, moreover, require special conditions, so
far as the capacity to conclude collective agreements is concerned,
with the object of securing that the right to conclude such
agreements be strictly reserved to certain qualified trade combinations. The chief question here is whether or not the trade
combinations must possess legal personality 1 . In Germany,
in Great Britain, and, as laid down by court decisions, in several
States of the United States, trade combinations may conclude
collective agreements, although they do not possess legal personality. Legal personality (or registration) is, however,
expressly required in Chile, Finland, and the Netherlands,
This condition is naturally fulfilled in all those countries
where trade combinations must always possess legal personality. Thus, in Italy, only those trade combinations which
are recognised have the capacity to conclude collective agreements. In Russia the organisations which are not recognised,
that is to say, those which do not conform to the conditions
laid down by the Pan-Russian Trade Union Congress, are not
considered as trade unions, and, as a consequence, have not
the capacity to conclude collective agreements.
2.
Objects and Nature of the Regulations made by Collective
Agreements
The question which now arises is to know to what extent trade
combinations are able to influence conditions of work by means
of provisions adopted in collective agreements.
Their influence in this respect depends on what questions
may be dealt with in the collective agreement, and still more
the legal implications of the collective agreement.
1
See above, p. 69.
— 109 —
In those countries where regulation of conditions of work
b y way of collective agreement is admitted, this regulation may
govern all of the conditions of work — wages, hours of work,
leave, etc. — to such extent as the conditions laid down in the
collective agreement are not contrary to the law.
The important point, however, is to know what is the legal
status given by legislation to the collective regulation of conditions of work : that is to say, whether trade combinations, by
concluding agreements, may fix the conditions of work compulsorilg, and if employers and individual wage earners are
obliged, in making contracts of employment, to respect the
provisions laid down in the collective agreement. On this point
opinions are very divergent, but two fundamental tendencies
may be discerned : from one standpoint, the collective agreement is a contract at civil law giving rise to certain obligations :
from the other, it is not a contract, but an agreement having
legal force and laying down certain rules.
If the collective agreement is considered as a contract, it
is sometimes admitted that such an agreement may be concluded
l y trade combinations in the name of their members, or, as
is more frequently the case at present, it is admitted that this
agreement is concluded by the organisations in their own name,
and independent rights belonging to. the members of the combination may be recognised.
If the collective agreement is not considered as a contract,
the rules it lays down are regarded either as having only a
moral force or as being legally enforceable.
Lastly, it is possible that there may be some combination
of contract and of regulation, the collective agreement being
declared partly contractual and partly normative in nature.
These intermediate forms are frequently found.
Taking into account the foregoing considerations with the
object of arriving at an answer to the question whether a collective agreement has compulsory force, we must come to the
conclusion that the collective agreement, considered as a contract
giving rise only to obligations at civil law, has, generally speaking, no compulsory force. Indeed, if it is admitted that trade
combinations conclude collective agreements in their own
names and are as a consequence themselves the contracting
parties, the individual employers and workpeople are to be
considered as third parties so far as these agreements are
concerned, and hence not bound by the said agreements. In
— 110 —
this case the collective agreement does not give rise to anything
more than a moral obligation to respect its provisions.
If, on the other hand, it is admitted that the individual
employers and the individual workpeople represented by the
trade combinations are parties to the agreement, such a view
involves taking from the trade combination the possibility
of ensuring that respect shall be paid to the conditions of
labour stipulated.
Such was the legal situation in Germany and France, among;
other countries, before the war and is still the situation in the
countries where there is no special regulation, as for example,.
Czechoslovakia.' The collective agreement, to such extent
as it is a contract, has thus conspicuous weaknesses, since t h e
individual may modify what the group decides.
The Act of 13 July 1907 adopted in the Netherlands was
designed to remedy this weakness. Whilst firmly maintaining
the doctrine that the collective agreement is oî a contractual
nature, this Act admits that an arrangement between employers
and workpeople which contains provisions contrary to those
of a collective agreement applying to the said persons may be
declared null and void on the demand of the workpeople party
to the collective agreement. In Norway the insertion of a.
provision of this character in the contract of employment is.
automatically null and void.
The collective agreement, however, cannot have full effect.
unless individual arrangements contrary to the provisions
of the collective agreement are not only forbidden but the
provisions of the collective agreement substituted in their
stead. Such is at present the system in force in Austria, Chile,.
Finland, France, Germany, Italy, Russia, and Switzerland 1.
The collective agreement, according to the predominant
doctrine in Austria and Germany, and according to many
authors in France, is thus considered to be of a "normative"
nature, and trade combinations accordingly have the power
to regulate conditions of work by means of autonomous agreements 2.
According to Australian law, collective agreements have
the same legal force as the awards of industrial courts. To>
1
Legislation in Austria, Germany, Italy, and Russia makes exceptionswhere the provisions of the individual contract of employment are morefavourable.
See below, p. 127.
— Ill —
make individual agreements by which lower wages than those
laid down in the collective agreement are paid, accepted, or
even agreed upon is a crime both as regards employers and as
regards workers 1.
Rules laid down by the Italian corporations, which act as
liaison bodies, must be regarded as having a purely normative
character without any contractual basis.
The Anglo-Saxon conception of the collective agreement is
that it constitutes a "gentleman's agreement" which, if violated,
cannot be enforced in the courts, but which has a certain protection, at least in Great Britain, by virtue of custom. Such
is also the dominating conception in the United Slates, in spite
of certain court decisions to the contrary.
Besides the danger to a collective agreement arising from
infringements committed by the members of the trade combinations themselves — a danger which the discipline of the combinations may prevent — there is the greater danger arising
from the action of persons who are not bound by this agreement.
To deal with the competition of these persons it may be decided
that they likewise shall be bound by the provisions of the collective agreement.
In Finland and in France an endeavour has been made to
arrive at a solution along the lines of a theory according to
which the terms of a collective agreement are binding so long
as one of the parties to an individual contract of employment
is also a party to the collective agreement. In Finland the
employer who is bound by a collective agreement has not the
right, so far as the scope of the said agreement extends, to
conclude contracts containing provisions contrary to those Of
the agreement, even with workers to whom the agreement
does not apply. According to French law the provisions of a
collective agreement are presumed to apply when a person
bound by the agreement concludes a contract of employment
with a third party, and does not expressly stipulate that the
agreement shall not apply.
In the Australian States, by the provisions of their Acts
on arbitration and wages boards, in Germany, and in Austria
by post-war legislation 2, the authorities may extend the scope
1
Queensland Act of 28 August 1923 and Tasmanian Act of 26 December2 1920.
The same is also true for Switzerland (Basle Town, Act of 1920, section
13, paragraph 1), when two-thirds of all of the employers and of all the
workpeople respectively are parties to the agreement.
— 112 —
of the collective agreement by means of a court or administrative decision (declaration of the compulsory and general nature
of the agreement). This is done, howeyer, only when the
collective agreement has acquired a "preponderant" importance.
The German Act requires that the demand shall come from
one of the parties to the collective agreement, while in Austria
the authorities themselves have the right to take the initiative in this matter. Austrian law goes still further in the sense
t h a t the scope of the collective agreement may be extended
not only, as in Germany, to certain third persons in a particular
region, but also to other districts.
In Russia and in Italy the collective agreement is legally
enforceable upon third parties. The Russian Labour Code
(Article 16) lays down that the provisions of the collective
agreement shall apply to all persons who are employed in an
undertaking or an establishment, whether or not they are
members of the trade union party to the agreement. In Italy,
where, by virtue of section 16 of the Act of 3 April 1926, the
recognised organisations legally represent all the employers
and workpeople on whose account they have been set up, it
is provided by section 10 of the same law that collective agreements shall apply also to all of these persons, whether they are
members of the organisation or not.
There is only a relatively small number of countries in which
the scope of collective agreements is thus extended, and even
in these countries, with the exception of Russia and Italy,
the range of the law is limited. In the majority of cases, therefore, the provisions of the collective agreement do not apply
to third parties and the protection of agreements must be one
of the questions dealt with by the parties to it. To attain this
object an exclusion clause (referred to in the. preceding Chapter)
is often inserted in the agreement. The validity of this clause,
bowever, is not everywhere recognised 1.
3.
Legal Consequences of Collective Agreements
Trade Combinations
as regards
The important question here is to decide what are the consequences in the event of a breach of the collective agreement,
whether this breach is committed by an individual employer,
an individual worker, or an organisation.
1
See above, p. 85.
— 113 —
In examining this question a distinction must be drawn
between those provisions of a collective agreement which
refer to the conditions of work and those which are designed
to ensure the application of the agreement itself.
(a) Trade Combinations and the Conditions of Work
laid down in Collective Agreements
First of all the regulation of the conditions of work requires
to ]ae considered. As the various individual contracts of
employment which are concluded have to deal with conditions
of work, it is necessary to know if the trade combinations are
able to enforce the rights arising out of individual contracts,
and if they can be held responsible in the event of these contracts not being carried out.
When the trade combination is considered as acting in the
name of individuals at the time of the conclusion of the
agreement,, that is to say, in the case where the agreement
gives rise to individual rights and obligations only, as also in
the case where the trade combination definitely acts in its own
name, and the individuals concerned are not bound thereby, it
is not incumbent upon the trade combination to enforce
individual rights.
Nevertheless, in certain countries, trade combinations are
permitted for practical reasons to enforce the rights of individuals who are parties to a contract of work in the event of the
other party violating the terms of the collective agreement.
This is so in Finland and in France, and, so far as wage earners
only are concerned, in Chile. In. addition, in these countries
the trade combination may also act in its own name in the
event of violation of the collective agreement. In Finland,
a workers' organisation may even act in its own name on behalf
of the workers who are not organised, in those cases where the
employer is bound by the provisions of the collective agreement.
In Italy the employers and workers who do not keep to the
collective agreements are by civil law severally responsible
t o their respective organisations.
In Russia any contract of employment may be rendered
null and void at the demand of the trade union.
In Queensland a trade combination may, with the authorisation of the industrial court, institute penal proceedings in
8
•
— 114 —
the event of wages being fixed at a lower level than those laid
down by the collective agreement.
On the other hand, to what extent is the trade combination
responsible for the conduct of members to whom the collective
agreement applies ?
• In Chile the law lays down in a general way that the workers'
organisations are responsible.
In Russia trade unions are free from all responsibility for
breach of collective agreements.
The question is somewhat obscure and controversial in
the majority of countries. In general the responsibility of
trade combinations does not go so far as to compel them to
ensure that their members maintain an attitude in conformity with
the spirit of the agreement, their sole responsibility being to see
that their members do not infringe the actual provisions of the
agreement 1 . This holds good for Finland and Italy. In
Germany and France the predominant doctrine prescribes the
same solution.
In Norway the trade combination is responsible only in the
event of its adopting an attitude contrary to the provisions of
the collective agreement.
In Denmark, when an organisation or its members infringe
the rights of the organisation of the second part, or the rights
of the members of that organisation, the latter may bring a
complaint before the arbitration court.
By civil law, infringement of these rights gives occasion
as a general rule for an application for damages. In certain
countries the application for damages may be replaced by a
fine (as for instance in Denmark, Finland, and Norway) and
it may even happen that the legal consequences of an infringement are taken out of the hands of the parties and give rise to
public prosecution (as, for example, in Australia).
In Russia the employers (managers of State undertakings
as well as managers of private establishments) who infringe
the collective agreements that they have concluded with trade
unions are liable to a fine, to hard labour, or to imprisonment
(Labour Code, sections 133/132).
1
On the other hand, it may be that the collective agreement itself
contains some provision regarding this question. This point is expressly
covered in Italy.
— 115 —
(b)
Trade Combinations as Parlies lo
Collective Agreements
The second group of legal consequences concerns the position
of trade combinations in their capacity as parties to the collective agreement. They are held responsible for maintaining
peaceful relations and for supervising the application of agreements. This includes particularly the prohibition of strikes,
lockouts, etc., menacing the existence of the collective agreement
during the period of its application *. Other acts coming within
the responsibility of trade combinations may also constitute
an infringement of the collective agreement and be prohibited
accordingly.
Where the doctrine which regards the collective agreement as
a bilateral contract is accepted, such acts as these render the
culpable party liable to damages. This situation is to be
found in all of the countries where thé law does not contain
provisions to the contrary and where as a consequence the principles of Roman law with regard to contracts hold good. But
in most countries this question is not completely settled, and
there is much controversy over its details.
When the responsibility of the trade combinations is unlimited, they run great risks. For this reason in Russia, as
already mentioned, the responsibility of trade unions is completely waived. In Italy on the other hand their responsibility
is expressly laid down and they must constitute a guarantee
fund sufficient to permit their meeting the obligations which
may arise out of the collective agreements 2.
In many countries the liability of trade combinations to
damages is likewise waived in the case under consideration and
is replaced by a fine or a penalty, with a maximum laid down
by law. This is so in Denmark, Finland, and Norway.
From the above explanation it is evident that legislation
on collective agreements is without any doubt of the very
greatest importance to trade combinations and that such legislation profoundly influences their legal position, provided always
that they have attained a certain development. Freedom of
1
On this point, see above, p. 90.
For the question of the limitation of responsibility of trade combinations in general, see above, p. 70.
1
— 116 —
association and the right to act in association is only guaranteed
if trade combinations are able to conclude collective agreements.
On the other hand the positive influence that trade combinations exercise on the conditions of work by means of the conclusion of collective agreements, the rights which they are recognised
as possessing in the event of infringement of the collective
agreement, and the duties which are imposed upon them depend
to a great extent on the development of the trade combinations,
as also of social legislation in general. These questions are not
only regulated in different manners in the different countries,
but are also the subject of controversy as to the consequences
which may arise in the last analysis. Although the solution
of these questions is of the very highest importance for trade
combinations, they cannot here be determined from the international point of view.
CHAPTER V|
TRADE
COMBINATIONS AND MANAGERIAL
CONTROL
The regulation of conditions of work by means of collective
agreements is only the framework within which are laid down
the conditions of the life of the working-man in the establishment
which employs him. These conditions closely affect the whole
running of the establishment, constituting, as it were, a part
of its management.
For a number of years, and particularly during the World
War, in many of the belligerent countries, and even in neutral
countries, as a consequence of the necessity of producing rapidly
and of associating together all of the producers, employed as
well as employers, the workers in individual establishments
have been interested in the question of managerial control.
The point which arises here is to determine how this participation of workpeople in the running of an establishment
affects the trade union — whether it is in opposition to the
trade union, apart from it altogether, or in co-operation with it.
It is this question which it is proposed to examine in the present
Chapter.
— 117 —
The influence of trade combinations on the regulation of conditions of work within establishments, and, to put the matter
more generally, on the management of undertakings, may
manifest itself in two ways : (1) by representation of the interests
of the workpeople in each establishment ; (2) by actual participation in the management of the establishment.
A.
Action within the Establishment
Only those matters concerning the workpeople belonging to
a given establishment can be taken up with the management
of that establishment. In what measure have trade unions the
right to intervene in this question ? Two possibilities may
arise : either the trade unions will intervene in their own name
on behalf of the workpeople of an establishment, or they will
act through the intermediary of some representative body of
the workpeople of the establishment.
1.
Direct Action
The first of these cases is the one less frequently found.
In Russia the workshop regulations of the different establishments must be drawn up by the management of the establishments and the local sections of the competent trade unions, or
by the central management and the Central Council of Trade
Unions (Labour Code, section 54-55). The same applies to the
drawing-up of rules relative to output (Part VII of the Labour
Code).
But in many other countries the workshop regulations may
be made the subject of a collective agreement, that is to say,
of an agreement concluded with the trade unions. This possibility follows from the explanations given above relative to the
clauses which may form part of the collective agreements.
In Russia the trade unions have likewise the right to intervene
directly in the establishment. For example, the members of
the executive council of the trade unions or other persons duly
appointed for this purpose may visit at any time the various
parts of the establishment, and any representative of the management who attempts to prevent them is subject to a penalty.
In Australia (Queensland) any trade union official may, with
the authorisation of the executive committee of the union,
visit those parts of the establishment where members of the
— 118 —
union are employed, or in a general manner where workers
belonging to the same trade are employed, in order to speak to
or arrange matters with them. Any person who prevents the
trade union official from doing this is liable to a penalty. On
the other hand, this representative must not intentionally
interrupt work.
In Germany a delegate of the economic organisations of the
workpeople represented in the establishment may take part
in the meetings of the workpeople in a consultative capacity.
2.
Influence upon the Body representing the Workpeople in
the Establishment
The preceding examples show that the trade unions' right
to intervene is very restricted, even in a country such as Russia.
The second form which relations between the trade union and the
establishment may take is indirect action, the special bodies
representing the workpeople in an establishment acting as
intermediaries.
In nearly all countries the trade unions have men whom they
trust in the establishments. This of course is a question of
trade union policy, not of legislation. Nevertheless, it is a point
which is often expressly covered in collective agreements (as,
for example, in Denmark and the United States). In some countries the law provides a method by which the interests of the
workpeople in certain types of establishments may be represented. Thus works councils (Betriebsräte) and workers'
committees (Betriebsausschüsse), etc., are found in Germany,
Austria, Luxemburg, Norway, Russia, and Czechoslovakia.
The provisions of the Russian Act of 1917 concerning workers'
councils, which is still in force in Estonia and Lithuania, are
not of importance in this connection 1.
What is the position of trade combinations in respect to
these representative bodies ? Are their rights enlarged or
restricted as a consequence of the existence of these bodies ?
(a)
Where the Body representing the Wage Earners in an Establishment is Part of the Trade Union
In Russia the works council is part of the trade union, which
explains how the trade union comes to have so many rights
1
In the majority of other countries this question is one of policy rather
than law.
— 119 —
in the different establishments. The election of the works
council is regulated by the trade unions themselves.
(b)
Where the Body representing the Workpeople in an Establishment is an Independent Institution
In the other countries works councils, etc., are not part of
the trade unions. But since these councils are elected by the
staff of an establishment it rests with the trade unions to propose
their own candidates as representatives and to obtain their
election.
In Germany, Austria, Norway, and Czechoslovakia the law
endeavours to distinguish as clearly as possible between the
competence of the body representing the staff of an establishment and the competence of the trade union, with the object of
preventing the activity of the trade union from being obstructed
by the body representative of the staff of the undertaking.
As explained in the preceding Chapter, it is for these reasons
that the right to conclude collective agreements has been reserved to trade combinations. On the other hand, the duty of
controlling the application of collective agreements and of
completing them, if needs be, is left to the bodies representing
the workpeople of the establishment (although large reservations
are sometimes made in favour of the trade unions), it being
held desirable that the bodies representing the workpeople
in the establishment should supplement the activity of the trade
unions.
In Luxemburg the works councils have a voice in the drawingu p of collective agreements.
In the countries of Central Europe the works councils are
called upon to fulfil certain duties which constitute them autonomous guardians of the right of combination within the establishment. In Germany the law expressly instructs the works
council to intervene in order to safeguard the workpeople's
Tight of combination. In Germany, Austria, and Czechoslovakia
they may have recourse to a special procedure in order to
prevent dismissals arising from the fact that the persons concerned are trade unionists.
In Russia, in view of the form of organisation of the works
councils and of the State in general, it is not surprising that the
workers' councils are given the right to collaborate through
the competent trade unions in the regulation and organisation
— 120 —
of the national economy. In Germany, Austria, and Czechoslovakia the bodies representing the workpeople of the establishment (and not the trade union) have a restricted right of control
in the establishment. It is evident, however, that they cannot
exercise such control effectively unless they are supported by
the strength of the trade unions. It follows that, when the
bodies representing the workpeople of an establishment are
autonomous bodies independent of the trade unions, they are
not able to guarantee the right of combination — even in those
cases where they have certain legal guarantees — unless they
are really under the influence of the trade unions. If this is
not the case, there is reason for fearing that these bodies may
be in opposition to the trade unions, as sometimes happens.
In all countries where provision is made by law for bodies representing the workpeople of an establishment they are under
the legal obligation to take action with the object of ensuring
the maintenance of discipline in the establishment and of good
understanding between the workpeople and the employer.
In accomplishing this task the bodies representative of the
workpeople may find themselves in direct opposition to the
trade unions by reason of the conflict of their respective duties.
If, for example, the body representing the workpeople of an
establishment supports the activity of a trade union which is
endeavouring to defend the interests of a trade by means of a
strike, it violates the obligations imposed upon it in the interests
of the particular undertaking, although not of the trade. To
this extent the setting-up of bodies representing the workpeople
in an establishment may result in a limitation of the activity
of the trade unions x.
The company unions provided for in Chile by the Act of
8 September 1924 must be considered as institutions competing
with the trade unions. These company unions are compulsory
organisations of the workpeople in certain large establishments
and are on the same footing as the trade unions inasmuch as
they are recognised by civil law, and, like the trade unions, may
conclude collective agreements, may act as representatives of
the workers in dealing with the employer, may take part in
conciliation proceedings in this capacity, and, in particular, may
set up insurance schemes for the workpeople in the establishment in question. These company unions differ from trade
1
The question of knowing to what extent this involves certain restrictions on the action of workpeople who are members of the body
representing them in the establishment is examined above, pp. 79. et seq.
— 121 —
unions in not having to acquire legal personality, since that is
conferred upon them at the beginning, and they are not under
the control of the authorities to the same extent as the trade
unions. The law does not lay down that these company unions
must be financially independent, and they may accept voluntary
contributions from the employer. In such circumstances
as this there is no bond between the company unions and the
trade unions, but, on the contrary, an antagonism.
The Whitley Council scheme which is now in operation in
a considerable number of British industries is on a different
basis. Its primary organ is the National Council, and, although
the original scheme provided that district councils and works
committees should also be set up under its auspices, this has
been done only in a certain number of industries. All the
bodies created on the Whitley plan are joint bodies with equal
representation of employers and organised workers. They
only exist in organised industries and are closely linked with
the employers' associations and trade unions. On the other
hand, in a number of industries which have not specifically
adopted the Whitley plan, joint bodies may be found in active
operation, particularly in the railways and some other of the
transport undertakings, while works committees have been
established in a considerable number of factories on various
models but usually working in collaboration with the trade
unions concerned.
In the United States there has also been a considerable movement since the war for the voluntary establishment of works
committees in various forms. Most of these committees have
been set up by the employers in non-unionised industries,
largely with the object of preventing trade union organisation.
These committees are condemned by the American Federation
of Labour as not permitting free representation of the workers'
point of view, because the workers' delegates are dependent
on the will of the employer. On the other hand, on certain
railways joint committees have been created on the initiative
of the unions in order to stabilise employment and to increase
production, while similar co-operation may be found between
employers and trade unions in the clothing trades and, to some
extent, in the printing trades. These bodies vary greatly
in constitution, functions, and efficacity, but it may be said that
their general result has been to provide an important means
of regular communication and co-operation between employers
and workers in the individual establishments where they exist.
— 122 —
B.
The Right of Trade Unions to Share in the Management
of Undertakings
The right of trade unions to intervene directly in an establishment, which is recognised in a small number of countries in
a very restricted and indirect manner (except in Russia), should
logically entail a claim not only to some measure of control,
but to a positive participation in the management of the undertaking itself, as also in profits or share capital. "With the exception of the first phase in Russia in 1922, this type of intervention
has nowhere been put into practice. The restricted participation in the management of certain undertakings laid down
by law in Germany, Austria, and Czechoslovakia appertains
to the works council (the members of which are obliged not to
reveal trade secrets) and not to the trade unions. In practice,
moreover, this participation in the management is not of importance. On the other hand, the participation of workpeople
in the profits or in the share capital of an undertaking often has
the effect of hindering the efforts of the trade unions. For this
reason profit-sharing and employee-stock-ownership are everywhere regarded by the trade unions with mistrust. The Chilean
Act of 8 September 1924 is the only one which endeavours to
regulate the participation of the company unions, for which
it provides, in the profits of an undertaking. The very fact
that these company unions have been set up apart from the
trade unions shows that no special right appertaining to trade
unions in this matter is to be expected from such participation.
CHAPTER
VI
PARTICIPATION OF T R A D E COMBINATIONS
IN S T A T E A C T I V I T I E S
Certain of the external activities of trade combinations and
certain of the activities of the State tend to overlap, in
which case it may happen that the State calls upon the trade
combinations to help in the setting-up of a legal system concerning trade interests.
— 123 —
The extent of the collaboration may vary considerably.
The trade combinations may participate in the whole of the
work of drawing up legal rules and in the making of arrangements
for the application of these rules. Or they may merely be
called upon from time to time, and then only in a consultative
capacity. Between these two extremes there is room for other
methods.
In the first place two spheres of possible collaboration may
be examined :
(1) Participation in the preparation of social legislation,
which in certain cases may go as far as the drawing-up
and making of rules of law.
(2) The application of social legislation.
It is then proposed to examine the sufficiently rare cases
where the relations between trade combinations and the State
are regulated in a uniform manner and, so to speak, codified.
A. Preparation of. Social Legislation
The minimum of collaboration between trade combinations
and the State takes the form of consultation with the trade
combinations at the time when bills are being prepared, but
without any obligation on the part of the State authorities to
take such a course. In such cases the authorities submit Bills
in draft form or invite representatives of the trade combinations to be present at the meetings of governmental or
parliamentary commissions. In the past this was usually done
with employers' associations, whose representatives were called
in as experts on economic questions. In most countries, these
days, representatives of trade unions as well as of employers'
associations are called upon. In countries where this custom
is firmly established, rules have already been drawn up laying
down the rights and the duties of the different parties so as
to ensure a regular collaboration without friction. The scope
of this type of trade union activity tends, as will be seen in
greater detail at a later stage, to extend more and more.
In Finland a representative of the employers' associations
and a representative of the trade unions are attached to the
Ministry of Social Affairs.
As a general rule organisations are not called upon to take
a direct part in deliberations, but special State organisations
— 124 —
are set up (commissions, chambers, councils, etc.), which include
representatives of employers and of workpeople. Such are the
various labour councils (whether a single council forming part
of the central authority or a hierarchy of councils attached to
a central council), workers' chambers, chambers of commerce,
trade chambers, etc., where the representatives of the- different
interests meet separately, and "mixed" councils and economic
councils where all interests are represented, and where the trade
unions represent the interests of their various trades. In all
cases the representatives of trade interests upon these organisations may be appointed in conformity with some legal
provision or otherwise.
Labour councils, exercising purely advisory functions,
comprising representatives of the employers' associations and
of the trade unions, together with other experts, exist in
Belgium, Bulgaria, the Netherlands, Roumania, Sweden, and
the Saar. In Brazil an advisory council forms part of the
Ministry of Labour ; in Poland there are national councils
for emigration and social welfare.
In Austria and the Serb-Croat-Slovene Kingdom workers'
chambers have been set up by the side of the chambers of
commerce, designed solely to represent the interests of the
workpeople. In Luxemburg likewise trade chambers are formed
according to the various trade interests which they are required
to represent, and workers' chambers and chambers of salaried
employees exist independently, along with the employers'
chambers. In both cases the members of these chambers are
as a general rule elected from a list of candidates drawn up
by the organisation concerned.
In Spain the Institute of Social Reform, the General Assembly
of which included 16 representatives of the employers and 16
representatives of the workpeople among its total of 60 members,
played a similar part to that of a National Labour Council, if
not of a Ministry of Labour. By the Decree of 21 April 1925,
a Council of Labour, Commerce and Industry has been set up,
in which trade interests are no longer directly represented.
The task which previously devolved upon the General Assembly
of the Institute is now performed by a Labour Council similarly
constituted.
In Italy, since the reform of the National Economic Council
in 1925, trade combinations no longer participate in the work
of that body. They may, however, obtain a hearing before the
— 125 —
nomination of members, and in such a case they are obliged to
make proposals.
On the other hand, in Germany, France, and Czechoslovakia,
trade combinations take a part in the activity of the economic
councils.
The influence which organisations acting in an advisory capacity may exercise can in certain cases be extremely strong,
and affect very considerably the course of legislation. This,
however, is purely a matter of fact. Organisations cannot be
considered as participating in the legislative function unless they
are able to present Bills in their own name — that is to say,
to intervene independently in the making of laws or on their
own authority to promulgate rules of law.
The influence that trade combinations may exercise on
Parliament in those cases where representatives of these combinations are Members of Parliament, or where a Labour Party
defends the interests of trade unions, need not be considered
here. But it is evident that it is precisely in those countries
where the relations between the trade combinations and the
State are not legally regulated (or, if they are regulated, then
only to a small extent) that trade combinations make special
efforts to acquire political influence L.
In Russia, during the first period of the Soviet regime, the
trade unions regulated the conditions of labour by means
of decisions having compulsory force. To-day these conditions
are regulated by legal provisions promulgated by Government Departments. But in point of fact, seeing the close
relations between the Workpeople's Commissariat and the
Central Council of Trade Unions, the influence exercised by
the latter on legislation is sufficiently evident.
In Germany and Luxemburg trade combinations collaborate
in the making of laws, but only indirectly and to alimited extent,
since the organisations themselves have no legislative functions,
these appertaining to governmental bodies — the Reich Economic Council in Germany and the Trade Chambers in Luxemburg. The Reich Economic Council, which, up to the present,
is only a provisional body, possesses, by virtue of Article 165
of the Constitution, the right to demand that Bills of fundamental
importance from the social or economic point of view shall be
1
See, however, the discussion at an earlier stage of trade combinations
and political activities, pp. 41 et seq.
— 126 —
laid before it. The Luxemburg Trade Chambers may submit
Bills to the Government. In both cases this right of submitting
Bills can be exercised only to a limited extent. The two
bodies have not the right to initiate legislation themselves,
that is to say, they cannot lay Bills before Parliament, which
right belongs to the Government. On the other hand, the
Government must lay before Parliament any Bill submitted
to them under these circumstances.
As international comparison shows, legislation is not the
only source of the law, although in social matters it is of preponderant importance. Orders, agreements, rules laid down by
organisations, even the customs which they ordinarily follow,
are other sources, as has already appeared in the preceding
Chapters, more particularly in that dealing with collective
agreements. Administrative practice and court decisions, especially in the Anglo-Saxon countries are constituent factors
of the law of the land. The question which must now be
examined is : what influence do trade combinations exercise
in this direction ?
Legislation and the regulations made by organisations may
supplement one another. In Great Britain, as also in other AngloSaxon countries, recourse is not usually had to legislation in
those cases where a matter is already regulated by a collective
agreement. Thus, for example, while the English law regulates
the hours of work of miners underground, hours of work on
the surface are not governed by law, but only by collective
agreements.
Legislation may also be confined to laying down certain
principles and leaving the application of these principles
to the parties concerned — in the present case the trade combinations themselves. To such extent as this simply involves
an application of the general principle of Roman law, that,
except where a legal provision is jus cogens (ordre public),
its rulings may be changed by agreement between the parties,
this form of procedure does not call for any remark. When,
however, organisations use the possibility thus open to them
of making legal rules, applying to a trade or an entire industry,
it is evident that the scope of their power has been enlarged.
French law presents interesting examples of a combination of
these two forms of regulation — State legislation and the rules
of autonomous organisations. The application of the French
Act of 23 April 1919 on hours of work is applied in the various
— 127 —
cases by regulations of public administration. Before the
promulgation of these regulations, organisations must be consulted, and, moreover, these regulations should be in accord
with the provisions of collective agreements in force. In
the same way the French Act of 9 December 1923 concerning
weekly rest depends for its application upon the existence
of collective agreements 1.
B.
Participation in the Application of Legislation
In some countries, by a process of natural evolution, the trade
combinations have come to the point where they participate
in the application of the law, that is to say, in that, branch
of State activity which is usually termed public administration.
This evolution is attributable to a number of different causes.
In the first place, in order to put into force the measures which
it has adopted, the State naturally has recourse to the co-operation of those in whose interests these measures were taken.
As a consequence, so far as social measures are concerned, the
intervention of trade combinations is to be expected in those
cases where the State recognises them as official representatives
of social interests.
In the second place, the institutions set up and developed
by trade combinations for the benefit of their members affect
the general welfare of which the State is the representative.
Lastly, the simplest means of overcoming the obstacles in
the way of the application of laws consists in calling upon the
persons affected to guarantee that the law shall be respected.
The question arises to what extent in actual fact do recognised
trade combinations participate in public administration. In
Russia the trade unions take an active part in all social administration. In other countries participation is more limited
and must be examined in some detail.
1,1
It becomes more and more apparent that the immense number,
the complexity, and the diversity of questions arising out of the social
and collective life of the twentieth century, which require legal solutions
— that is to say, solutions laid down and compulsory for all-— no longer
make it possible for Parliament to maintain the monopoly of legislation...
The co-operation of Members of the two Chambers, and of technical
and trade experts, the former limiting their work to that of formulating
general principles and the latter performing the remainder of the task
of legislation, is perhaps only one more stage in the collaboration of the political and the technical elements." (GRUNEBAUM-BALLIN, in the Revue
Pol. et Pari., CII, pp. 42 et seq.)
— 128 —
Here, again, it is necessary to distinguish between indirect
participation and direct participation.
Indirect participation comes about through the representation of trade combinations on certain special bodies (councils,
chambers, etc.), as, for example, those dealing with the supervision of the application of social measures (hours of work,
night work, etc.) and regulations concerning factory sanitation, housing, technical training, etc. These councils and
chambers, along with their legislative functions mentioned
above, have also administrative functions. These functions
are particularly extensive when their territorial competence
is limited, as is the case in the workers' chambers in Austria
and in the Serb-Croal-Slovene Kingdom, the trade chambers in
Luxemburg, the chambers of labour in the Saar, and so on.
In Portugal the economic council is a purely administrative
authority. In Spain the juntas are independent administrative authorities dealing with labour questions. They arc
divided into local juntas and provincial juntas. The local
juntas include, together with representatives of the authorities,
an equal number of representatives of employers and of
workpeople. The representatives of the employers and workpeople in the provincial juntas are in part elected by the trade
combinations of the province, and in part nominated by the
local juntas.
In Great Britain the joint industrial councils cannot, strictly
speaking, be classed among the organisations at present under
consideration. In point of fact legislation does not prescribe
their form of constitution, and they are freely set up by employers
and workpeople. Nevertheless, setting aside their activity as
conciliation bodies, they may exercise administrative functions
analogous to those of thé councils in the countries mentioned
above.
Direct participation of organisations in public administration, by reason of its many-sided nature, is difficult to describe
in any one country,'and still more so, in a sufficiently explicit
manner, in a comparative international study. Some few
typical examples only will be taken here.
In Argentina and Brazil the law recognises in a general way
the right of trade combinations to bring a complaint before
the administrative authorities in the event of violation of
protective labour legislation.
In France the right to bring a complaint before the ordinary
— 129 —
and administrative tribunals is permitted to associations and
combinations of workpeople in the event of a violation of labour
laws, even when it is the interests of unorganised workers that
are concerned. This arrangement is in conformity with the
conception by which the trade unions are considered as the
only representatives of the interests of a trade.
It is evident that the workers' organisations are particularly
interested in being able to lodge complaints with factory inspectors in an effective manner or even to collaborate actively
with them. In this connection, the part which must be
played by workers' committees in particularly dangerous
industries may be mentioned. Often the representatives
of trade unions are called upon, where by law allowed, to act
as auxiliary or deputy inspectors, along with the factory
inspectors themselves. This is the case in Austria, Bulgaria,
Finland, the Netherlands, and Switzerlandl.
Alongside the control of the application of laws there is the
application itself. Two groups of laws may be distinguished
here : those concerning the preparation of the contract of
employment, and those concerning the guarantee of conditions
of work laid down. In this respect the form of participation
in the State's functions is a double one ; on the one hand it
corresponds to the internal activity exercised by the organisations themselves on behalf of their members, and on the
other hand with the collective external activity of the organisations. Among the activities of the first type may be mentioned unemployment benefits, workers' insurance, continuation
schools for workers ; among the activities of the second type,
protective institutions for guaranteeing wages, hours of work,
etc.
Generally, trade combinations take part in the public employment exchanges, their representatives having seats on the administrative committees, and collaborating with the authorities.
Instances of this are to be found in Germany, Belgium and
Poland. The labour exchanges (bourses de travail) and the
institutions set up by the trade combinations and subsidised
by the State have already been mentioned.
The part played by trade combinations in rendering assistance
to workers unemployed is of an analogous nature : sometimes
1
See INTERNATIONAL LABOUR O F F I C E : Factory
Inspection,
pp. 101,
106, 125, e t seq. 1925.
9
— 130 —
the representatives of trade combinations take part in the
running of the institutions set up by the State and the municipalities for dealing with unemployment, sometimes the trade
combinations are themselves entrusted with the duty of paying
the benefit and are subsidised by the State 1.
In Belgium a "crisis fund" exists, in the running of which
the representatives of trade combinations take part.
Cases where trade combinations as such collaborate under
the law in the provision of social insurance are less frequently
found. Instances occur in Germany (Reichsknappschafisgeseiz)
and in Lithuania. In practice, the representatives of the insurers
and of the insured on the various bodies managing the insurance
usually belong to the organisations.
As regards continuation schools for workers, whether for
technical or for general education, there exists in certain countries
a more or less close collaboration between the State and the
trade combinations. One interesting example which may be
mentioned here is the workers' university (Akademie der
Arbeit) and the economic schools in Germany.
As regards apprenticeship, joint committees are found which
exercise a supervision or some form of regulation, as for example
in South Africa, Finland, New Zealand, and Queensland. In
the last-named State in particular, extensive rights are granted
to the trade combinations.
The administrative authorities of the State competent in the
matter of questions relating to labour do not usually go so far
as to intervene directly and positively in the drawing-up of
conditions of work. This is a point which is most suitably
dealt with by common agreement between the parties, whether
individuals or organisations. The questions which arise in
this connection, and in particular the problem of the collective
agreement, have already been examined. "When the State
intervenes in these questions, it confines itself to fixing minimum
conditions for which the parties must in any case make allowance. As already shown, this is so for the regulation of hours
of work. In this connection also may be mentioned the wages
boards and arbitration courts of Australia, which may fix minimum wages for the different industries. In general the trade
combinations both of employers and of workpeople are equally
1
See INTERNATIONAL LABOUR
O F F I C E : Unemployment
Studies and Reports, Series C, N o . 10. Geneva, 1925.
Insurance.
— 131 —
represented on these bodies \ In Europe the authorities fix
minimum wages or other minimum conditions of work only
in exceptional circumstances, and usually only for those trades
requiring special protection. Thus in Great Britain the trade
boards which are made up of an equal number of representatives
of employers and of workpeople, together with impartial persons
nominated by the Ministry of Labour, fix minimum wages for
unorganised trades, that is to say, trades employing workers who
for the most part do not belong to trade unions. On the
committees for fixing wages for homeworkers (as for example
in Germany, France, Czechoslovakia, and in many other countries) the trade combinations are jointly represented as a general
rule. In Argentina organisations have the right to obtain a
hearing before the wages boards concerning the fixing of
minimum wages.
Cases where trade combinations participate in the activity
of conciliation and arbitration machinery set up by the State are
frequent. There is a natural explanation for this, since such
proceedings are not so much of a judicial nature, where the
dispute is decided by a third party, as of a negotiatory character.
In general, the State even consults the wishes of trade combinations in the nomination of an impartial arbitrator or a
conciliator. A provision along these lines is often found in
the various Acts (e.g. Denmark and Germany). It may also
happen that the trade combinations are not represented on the
arbitration and conciliation bodies, as for instance in Italy,
where the labour courts are made up of three officials and two
"citizens".
The collaboration of trade combinations in the work of the
State is not limited to social administration. It is also found
in the administrative functions of an economic or other nature.
An example of this has already been noted in the participation
of trade combinations in the activity of economic councils.
Others are to be found in the various branches of administration.
In Argentina and Czechoslovakia trade combinations play a
part in questions concerning housing ; in Germany, in the
construction of housing ; and in Germany, Austria, Italy, and
1
As for example in Queensland and Western Australia. In South
Australia and Tasmania, the law provides for joint representation of
employers and of workpeople, but does not provide for the participation
of trade associations in the work of these bodies as representative of
employers and of workpeople.
— 132 —
Czechoslovakia in the State regulation of prices. In Hungary
the law provides for the participation of agricultural combinations in the activity of agricultural commissions, chambers of
agriculture and rural chambers. In a certain number of
countries the administrative authorities, communal or central,
without being expressly compelled by law, request trade combinations, as and when occasion arises, to give their advice,
or to take part in a decision.
Statutes are applied by courts and the precedents made by
these courts have also the force of law. In general, trade
combinations do not take part in the work of the ordinary
courts except in the people's courts in Russia. Elsewhere
the question only arises for labour courts and courts dealing
with insurance and similar questions which admit of the collaboration of trade combinations in most of the countries where
courts of this type exist.
C.
Uniform Regulation of the Participation of Trade
Combinations in the Activity of the State
As is evident, the extent to which trade combinations participate in the activity of the State varies greatly from country
to country. As a general rule the regulations in this respect
are not the outcome of any comprehensive plan, but have
been framed as necessity arose. The trade combinations themselves generally consider that their principal task does not lie
in the direction of legislative activity which, after all, advances
their objects in an indirect fashion only. Nevertheless, certain
countries have recently begun to regulate in a uniform manner
the various relations between the trade combinations and the
State.
1.
Russia
In Russia, during the first period of the Soviet regime, the trade
unions were considered as one of the component factors in the
"Workers' State". To-day the State and the trade unions are
independent of one another, but there is a considerable amount
of interpénétration, and a large number of provisions give
the trade unions a legal influence over the activity of the State
such as is nowhere else found.
— 133 —
2.
Italy and Spain
In Italy, the Act of 3 April 1926 and the Public Administration Regulation of 1 July 1926, and in Spain the Ordinance
of 26 November 1926, make over to the State the task of regulating the whole range of social questions, while calling upon
the trade combinations for their assistance in this task. This
regulation naturally deals with all the problems of trade union
law which have been put out in the previous Chapters. But
the outstanding characteristic of the system in operation in
these countries is the regulation of the relations between the
trade combinations and the State. The principal features of
this regulation may be indicated here.
In Spain, as in Italy, the "corporation" is the instrument
set up for regulating social questions. It is a public organisation
constructed on the model of the trade guilds of the Middle Ages.
Its task is to bring together the various trades and industries,
and among other matters to regulate social relations. The
corporations are set up, on the order of the authorities, for the
different trades and branches of industry which are enumerated
in detail, and they are incorporated with the State. Since
the trade combinations of employers and of workpeople are the
constituent factors of the corporations, they are thus placed in
a certain definite relation with the State.
The details of this regulation are not the same in Spain as
they are in Italy, although the Spanish Ordinance was inspired
by the Italian legislation.
The Spanish form of regulation starts with the corporation.
The trades and branches of industry to which the new form of
regulation applies are represented by joint commissions set
up on a territorial basis, which go to make up the corporations.
These joint commissions are set up by Ordinance. Their leaders
and their representatives are nominated by the State, while
their other members — five representatives of employers
and five representatives of workpeople — are elected by the
trade combinations. The law only requires that the trade
combinations shall have legal personality and be on the electoral list drawn up by the Ministry. As in Italy, the workerstrade combinations should be composed either of intellectual
workers or of manual workers, and should act in the defence
of the trade interests of the group for which the commission
— 134 —
is set up. As regards employers' associations, these may be
associations as defined by the law on associations, or commercial organisations employing at least 100 workers.
These joint commissions form the first rung in the organisation provided for the entire country. Above the joint commissions there are "mixed commissions" made up of three employers'
representatives and three workers' representatives elected by
the joint commissions.
The corporation has a special body, namely, the "corporation
council", made up of eight representatives of employers and of
workpeople respectively who are likewise elected by the joint
commissions.
The unity of all the corporations is to be brought about by
the "commission of delegates of councils", made up of seven
representatives of employers and of workpeople respectively,
who are nominated by the corporation councils by means of
a special system of election.
In Italy the legislation in force regards the trade combinations
as the factors and the direct organs of corporations, and for this
purpose trade combinations are subjected to a new form of
regulation. It is on this account that it has already been
possible to indicate, in connection with the creation and existence
of trade combinations, what are the conditions imposed upon
a trade combination in order for it to obtain recognition, and
how trade combinations which are recognised should be organised in order to be federated in a corporation. In Italy the
trade combinations recognised for a certain trade or branch
of industry, and the federations formed by trade combinations,
constitute the corporation. The unity of the corporations
is ensured by the National Council of Corporations which forms
part of a special Ministry of Corporations.
Thus, whilst in Spain the trade combinations are only the
electoral body of the joint commissions on which the whole
system of commissions and councils is based, including the corporation, in Italy, on the contrary, the corporations are based
on the trade associations themselves. The Italian form of
regulation directly touches the trade combinations and, as a
consequence, in a much more tangible manner than in Spain.
As the corporation is an organ of the State, the trade combinations, to such extent as they are an element in the formation
of this State organ, are themselves a part of the State.
In Spain, the duties of the commissions, and in Italy the
— 135 —
duties of the trade combinations grouped in the corporation,
extend to the whole social field, for it is the corporation which
must ensure the uniformity of all legislation, jurisprudence,
and administrative practice with regard to social questions.
Italy has gone farthest in this direction, having as its object
the transformation of the whole of State practice. Perusal
of the monograph on Italy will show to what extent this object
has already been attained as regards legislation and administration in general. At the present time the corporation is directing
its efforts principally towards the regulation of relations between
«mployers and workpeople by setting up legal rules. This
legislative activity on the part of the corporation has already
been referred to in the Chapter dealing with the collective agreement. In Spain, the law provides in a general manner that the
joint commissions shall regulate conditions of work in the
trades for which they have been set up. In Italy, as also in
Spain, the law lays down that administrative matters concerning
work such as the work of labour exchanges, the regulation of
technical training, etc., shall be dealt with by the corporations,
and that the central organ of the corporations attached to the
Ministry shall act in an advisory capacity. While in Italy
labour jurisdiction is dealt with by distinct authorities, in
Spain, on the other hand, the commissions should also take
cognisance of labour disputes and complaints.
As has already been pointed out, in Italy the trade combinations, in their capacity as constituent factors of the corporation,
are attached to the State far more closely than is the case in
Spain. Certain duties are imposed upon the trade combinations
themselves, or are entrusted to them by the State, whilst in
Spain the commissions and the councils are only factors in the
social activity organised by the State. In Italy the trade
•combinations should therefore be considered in this respect as
direct organs of the State, whilst in Spain they are, so far as the
present provisions apply, no more than indirect organs.
Conclusion
This brief description shows that the extent and the nature
of the participation of trade combinations in the functions
of the State vary greatly in the different countries. It may be
noticed, however, that everywhere the tendency to recognise
t h e principle of joint representation of the interests of employers
— 136 —
and of workpeople on State bodies and in other public institutions is growing in strength. But the representation of these
interests is not yet in the hands of the trade combinations
in all countries. When the law permits to the parties concerned
the freedom of choice, members or officers of trade combinations
may be chosen as representatives, in which case the trade
combinations may in fact be the representatives of employers
and of workers ; but it does not necessarily follow that
they will be. They are representatives from the legal point
of view only in the event of the law expressly designating them
(as it does in a number of countries) as representatives of
employers and of workpeople. For this to be done it is necessary that the trade combinations be recognised. In this case
a question arises, if certain trade combinations only, and not
all trade combinations, are recognised and called upon to collaborate with the State, is there not some occasion for considering
that the right of combination has been observed only in the
case where the trade combinations freely set up are not excluded
from this collaboration ?
But it might also be argued that in all cases where the
workpeople are not organised in a single trade union, the collaboration of trade unions with the State necessitates a choice
among several trade unions, and ends in a sort of trade union
monopoly.
It should not be overlooked, moreover, that the participation
of trade combinations in the activity of the State is calculated
to modify their character. It may have the effect of assimilating to some extent the trade combinations with State institutions, as is the case, for example, with compulsory trade
corporations, workers' chambers, etc., and even ultimately
of turning them into State organs.
When this occurs the problem of the relations between the
trade combinations and the State is no longer a problem of
the right of combination, but a problem of constitutional or
administrative law.
CONCLUSIONS
In the introduction to this volume it was pointed out that
the legislator who seeks to settle the questions arising out of
the principle of freedom of association has a choice of several
solutions. If these possible solutions be compared with the
actual law and practice as analysed in the body of the volume,
what conclusion can be drawn ? Is it possible, as was originally
hoped, to define the greatest common factor in the varying
conceptions of freedom of association ?
It has been seen that the legislator has to endeavour to
satisfy three parties : the individual, the association, and the
State. A study of the compromises so far affected discloses
tendencies fundamentally opposite and equally strong — one
placing in the forefront the interests of the individual, the other
the interests of the organised community, whether this be the
State or the association. In no country has either of these
tendencies entirely prevailed ; most frequently they exist side
by side ; but always one or the other predominates in the trade
union law. By way, therefore, of conclusion to this survey, an
effort will be made to describe these tendencies more precisely,
in the belief that by this means light will be thrown not only
on present legislation, but on possible future developments.
The idea of freedom is essentially individualist. The principle
of freedom of occupational association, on which the law and
practice of the present day are more or less explicitly based
is itself of individualist origin. Seeing, however, that this freedom
tends to encourage combination, and that combination is
intended to supersede individual action, freedom of association
inevitably inclines to assume an importance of its own, and to
become distinct from individual freedom.
In countries where the individualist tendency predominates,
the recognition of freedom of association means chiefly the
recognition of the individual's right to combine, and takes its
place alongside other rights which are recognised by law : the
right to make a contract, the right to work, and so on. Thus it
— 138 —
has been observed that in a certain number of countries the
principle of freedom of association, considered as a form of freedom in general, is recognised by the Constitution. The legislator,
however, refrains from taking any action in this matter, or at
most establishes certain prohibitions in order to safeguard
individual freedom. For example, the right to refrain from
joining an association is safeguarded in the same way as the
right to combine. The individual's freedom within the trade
association is protected by providing that the contract of
membership shall not be enforceable by law, that members
shall have the right to withdraw from membership, and that
members shall not be bound by decisions taken by the majority.
The recognition of the freedom of contract, moreover, implies
a full recognition of the right of the individual to renounce
the exercise of his freedom to combine by a clause in his contract
of service.
Further, the right to work implies the right not to work,
which, in conjunction with the right to combine, means the
recognition of the right to strike. The right to work, however,
implies that those willing to work have a right to be protected
against strikers, and that picketing is prohibited. The right to
strike, though recognised by law, is thus in practice subject
to considerable restrictions. Again, the occupational association,
springing from the principle of the individual's right to combine,
has not been given a special legal status ; the objects which it
may set before itself are limited ; even legal personality is
often denied to the association, its activities being thereby
deprived of effective support in law. It may be noted, in this
connection, that provisions laid down in collective agreements
entered into by trade associations may be over-ridden by
individual contracts of service. It is not surprising to find that,
where these conceptions prevail, trade union assistance is
never sought by the State.
If the legislator merely guarantees all citizens' rights on the
same footing, it follows that he takes no account of the social
classes, strong or weak, which have the exercise of these rights. If,
on the other hand, the State considers it to be its duty to protect
the weak against the strong, thus admitting that certain inequalities exist between social classes and that it is necessary to
attenuate or remove those differences, that State is less concerned with the proclamation of rights than with intervention,
by actual regulation, in the play of social forces. It follows
— 139 —
that where one finds the second tendency mentioned above —
the tendency to place the defence of the general interests in
the forefront — it is distinguished primarily by a system of
positive regulation by the State. Now, if the legislator desires
to protect the interests of a collective body, he must first of all
recognise this body ; and from this it results that the recognition
of occupational associations by the State is the basis of any
positive regulation of trade unionism. According to the first
theory, the State ignores the occupational association ; according
to the second theory, the State enters into relations with the
association. The recognition of occupational associations means
that they are regarded by the legislator, i.e. the State, as representing the interests of the occupations from which they are
recruited, whether the interests of workers or those of employers.
The occupational association thus acquires its own rights
and duties.
The power of representation thus recognised in occupational
associations shows itself in two main directions. In the first
place, the associations undertake the joint defence of the interests
of their occupations, workers against employers and vice versa.
In the second place, both classes of occupational associations
have to defend their interests in relation to the State. The
first of these functions finds its most striking expression in
collective agreements; the second, in the legal provisions
governing the participation of occupational associations in the
legislative and administrative activities of the State.
It has been observed many times in the course of this study
that, in all cases where trade unions undertake the promotion
of occupational organisation, the principle of the freedom of the
individual gives way to the interests of the collective body of
which the individual is a member. In such cases, the law forbids
any clause in contracts of service which stipulates that the
worker may not join a trade union ; the law also declares the
observance of a collective agreement to be binding not only on
the members of the occupational association (who, moreover,
may not detract from the agreement by private arrangements) but
also on all persons engaged in the occupation in question.
In return, the State which recognises occupational associations
reserves to itself a right of control over their foundation and
operation. Recognition is made conditional on compliance
with certain stipulations. The State, by this means, chooses
associations which it desires to recognise. This inter-action
— 140 —
between the State and the trade unions may, as has been observed
result in changes on both sides.
It has already been stated, and it may be reiterated here,
that neither of the two tendencies we have described has completely triumphed in any country. All countries endeavour to
reconcile the two theories. In fact, the conception of freedom
of. association which seeks to reconcile these two opposing
tendencies is that which prevails at the present day. Recognition
is given not only to the principle of freedom of association,
but to the association itself. The liberty of the individual is
protected against encroachment by the occupational association ;
but the right of the association to represent the occupation
as a whole is recognised, irrespective of whether those engaged
in the occupation are members of the association or not. The
State grants to the trade unions wide scope for independent
action ; it leaves to them the right to settle without interference
many of the social questions which are within their competence.
In order to avoid social conflicts and disturbances, the State
proffers its services and places at the disposal of the associations
a machinery for conciliation and arbitrationAdmittedly, in such circumstances, many problems, such for
instance as the problems arising out of trade disputes, remain
unsolved. It is, however, questionable whether any legal system
inspired exclusively by one or other of the two tendencies, and
purporting to settle all the problems involved in freedom of
association, would be a lasting system.
The occupational association lies at the foundation of modern
social life. It was the very needs of social life that brought it
into existence, and this fact cannot be ignored by the legislator.
Further, if he seeks to establish some form of regulation in the
matter, he is under the obligation to have regard to the principles
embodied in Part XIII of the Treaty of Peace, which is guaranteed
by the signatures of the States, and which calls for the recognition of freedom of association — " t h e right of association for
all lawful purposes by the employed as well as by the employers".
It is in this principle that the means may be found to reconcile
the varying conceptions which exist among the different States,
whatever may be the future development in each of the countries,
and however different may be the methods of dealing with
trade unionism to which they may be impelled by their economic
situation and their special conditions, national and political-
ADDENDA
The following notes modifying statements contained in the
body of the present volume are necessitated by developments
which have taken place while the work was in preparation or
in the press :
Page 28, footnote 1. The Act of Western Australia of 21 December
1912 was amended by an Act of 31 December 1925.
Page 30.
The Japanese Act of 10 March 1900 was repealed in 1926.
Pages 42 and 84. The English Trade Disputes and Trade Unions Act of
29 July 1927 amends in several important respects the law relating
to trade unionism. The reader is referred to the monograph : "Freedom of Association in Great Britain," in Volume II of this book.
Page 63. In Italy the National Confederation of the Liberal Professions
has become affiliated to the National Confederation of Workers. There
are now, therefore, only two general national confederations — t h a t
of the employers, and t h a t of the wage earners and persons carrying
on liberal professions. The most recent developments of trade union
organisation and the organisation of corporations, particularly in
connection with the codification of trade union and social law in
the Labour Charter, will be dealt with in the monograph "Freedom
of Association in Italy", in Volume IV of this work.
Page 86. In Austria a clause to the effect t h a t t r a d e unionists only
might be employed was declared by the Supreme Tribunal to be illegal,
on the ground t h a t it was contrary to public morals.
Pages 124-125. In Italy the legally recognised trade associations t a k e
p a r t in the work of the National Economic Council ; the members of
the Council, however, are nominated by the Government.
IMPRIMERIE
DU JOURNAL
DE
5-7, rue G é n é r a l - D u f our,
GENÈVE
5-7