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INTERNATIONAL

LABOUR

OFFICE

STUDIES AND REPORTS
Series A' (Industrial Relations) No. 29

FREEDOM OF ASSOCIATION
VOLUME II
GREAT BRITAIN, IRISH FREE STATE, FRANCE,
BELGIUM, LUXEMBURG, NETHERLANDS,
SWITZERLAND

GENEVA
1 927

PREFACE
In the Introduction t.o the first volume of this work — Freedom of
Association : Comparative Analysis — attention was called to the
manner in which the enquiry arose, the decision of the Governing
Body of the International Labour Office in pursuance of which it
was undertaken, the plans on which it was carried out, and the objects
which the International Labour Office had in view.
The second volume, now published, comprises monographs on
freedom of association in Great Britain, the Irish Free State, France,
Belgium, Luxemburg, the Netherlands, and Switzerland.
In each of these monographs an effort has been made to study
not only the national legislation relating to trade unions but also the
relevant legal decisions and administrative practice and the actual
position of trade unions.
It should be noted that these studies have, so far as the differences in the legal systems in force permitted, been based on a uniform
scheme : the first part traces the history of the trade union movement
and trade union law ; the second part is devoted to the present legal
status of associations ; the third part deals with the possible forms
of action by trade unions in the various departments of social and
economic life and the limits of such action. The conclusion deals
with the position of trade unions in law and in fact.

CONTENTS
Page
PREFACE

GREAT BRITAIN
CHAPTER I : Evolution and Present Position of Trade Unionism .
§ i. The Development of Legislative Regulation
The Beginning of Labour Regulation (1347-1562) . . . .
Labour Regulations Combined with Checks on Combination
(1562-1799)
Free Bargaining : Combination entirely Prohibited (17991824)
Collective Bargaining and Combination for Certain Purposes
Permitted though Unlawful (1825-1871)
Consolidation and Extension of Trade Union Privileges
(1871)
§ 2. Development and Present Organisation of Trade Unions .
Growth of Trade Unions
Structure
Federation
Trade Councils
The Trades Union Congress . . .

i
i
1
3
7
10
13
22
22
26
27
28
29

CHAPTER II : The Legal Status of Trade Unions

§ 1. The Legal Character of Trade Unions .
The Statutory Definition
Quasi-Corporate Status
Ownership of Property

30
30
32
34

§ 2. The Legal Regulation of the Right to Combine
Restrictions on the Individual Right to Combine . . . .
Registered and Unregistered Trade Unions

36
36
37

§ 3. Legal Liability and Procedure
Limitations on Liability and Jurisdiction
Methods by which Trade Unions can Bring and Defend
Actions

41
41

CHAPTER III : Legal
Activities

Restrictions

of Trade

Union

§ 1. Objects
Pursuit of Political Objects
§ 2. Industrial Activities and Labour Disputes
Criminal Law
Civil Law

Objects

and
48
: .

48
49
52
52
60

— Vili —
Page.
CONCLUSION

BIBLIOGRAPHY

ADDENDUM : The Trade Disputes

and Trade Unions Act, J027 .

§ 1. Text of the Act

§ 2. Presumed Effects of the Act

IRISH FREE STATE
The Present Position of Trade Unions
Employers' Organisations
Workers' Organisations

85
85
85

FRANCE
CHAPTER I : History
Union Movement

of Trade Union Legislation

and of the Trade
87

§ 1. History prior to 1884
The Period of Absolute Prohibition
Abolition of the Offence of Combination

87
88
96

§ 2. The Position since 1884
Recognition of Freedom to Combine for Trade Purposes . .
Survey of the the Development of Employers' and Workers'
Associations
Types of Present-Day Industrial Associations
Membership

99
99

CHAPTER II : Legal Status of the Industrial

Associations

. . . .

102
113
114
119

§ 1. Legal Standing and Conditions of Existence
Legal Standing
Conditions of Existence

119
119
120

.§ 2. Possibilities of Acting
Powers under Civil Law
Penal Liabilities Incurred
Collaboration with Industrial, Social and Economic Institutions

138
138
142
143

CHAPTER III : Development
Legal Provisions
§ 1. Intervention of
tions between
Collaboration in
Co-operation in
The Industrial
Partnership

of Industrial

Associations

outside the
149

Industrial Associations in Collective Relathe Parties to Contracts of Employment . 149
the Regulation of Employment by Contract
149
the Settlement of Industrial Disputes . . 155
Associations, Profit Sharing and Co- .
158

— IX —
Page

§ 2. Collaboration with the Public Authorities
Drafting of Labour Legislation
Participation in Legislation
Collaboration in the Enforcement of Labour Legislation .

CHAPTER IV : Legal Lhnits of Freedom of Association

160
160
164
168
171

§ 1. Limits set by Public Law
Limits set by Penal Law
Limits set by Administrative Law

171
171
177

§ 2. Limits set by Civil Law
Civil Liabilities arising from the Conditions of Conclusion of
the Labour Contract
Civil Liabilities in Connection with Breach of Contract . .

177

CONCLUSION

: . . . . - . .

BIBLIOGRAPHY

178
183
185
192

BELGIUM
CHAPTER I : History of the Trade Union Movement
Union Legislation

and of Trade

§ 1. Legislative History
The Period of Absolute Prohibition (1810-1867)
The Period of Partial Prohibition (1867-1921)
Recognition of Trade Unions (Act of 31 March 1898) .

195

. .

§ 2. History of the Trade Union Movement
Trade Unionism among the Workers
Trade Unionism among the Employers
CHAPTER II : Present Legal Standing
of Occupational Associations

195
198
201
207
214
215
222

and Possible Lines of Action
226

§ 1. Present Legal Standing of Occupational Associations . . .
Repeal of Section 310 (24 May 1921)
Act Guaranteeing Freedom of Association (24 May 1921)

226
226
228

§ 2. Possible Lines of Action of Trade Unions in the Economic
and Social Sphere
The Trade Unions and Collective Agreements
The Trade Unions and Conciliation and Arbitration . . .
The Trade Unions and the Control of Industry
Collaboration of the Trade Unions with the Government .

242
242
245
250
252

§ 3. Legal Limits of Freedom of Association
Limits of Penal Law
Limits of Administrative Law
Limits of Civil Law

254
254
255
256

— X —
Page.
SUMMARY AND CONCLUSION

259

BIBLIOGRAPHY

261

LUXEMBURG
CHAPTER I : The Development
Workers and Employers

of Trade

Organisation

among
265

§ 1. The Workers' Movement

265

§ 2. Employers' Organisations

268

CHAPTER II : Legal Status of Trade Organisations
CHAPTER III : Possibilities
mic and Social Sphere

269

of Trade Union Activity

in the Econo273

§ 1. Collective Bargaining

273

§ 2. Conciliation and Arbitration

273

§ 3. Works Councils

274

§ 4. Collaboration of Trade Associations with Public Authorities

277

CONCLUSION

281

BIBLIOGRAPHY

283

THE NETHERLANDS
CHAPTER I : History of Trade Union Legislation
Union Movement

and of the Trade
285

§ 1. Legislation
Right of Association
Right to Combine

285
286
287

§ 2. Existing Trade Combinations
Trade Union Statistics

291
292

CHAPTER II : The Legal Standing

of Trade Combinations

. . . .

293

§ 1. The Individual Right of Association

293

§ 2. The Position of the Trade Combinations
Constitution
Objects
Trade Unionism in Operation
Dissolution

297
297
29g
302
305

— XI —
Page

CHAPTER III : Possibilities

and Limits

of Trade Union Activity

§ 1. Non-Militant Activities
Activity in the Sphere of Civil Law
Trade Combinations as Parties to Collective Agreements .
Profit Sharing and Workers' Control
Collaboration with Public Authorities

307

307
307
308
314
315

§ 2. Labour Conflicts
Restrictions under the Criminal Law
Restrictions under the Civil Law

319
319
324

CONCLUSION

330

BIBLIOGRAPHY

331

SWITZERLAND
CHAPTER I : The History and Present Position of Trade Unions . .

333

§ 1. The Origins and Development of the Trade Union Movement
Origins
The Extension of the Trade Union Movement

333
333
339

§ 2. The Present Organisation of Trade Unions
The Tendencies and Present Position of Trade Unions . .
Employers' Organisations
Mixed Organisations

347
347
353
354

CHAPTER II : The Conditions
Unions

Governing

the Existence

of Trade
356

§ 1. Legal Status
The Federal and the Cantonal Constitutions
The Connection between the Right of Association and the
Right of Public Meeting
Freedom of Association and the Right of the Individual
Not to Combine
§ 2. The Conditions under which Trade Unions Exist . . . .
Constitution and Rules
Internal Organisation
Dissolution
CHAPTER III : The Possibilities

and Limits of Trade Union Action

§ 1. Peaceful Activities which Aim at Improving the Professional
Position of Members
Internal Activities
Co-operation with the Public Authorities
The Share of Trade Unions in the Establishment of
Working Conditions

356
356
360
361
370
370
375
378
382
382
382
387
391

— XII —
Page

§ 2. Collective Disputes
Militant Industrial Action
The Limits to Militant Industrial Action

395
395
399

CONCLUSION

409

BIBLIOGRAPHY

411

ABBREVIATIONS

413

GREAT BRITAIN1
CHAPTER I
EVOLUTION AND PRESENT POSITION OF TRADE
UNIONISM

It is proposed to deal with the evolution and present position of
trade unionism in Great Britain under two main heads : (i) the
historical development of legislative regulation of the right to
combine; (2) the development and present organisation of trade
unions themselves. The historical development of the right of
association demands a somewhat detailed treatment, as it. is essential
to any competent understanding of the law of trade unions in Great
Britain as it exists to-day. The development and present organisation
of trade unions themselves can be, dealt with rather more summarily
as being of subsidiary importance in the present context.
§ 1. — The Development of Legislative Regulation
T H E BEGINNINGS OF LABOUR REGULATION

(1347-1562)

During the earlier Middle Ages the bulk of the working population
were still in a state of villeinage and the question of the right to
combine naturally did not arise ; whilst in the towns the legal status
of the craft guilds was based on specific charters conferred by the
authorities.
1

The following study had been set up and issued in proof for submission to the Tenth Session of the International Labour Conference
(May-June 1927) before the adoption by the British Parliament of the
Trade Disputes and Trade Unions Act, 1927. The text of this Act, accompanied by an estimate of the extent to which it modifies the previously
existing law, is appended to the study, which has otherwise not been
altered to take account of the new legislation.

FREEDOM OF ASSOCIATION

I n t h e fourteenth century, however, the expansion of trade, t h e
emancipations which took place, and the shortage of labour consequent
upon t h e heavy mortality in the Black Death altered the economic
situation.
" T h e era of competitive wages had b e g u n . " 1 Parliament at
first endeavoured by the " Statutes of Labourers " (1349 2 and 1350 3 )
to stabilise wages and prices at the rates prevailing before the Black
Death. I n spite, however, of continual re-enactment during the fourteenth and fifteenth centuries, the Statutes of Labourers do not appear
to have succeeded in keeping wages or prices below the legal m a x i m u m
figures. I n 1388 4 reliance on a general statutory m a x i m u m was
partly abandoned, and the local justices were empowered to fix
reasonable rates of wages for agricultural labourers. " Parliament
failed in the attempt to go back to the old customary conditions,
and began to make persistent efforts to organise a new system of
reasonable wages and regulated prices to be enforced by central
authority. " 5
T h e efforts of the authorities in t h e late Middle Ages to regulate
prices a n d wages were naturally m e t b y combinations, both on the
p a r t of producers and middlemen to obtain higher prices, and on the
part of artificers and labourers to exact higher wages, than the law
allowed. A n u m b e r of laws were passed for the purpose of preventing
such combinations 6 . On the one h a n d m a y be cited, for example, the
law of 1551-1552 T against t h e " engrossing " of corn, wine, fish,
butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs,
geese, capons, hens, pigeons, a n d conies ; that of 1549-1550 8 against
the " engrossing " of butter and cheese ; and that of 1549 * against
conspiracies to raise the price of victuals and to obtain excessive wages
(see below). On t h e other h a n d , combinations of workmen appear to
have attracted the attention of the authorities even before the passing
of t h e first Statute of Labourers, for as early as 1303 the " servant
w o r k m e n in cordwainery " were forbidden " to hold a n y meeting
1
W. CUNNINGHAM : The Growth
merce, Vol. I, 5th ed., p. 336.
2
23 Edw. I l l , st. i.
3
25 Edw. I l l , st. ii.
4
13 R. II, c. 8, st. ii.
5

CUNNINGHAM, loc.

of English

Industry

and

Com-

cit.

Three Acts of Edward I (1292, 1300 and 1305) had already been
passed against " conspiracies " in general.
7
5 and 6 Edw. VI, c. 14.
* 3 and 4 Edw. VI, c. 21.
9
2 and 3 Edw. VI, c. 15.

GKEAT BRITAIN
or m a k e provision which m a y be t o the prejudice of the trade a n d
the detriment of the common people " \ I n 1360 the combination
of masons a n d carpenters was struck at by a Statute 2 which declared
null and void all " alliances " and " covines " of these trades — i n
this case the combination may have been a joint one of masters a n d
journeymen against the public \ A n u m b e r of other Statutes w e r e
passed against combinations in various trades (generally agriculture
and b u i l d i n g ) , for example, the Statute of 1425 4 which forbade " the
annual congregations and confederacies made by masons in their
general chapters assembled to violate the Statutes of Labourers ".
Finally, in 1549, all combinations of workmen or labourers " not to
make or do their work but at a certain price or rate " were forbidden
in an A c t 6 primarily aimed at victuallers and cooks, but extending
to all other trades.
LABOUR REGULATIONS COMBINED W I T H CHECKS ON COMBINATION.

(1562-1799)
A few years later an Act was passed which definitely stabilised
industrial relations, and which remained the basis of labour regulation
until the end of the eighteenth century. T h i s was the Artificers,
Labourers, and Apprentices Act, 1562 ", commonly called t h e Statute
of Apprentices, by wTtich the fixing of wages for each locality was
made the business of the justices of the peace, under the supervision
of the central authority, so as to " yield u n t o the hired person, both
in the time of scarcity, and in the time of plenty, a convenient
proportion of wages ". T h e Act was professedly intended to enable
wages, which in m a n y trades and places as fixed by existing Statutes,
were " too small and not answerable to this time respecting the
advancement of prices ", to be brought up to an equitable level, and
there is good evidence to show that it was so administered and
regarded. I n a n y case, there is no record of further combinations of
workers for t h e purpose of raising wages or otherwise improving
conditions of labour until the second half of the seventeenth century.
T h e period of the Civil W a r and the I n t e r r e g n u m (1642-1660)
seems to have thrown the system of labour regulation set up by the
1

Liber Custùmaruni,

541 (cit.
2
s

in Munimenta

CUNNINGHAM, p.

443).

34 Edw. I l l , c. 10.
CUNNINGHAM, op. cit.,

p. 443.

3 Henry VI, c. 1.
5
2 and 3 Edw. VI, c. 15.
' 5 Eliz., c. 4.

Gildhallae

(Rolls Series), II,

FREEDOM OF ASSOCIATION

Statute of Apprentices out of order. The justices of the peace could
no- longer be relied on to perform their statutory duties of wagefixing, and the workmen began gradually to form combinations with
a view to securing the enforcement of the Statute. In 1662 combination among silk-workers was forbidden by Parliament '. In 1667
the journeymen hatters in London combined to present a petition to
the Court of Aldermen against their employers, organised under
Royal Charter in the Feltmakers' Company. The Court decided that,
in order " that the journeymen may not by combination or otherwise
excessively at their pleasure raise their wages, " a piecework list was
to be annually settled and presented for enactment by the Court.
The workers' combination appears none the less to have remained in
existence 2.
The growth of the capitalist organisation of industry, and the
consequent cleavage between employers and employed, favoured the
renewed tendency of workmen to combine to protect their interests.
From the beginning of the eighteenth century there is abundant
evidence of the existence of such combinations and of the anxiety of
the employers that they should be suppressed. For instance, in 1718
a proclamation against unlawful clubs among the Devonshire clothworkers was issued reciting that " whereas complaint had been made
to the Government that great numbers of Woolcombers and Weavers
in several parts of the Kingdom had lately formed themselves into
lawless Clubs' and Societies which had illegally presumed to use a
Common Seal and to act as Bodies Corporate by making and unlawfully conspiring to execute certain By-laws or Orders, whereby they
pretend to determine who had a right to the Trade, what and how
many Apprentices and Journeymen each man should keep at once,
together with the prices of all their Manufactures and the manner and
materials of which they should be wrought . . . . " 3 the Act of 1549
(the Bill of Conspiracy of the Victuallers and Craftsmen — see
above) should be enforced against them.
In 1721 the Master Taylors of London addressed a petition to
Parliament in which they complained that " the Journeymen Taylors
in and about the cities of London and Westminster, to the number of
seven thousand and upwards, have lately entered into a combination
to raise their wages, and leave off working an hour sooner than they
used to do ". They went on to assert that this combination had set
1
2
8

14 Chas. II, c. 15.
S. and B. WEBB : The History of Trade Unionism (1920 ed.), p. 28.
Quoted by CUNNINGHAM, op. cit., Vol. II, p. 508.

GREAT BRITAIN

a " very ill example to journeymen in all other trades, as is sufficiently
seen in the Journeymen Curriers, Smiths, Farriers, Sail-makers,
Coach-makers, and artificers of divers other arts and mysteries, who
have actually entered into confederacies of the like nature, and the
Journeymen Carpenters, Bricklayers and Joyners have taken some
steps for that purpose . . . . The Laws now in being for regulating
of artificers, labourers, and servants, were made in the fifth of Queen
Elizabeth, and might be well adapted for those times ; but not
altogether so proper for the trade of London and Westminster, etc.,
as it is now carried on. Therefore, the masters humbly hope this
honourable house will take such measures, by passing of a law for
redress of publick grievances aforesaid, or grant such other relief, as
in their great wisdom shall seem meet." 1
The Master Taylors were successful in their petition, and obtained
an A c t 2 rendering all contracts or agreements between journeymen
tailors in certain parishes of the metropolis for the purpose of
advancing wages, or lessening hours of work, void, and making
persons entering into such agreements liable to imprisonment ; at
the same time provisionally fixing hours and maximum wages for the
trade, and empowering the justices of the peace to revise them from
time to time.
The facts with regard to this petition and its outcome have been
given in some detail because the case is typical of many which
occurred throughout the course of the eighteenth century, and because
it shows very clearly the fact that workers' combinations in
general were at that time not certainly criminal, and that special
legislation was required to render them so in any particular trade or
locality. The old Statutes (for instance, the Statute of Apprentices),
though " well adapted for those times " were " not altogether so
proper " for eighteenth century conditions ; and it was the more
difficult to convict workers charged with combination to raise wages
when they could plead that the sole purpose of their combination was
to secure the enforcement of the ancient laws providing for the
regulation of their working conditions. Opinions as to the criminality
of combinations for such purposes at common law, on the other hand,
have varied : " it is now the better opinion that such a combination
was never criminal, though the contrary opinion has in the past been
held " 3 . In the case of R. v. Journeymen Taylors of Cambridge 4 a
1
2

F. W. GALTON : The Tailoring Trade (1923 ed.), pp. 1-4.
7 Geo. I, c. 13, st. i.

SLESSER and BAKER : Trade Union Law, p. 164.

(1721) 8 M o d . , p . 10.

FREEDOM OF ASSOCIATION

conviction for conspiracy at common law to raise wages was sustained,
but extremely few such cases have been reported. It is true that m
Hawkins' Pleas of the Crown it is stated that " all confederacies
whatsoever wrongfully to prejudice a third person are highly criminal
at common law, as when divers persons confederate together by
indirect means to impoverish a third person ". The doctrine that a
combination may be a criminal conspiracy, even though its objects
may not in themselves be criminal, seems to have been asserted
towards the close of the seventeenth century ', and in the case of the
Journeymen Taylors of Cambridge the Court expressly declared that
" a conspiracy of any kind is illegal, although the matter about which
they conspired might have been lawful for them, or any of them, to
do, if they had not conspired to do it " 2. Combinations for trade
purposes were, down to the passing of the Trade Union Act, 1871,
certainly illegal at common law as being in " restraint of trade ",
but the opinion that they were thereby criminal conspiracies (except
in so far as any particular statute might exempt certain activities),
though prevalent between 1825 a n ¿ 1870, is now held to have been
erroneous. As to Hawkins' dicta, it has been held 3 that the criminal
element in both the cases on which it was founded arose in respect
of conspiracies against the State, and that they had therefore no
authority in respect of combinations which had no such anti-Governmental objects or effect.
The numerous petitions of employers for legislative action against
combinations of their employees, and the special enactments which
were accordingly passed during the eighteenth century, show clearly
enough that it was difficult to obtain a judgment in the Courts condemning combinations of workers to defend their trade interests as
being criminal conspiracies either at common law or under the ancient
Statutes. As the fixing of wages by the justices fell more and more
into disuse, unions sprang into existence among the workers for
securing a legally fixed rate of wages, either through the enforcement
of the Statute of Apprentices or by other means — sometimes with
success, as when the Spitalfields silkweavers, after serious rioting,
persuaded Parliament in 1773 to pass an Act 4 empowering the justices
1

WRIGHT:

p. n ; quoted by
2

Law of Criminal Conspiracies and Agreements (1873),
SLESSER and BAKER, loc. cit.

GALTON, op. cit., p. 24.

Per Holt, C.J., in R. v. Danieli (1704); quoted by

BAKER, loc.

cit.

* 13 Geo. UT, e. 68.

STESSER

atid

GREAT BRITAIN

to fix rates of wages and to enforce their maintenance. More often
Acts were passed at the instance of the employers, as in the case of
the London tailors mentioned above, coupling the regulation of wages
and conditions with a prohibition of combination in the particular
trade concerned. In 1800 it was declared in the House of Commons
that there were no less than forty such Statutes, forbidding
combinations in particular trades 1.
F R E E BARGAINING : COMBINATION ENTIRELY

PROHIBITED

(170Q-1824)
In 1709 the growth of combination among workmen so alarmed
Parliament (already sufficiently perturbed by contemporary events
in Franc«) that the first general A c t 2 against combinations (" An
Act to prevent unlawful combinations of workmen ", generally
referred to as the Combination Act of 1799) was rushed through both
Houses by the Government. This Act provided that " All contracts
made
between any journeymen, manufacturers
or other workmen
for obtaining an advance of wages,
lessening or alterning their or any of their usual hours or
time of working
or for preventing or hindering any person
or persons from employing whomsoever he, she, or they shall think
proper to employ in his, her, or their business, or for controlling
any person or persons carrying on any manufacture, trade,
or business, in the conduct or management thereof, shall be illegal " s .
The Combination Act of 1800 amended the Act of 1799 by adding
provisions with regard to arbitration, which do not appear to have been
put into force 4 . Under these Acts a workman entering into a
contract or combination for the prohibited objects, or inducing any
other person to do so, or to leave their work, or to maintain men on
strike, became liable to imprisonment. Combinations of employers
were also forbidden, but " there is no case on record in which an
employer was punished " for combination s .
Thus combination for trade purposes was for the first time (since
the Middle Ages, at least) generally and simply forbidden, and the
coupling of such prohibition with the regulation of wages and working

S. and

39 Geo. Ill, c. 81.

CUNNINGHAM, op. cit.,
WEBB, op. cit., p. 71.

B. WEBB, op. cit.,

Ibid., p. 73.

Vol.

p. 68.
Ill,

734.

FREEDOM OF ASSOCIATION

conditions by authority was finally abandoned. It only remained
to repeal altogether the provisions of the Statute of Apprentices as to
wage fixing, and this was done in 1813 \
Two other Acts prompted by the anti-revolutionary panic of this
period may be mentioned. The Unlawful Societies Act, ijqg ",
prohibited societies whose members were required or admitted to take
unlawful oaths, and particularly oaths contrary to the provisions of
the Unlawful Oaths Act, 1797 3 , as purporting or intended to bind
the persons taking them " to engage in any seditious purpose, or to
disturb the publick peace, or to be of any association, society or
confederacy formed for any such purpose ". The Seditious Meetings
Act, 1817 *, declares that " every society or club that shall elect,
appoint, nominate, or employ any committee, delegate, or delegates,
representative or representatives, missionary or missionaries, to meet,
confer or communicate with any other society or club, or with any
committee, delegate or delegates, representative or representatives,
missionary or missionaries of such other society or club, or to induce
or persuade any person or persons to become members thereof " shall
be deemed to be unlawful combinations and confederacies within the
meaning of the Unlawful Societies Act, 1799. The above two Acts
have never been repealed, but it has now been held, in the case of
Luby v. Warwickshire Miners' Association 6 that, though the statutes
are not obsolete, trade unions must be deemed to be impliedly exempt
from their provisions by subsequent legislation 6 . The two Acts
against unlawful oaths (that is to say, the Act of 1797 mentioned
above, which had been passed on the occasion of the naval mutiny at
the Nore, and an Act of 1819 7 , one of the " Six Acts " directed
against progressive political activities) were on several occasions
invoked against combination for trade purposes in the earlier part of
the nineteenth century, the last and most famous case being that of
the six Dorchester labourers, who in 1834 were sentenced to seven
years' transportation for administering such oaths on behalf of the
Grand National Trade Union 8 .

1 53 Geo. Ill, c. 40.
39 Geo. Ill, c. 79.
3
37 Geo III, c. 123.
* 57 Geo. Ill, c. 19.
5
(1912) 2 Ch. 371.
2

SLESSER and BAKER, op. cit., p.

* 60 G. III. and 1 G. IV, c. 6.
* 6 C. and P. 596.

232.

GREAT BRITAIN

It should be noted that the Combination Acts were not directed
against, and did not affect, associations for objects which the
legislature regarded as lawful, but only combinations for trade
purposes. The attitude of the Government towards friendly societies
was, on the contrary, favourable, and the first Act1
" for the
Encouragement and Relief of Friendly Societies " was passed in 1793.
This Act defined friendly societies as " societies for raising, by
voluntary subscriptions of the members, separate funds for their
mutual relief and maintenance in sickness, old age, and infirmity ",
authorised them to make rules and regulations, which were to be
submitted to the justices for approval, and conferred on them a
definite legal status, with power to take legal proceedings, etc., if
such approval was obtained. " There is no doubt ", says Slesser 2 ,
" that many organisations at this time, which were really trade
unions, sought to cover their trade union practices under the guise
of a friendly society ". That such " camouflage " did not always
attain its object is shown, for instance, by the case of five journeymen
printers, members of a friendly society, who were sentenced in 1798
to two years imprisonment for conspiracy, it being alleged by the
prosecution that " those of the trade who did not join their society
were summoned, and even the apprentices, and were told that unless
they conformed to the practices of these journeymen, when they
came out of their time they.should not be employed " '.
A period of vigorous repression of combinations followed the
passing of the Combination Acts. Although " free bargaining "
had replaced the old system by which wages and conditions of labour
were regulated, in practice it was only the employers who were free
to make and enforce a bargain. In the words used by Lord Jeffrey
at a dinner held in 1825 to celebrate the repeal of the Acts, " a single
master was at liberty at any time to turn off the whole of his workmen
at once — 100 or 1000 in number — if they would not accept of the
wages he chose to offer. But it was made an offence for the whole
of the workmen to leave that master at once if he refused to give
the wages they chose to require ". It is true that the Acts were
only spasmodically, and not rigidly or continuously, enforced. The
police were inefficient and the employers were often content to
connive at illegal combinations. Nevertheless, a very great number

» 33 Geo. Ill, c. 54.
Henry H. SLKSSER : The Law Relating to Trade Unions, 1921, p. 16.

* WEBB, op. cit., p. 78.

FREEDOM OF ASSOCIATION

of prosecutions and convictions, followed by heavy sentences, did
take place. A severe economic depression followed the Napoleonic
wars, wages declined, and the condition of masses of the workers
was extremely miserable.
A movement consequently arose among liberally-minded
politicians for the repeal of the Acts. This movement was most
skilfully fostered and directed outside Parliament by Francis Place,
a master tailor, and inside it by Joseph Hume. In 1824 a Committee
of enquiry was obtained, to studv three subjects : the emigration
of artisans, the exportation of machinery, and combinations of
workmen, all of which were forbidden by law. The Government
regarded the enquiry as primarily directed towards the possibility
of encouraging the manufacture of machinery. Under cover of
this (to them) subsidiary object, Hume and Place managed to
secure the adoption by the Committee of a series of resolutions in
favour of complete liberty of emigration and combination, and an
Act 1 to repeal all the Combination Laws and to legalise trade
societies was passed by Parliament immediately.
COLLECTIVE BARGAINING AND COMBINATION FOR CERTAIN PURPOSES
PERMITTED THOUGH UNLAWFUL

(1825-1871)

The movement for the repeal of the Acts had been essentially
a middle-class one, but the workers were not slow to take advantage
of their unexpected liberty. Unions sprang into existence, strikes
and disturbances took place, and almost the whole working class
seemed " combined in the general resolution to impose terms on
their employers " 2 .
The employers and Parliament reacted equally swiftly, and a
committee of enquiry was quickly appointed. Place and Hume were
successful in persuading the Committee that the re-enactment of the
Combination Laws was undesirable, but a Bill s was drafted and
passed which removed the exemption of combined workmen from
prosecution for criminal conspiracy under common law conferred
by the Act of 1824, though it specifically excepted from prosecution
associations for the purpose of regulating wages or hours of labour.
Moreover, the Act of 1825 provided that violence, threats or
intimidation, molestation or obstruction for the purpose of forcing a
1 (1824) 5 Geo. IV, c. 95.
Sheffield Mercury, 8 October 1825 ; quoted by WEBB, op. cit., p. 105.
» Í1825) 6 Geo. IV, c. 129.
1

GREAT BRITAIN

person to leave his work, forcing or inducing a person to belong to
a trade union or observe a trade union rule, or forcing an employer
to alter his manner of conducting business, or to limit the number
of his employees should be punishable by imprisonment.
From 1825 until the passing of the Trade Union Act, 1871, the
opposition to combinations of workers generally took the form of
prosecutions under the 1825 Act for " intimidation ", " molestation ",
" obstruction ", etc., rather than for combination in restraint of
trade under common law.
The passing of the Molestation of Workmen Act,
185c1,
providing that no person by reason merely of his entering into an
agreement for the purpose of fixing wages, or by reason merely of
endeavouring " peaceably and in a reasonable manner and without
threat or intimidation, direct or indirect, to persuade others to cease
work in order to obtain an alteration in wages or hours " should
be held guilty of molestation or obstruction within the meaning of
the 1825 Act, did little to protect the workers. In 1861, for instance,
it was held in the case of Walsby v. Riley 2 that a letter sent to an
employer of a resolution of men threatening to strike unless a certain
man was discharged constituted a criminal threat and molestation.
Under the terms of the 1825 Act combination had only become
legal at common law if its purpose was the regulation of wages and
hours of labour. Associations whether of workers or employers
whose activities could be held to involve " restraint of trade "
beyond the limits of these two authorised objects came into collision
with " the erroneous opinion . . . that conspiracies in restraint of
trade were offences at common law " 3 , and in a number of cases
members of such organisations were convicted of criminal conpiracy 4 .
In the case of Hilton v. Eckersley 5 Mr. Justice Crompton, one of
the two judges who decided on appeal that an agreement by
employers not to raise wages was illegal and unenforceable, held such
an agreement to amount to a criminal conspiracy. Since then, in
the case of R. v. Stainer', it has been held (by Mr. Justice
Keating) that an association merely in restraint of trade is not
1
2
3

22 Vict., c. 34.
3 E. and E. 516.
SLESSER and BAKER, op. cit., p. 165.

E.g. R. v. Dixon (1834), 6 C. and P. 601 ; R. v. Harris (1842, 1 C.
and K. 179 ; R. v. Selsby (1847), 5 Cox 49s.
'6 (1855) 6 E. and B. 47(1870) L.R., 1 C.C.R. 230.

FREEDOM OF ASSOCIATION

made thereby a criminal combination, and this opinion now
prevails.
A further effective check on " combination " during this
period was to be found in the Master and Servant Acts.
This
general name was applied to a group of Acts * passed during the
eighteenth and early nineteenth centuries, based on principles
already inserted and applied in the Statute of Labourers and the
Statute of Apprentices (see above), under which if a workman
wilfully broke his contract of service, either by absenting himself
from his employment or by leaving his work before it was finished,
he could be summarily arrested and sentenced to imprisonment for
three months without the option of a fine or the payment of
damages. In 1863 a Parliamentary Return was issued showing
that no fewer than 10,33g cases of breach of contract of service
had come before the Courts in a single year 2 . In response to
vigorous agitation a Select Committee was appointed in 1866 to
enquire into the subject, and as a result of its recommendations
the harshest provisions of the Master and Servant Acts were repealed
in 18673.
Apart from the criminal aspect of acts done in combination for
trade purposes, the whole legal status of trade unions after the passing of the -1825 Act was anomalous. At common law all combinations in restraint of trade, including trade unions in so far as their
main objects so operated, were certainly unlawful, whatever opinion
might be held as to their criminality. That is to say, they were
essentially outside the law ; their agreements and trusts were void,
and they could not invoke the aid of the law for any purpose
whatsoever. They could in theory have been sued in tort (i.e. in
respect of civil wrongs other than breach of contract) though the
refusal of the Courts in the case of voluntary associations to allow
judgment to be recovered against any person or persons not named
as defendants in the action, and the impracticability of consequently naming each individual member of a union (or club, or
other incorporated body of persons) as defendant, made them in
practice unamenable in such actions ; whilst they could not
themselves sue in tort, nor could they sue or be sued with respect
to contract, on account of their illegality at common law.
1
3

Particularly 4 Geo. IV, c. 34.
WEBB, op. cit., p.

252.

30 and 31 Vict., c. 141.

GREAT BRITAIN

To remedy this condition of helplessness (in particular as
against defaulting members and officials) a clause was inserted in
the Friendly Societies Act 1855 1, providing that a society established
for any purpose not illegal might, by depositing its rules with the
Registrar of Friendly Societies, have disputes among its own members
summarily dealt with by the justices. Under this provision a number
of trade unions had deposited their rules, and it was generally believed
and accepted that by so doing they had acquired the power to proceed
against any member or official who should detain or make away
with his society's funds. In 1867, however, when the Boilermakers'
Society proceeded against the secretary of their Bradford branch-for
wrongfully withholding the sum of £24, the Court refused all aid,
inasmuch as one of the principal objects of the society was to support
members when on strike ; declaring that this object, if not actually
criminal, was at any rate so far in restraint of trade as to render the
society an illegal association 2 .
In 1868 an A c t 3 was passed authorising prosecution by joint
owners of property against one another for larceny, and in the case
of R. v. Blackburn 4 it was decided that the Act could be used by
members of trade unions — though it gave them no power to recover
their funds in a civil action ; but in the case of Farrer v. Close s the
Court again decided that the union's action could not be entertained.
CONSOLIDATION AND EXTENSION OF T R A D E UNION PRIVILEGES

(1871)

Meanwhile trade union activities in various parts of the country
had led to frequent strikes and sporadic violence. An outrage in
Sheffield (instigated by the Saw-Grinders' Union) was the immediate occasion for the appointment of a Royal Commission to
investigate all such outrages during the last ten years, and trade
unionism generally. The officers of the larger and more responsible
trade unions, and their advisers, were able to convince the Commission that the tendencies of the more modern and more representative
unions were away from, violence, and so successful was their advocacy
that while the majority report " contained no recommendation which
1

18 and 19 Vict., c. 63.
Hornby v. Close (1867), 2 Q.B. 153.
3
31 and 32 Vict., c. 116.
«8 (1868) n Cox, C.C. 157.
(1869) 4 Q.B. 602.
2

FREEDOM OF ASSOCIATION

would have made the position of any single union worse than it' was
before " 1 and recommended a limited legalisation of trade unions,
t h e minority report, signed by three members specially favourable to
the workers, recommended t h a t trade unions should be given a legal
status, but not such as would allow interference by the Courts in
domestic or inter-union affairs, and that they should no longer be
deemed to be illegal by reason of their acting in restraint of trade. I t is
noteworthy t h a t trade unionists were generally opposed to full
legalisation of combinations on account of the dangers to which it
m i g h t expose them. Their point of view is expressed by Mr. and
Mrs. W e b b as follows :
The whole eSicacy, from a trade union point of view, of the amalgamation of trade and friendly benefits would have been destroyed. The
bare legalisation would have brought the trade unions under the general
law, and subjected them to constant and harassing interference by Courts
of Justice. They had grown up in despite of the law and the lawyers ;
which as regards the spirit of the one and the prejudices of the other were
" . . . . alien and hostile to the purposes and collective action of the
Trades Societies 2. A union would have become exposed " to be sued
by one of its members who might be excluded for ' blacklegging ' or
otherwise working contrary to the interests of the trade " -. Thus any
member of any of the unions would have had " power to take legal proceedings, to worry them by litigation and cripple them by legal expenses,
or to bring a society within the scope of the insolvency and bankruptcy
law " 2 . So strongly was this danger felt that among the older and more
violent school of trade unionists there was a certain amount of opposition
to the policy adopted by the workers' representatives before the Royal
Commission. " The less working men have to do with the law in any
shape the better ", was the constant note of the old unionists '.
T h e political power which the extension of the suffrage under
the " Reform Bill " of 1867 had p u t into the hands of the workers
m a y , perhaps, partly explain the attention which was paid by the
Liberal Government of the day to the recommendations of the
minority report. I n i86g they persuaded Parliament to pass a
provisional Act 4 giving protection to trade union funds, and in
1871 was passed the first Trade Union Act5, which still remains the
principal Act on which the status of trade unions is based.
Its
provisions will b e described and discussed in detail in subsequent
sections of the present study ; for historical purposes it is sufficient
to note that it defined trade unions ; removed all illegality attached

W E B B , op. cit.,

Ibid., p. 271.
Ibid., p. 273.
32 and 33 Vict., c. 61
34 and 35 Vict., c. 31.

3
4
5

269.

GKEAT BRITAIN

to them at common law consequent on their purposes being in
restraint of trade ; empowered members of a trade union to obtain
certain of the advantages of corporation (to be discussed later) by
" registering " it, so long as none of the purposes of the unions was
illegal ; and expressly safeguarded domestic and inter-union affairs
from the jurisdiction of the Courts, in so far as the direct enforcement
of agreements was concerned.
The civil status of trade unions was thus finally determined
to the satisfaction of their accredited spokesmen and representatives ; but the Government at the same time carried through
Parliament the Criminal Law Amendment Act 1, which repealed
the Act of 1825, and also the Molestation of Workmen Act, 1859,
but inflicted imprisonment with hard labour up to three months
on everyone who, with a view to coercing another for trade
purposes, should :
(1) Use personal violence ;
(2) Threaten so as to justify a magistrate in binding the
threatener over to keep the peace ;
(3) Molest or obstruct in any of the following ways :
(a) By persistently following any person about from place
to place ;
(b) By hiding his tools, clothes, or other property ;
(c) By watching or besetting his house, or following him
along any street or road with two or more other persons
in a disorderly manner.
Save as above stated, however, no one was to be liable to any
punishment for doing or conspiring to do any act, on the ground
that such act restrains or tends to restrain the free course of trade.
Thus, in effect, the prohibition of molestation, obstruction, and
intimidation in trade disputes was not only reasserted ; it was made
more clear and explicit, and such protection as had been afforded by
the Act of 1859 was largely removed.
The Criminal Law Amendment Act naturally caused great
dissatisfaction among trade unionists, who felt that what had been
granted with one hand (under the Trade Union Act, 1871) had now
been taken away with the other ; for they gained little from the
legislation on combination for trade purposes in itself, if many of
the acts which it involved were made criminal. In 1872 the decision
in the case of R. v. Bunn2 (generally known as the gas workers'
1

34 and 35 Vict., c. 32.

12 C o x , C.C. 316.

FREEDOM OF ASSOCIATION

case) illustrated with great clearness the obstacles which the Criminal
Law Amendment Act had allowed to remain in the way of effective
combination. The leaders of a number of gas-workers, who had struck
work in breach of contract to procure the reinstatement of a dismissed
fellow-worker, without using any specific threat or violence, were
found guilty of a conspiracy to coerce and molest their employers
in carrying on their business ; which, in spite of the definition of
molestation contained in the Criminal Law Amendment Act, the
judge (Lord Esher) held to be indictable at common law, and sentence
of 12 months' imprisonment with hard labour was passed. " This
case substantially decided, as far as its authority went, that although
a strike could no longer be punished as a conspiracy in restraint of
trade, it might, under circumstances, be of such a nature as to amount
to a conspiracy at common law to molest, injure, or impoverish an
individual, or to prevent him from carrying on his business '."
In consequence of this decision, and of .the agitation which
followed it, a Royal Commission was appointed in 1874 by the
Conservative Government which had succeeded Mr. Gladstone's, and
in 1875 two Acts were passed " which completely satisfied the trade
union demands " 2 . The Conspiracy and Protection of Property
Act3 repealed the Criminal Law Amendment Act of 1871, expressly
authorised peaceful picketing, and provided that an agreement or
combination to do any act in connection with a trade dispute should
not be indictable as a conspiracy unless the same act committed by
an individual would be punishable as a crime ; though it inflicted
penalties (fine or imprisonment) on certain forms of violence and
intimidation. This Act, together with the Trade Disputes Act, igob,
still constitutes the principal statutory law affecting trade unions in
their criminal and tortious aspects. At the same"time the Master and
Servant Act of 1867 was repealed and replaced by the Employers
and Workmen Act 4 , under which employer and employee became twc
equal parties to a civil contract.
Since 1875 the most important enactments affecting trade unions
have been the Trade Union Act Amendment Act, 1876 s , which
amended the provisions of the Trade Union Act, 1871, in respect of
1

Sir J.

STEPHEN

: History of the Criminal Law, Vol. Ill, p. 226 ;

cit. ap. SLESSER and B.AKER, pp. 168-169.
2

WEBB, op. cit.,

290.

38 and 39 Vict., c. 86.
* 38 and 39 Vict., c. 90.
* 39 and 40 Vict., c. 22.

GREAT BRITAIN

certain administrative details and re-defined trade unions ; the Trade
Disputes Act, iço6 \ which extends the limited immunities granted
by the Conspiracy and Protection of Property Act, 1875 ; the Trade
Union Act, 1Q13 2 , which legalises the political activities of trade
unions ; and the Trade Union (Amalgamation) Act, iqi'j 3, which
made amalgamation easier than it had been under the Act of 1876.
Apart from these and other Acts, it may be mentioned that under the
terms of the National Insurance Act, igii, the Government of the
day recognised the trade unions as part of the normal industrial
organisation of the country by utilising their machinery for the purposes of the Act, and this precedent has repeatedly been followed in
other departments of labour legislation, as well as in public administration generally.
The Trade Disputes Act, 1906, and the Trade Union Act, 1913,
were both passed for the purpose of reversing judicial decisions, and
the events which led to their enactment deserve a brief description.
The Taff Vale Case and the Trade Disputes Act, igo6
Since 1891, when a specially constituted Court of five judges
of the Queen's Bench Division definitely ruled that " to tell a fellow
workman that unless he joined a particular union the other workmen
would leave work, or to tell an employer that unless he employed all
union men, his men would cease to work for him, no threats of
violence to person or property and no threatening language being
used in either case, was not " intimidation " within the meaning of
the Conspiracy and Protection of Property Act, 1875 " *, there have
been few attempts to interfere with the exercise of the right to combine
through the criminal law. Towards the close of the nineteenth
century, however, a disposition in the Courts to hold the officers of
trade unions liable to damages in cases where it could be proved that
their influence had been exerted to the detriment of employers' interest
or to that of any other workmen became evident. In the case of
Temperton v. Russell * for instance, it was held to be actionable
maliciously to conspire to injure a man by preventing certain workmen from renewing their contracts ".
1

6 Ed. VII, e. 47.
* 2 and 3 Geo. V, c. 30.
3
798 Geo V, c. 24.
4
Gibson v. Lawson (1891), 2 Q.B. 545.
5
(1893) 1 Q-B. 715.
• Cf. also Quinn v. Leathern (1901), A.C. 495.
Freedom of Association

FREEDOM OF ASSOCIATION

It was generally understood, however, that whatever action might
be taken against its officers, a trade union itself was immune from legal
proceedings against its corporate funds, on account of the peculiar
unincorporated and extra-legal status which the Act of 1871 had
conferred on them. It does not appear that this general opinion was
well founded, although no case had yet arisen in which a trade union
had been sued in tort. The practical immunity of trade unions from
such actions had arisen out of the fact that before the passing of the
Judicature Act in 1873, an action to recover damages in respect of a
tort could be instituted only in the Courts of Common Law, and those
Courts " adopted a rigid rule that judgment could not be recovered
against any person or persons not named as defendants in the action.
From this it followed that no property could be taken in execution
which was not the property of the named defendants. íf, therefore,
an association consisted of so large a number of persons that it was
impracticable to ascertain the names of all of them or to make them
all defendants, the property of the association, as distinguished from
that of the individual members, could not be taken in execution in a
common law action " 1. This difficulty applied not merely in the case
of trade unions, but in that of clubs and all other unincorporated
associations with a number of members, and whether the action was
in tort or upon contract. The Court of Chancery, in dealing with
cases of contract, allowed " representative " actions, i.e. actions by
or against individuals as representing the association. In the Common
Law Courts, where torts had to be dealt with, however, the difficulty
could only be remedied by full incorporation, which was impossible
and undesirable for trade unions.
In 1883, after the Courts of Common Law and the Courts of
Equity 3 had all become divisions of the Supreme Court, the Supreme
Court Order No. XVI, Rule 9, prescribed that the old rule, hitherto
confined to the Court of Chancery, that where there are numerous
parties having the same interest in one cause or matter, one or more
of such persons may sue or be sued, or may be authorised by a Court
or judge to defend in such cause or matter, on behalf or for the benefit
of all the persons so interested, should apply in all the Courts. In
1893, in the above-mentioned case of Temperton v. Russell, officials
1
Report of the Royal Commission on Trade Disputes and Trade
Combinations,
1906, p. 4.
2
English legal and judicial practices are concisely and clearly
described in an article by Prof. H. C. GüTTERIDGE, in the International
Labour Review for August 1924.

GREAT BRITAIN

of three trade unions were made defendants as representing all the
members, and, on their objecting, it was held by the Court of Appeal
that Rule g of Order XVI did not apply to trade unions, inasmuch
as the words of the Order " numerous parties having the same interest
in one cause or matter " could only be satisfied by parties who had,
or claimed to have, a beneficial proprietary right which they were
asserting or defending. For some years subsequently this decision
was generally considered as implying both that trade unions could
not be sued through the persons of their officers or representatives,
and that they could not be sued as quasi-corporate bodies.
In 1901, however, the House of Lords, in deciding the case of
Duke of Bedford v. Ellis 1, overruled Temperton v. Russell and
decided that the Rule applied in all cases of common interest.
In the same year (1901) was decided the well-known case of the
Taff Vale Railway Co. v. Amalgamated Society of Railway Servants.
A strike had broken out among the employees of the company, in the
course of which unlawful acts had been committed. The company
thereupon sued the society, which was a trade union registered under
the Act of 1871, in tort for having conspired to induce workmen to
break their contracts, and for having conspired to interfere with the
traffic of the company by picketing and other unlawful means.
Mr. Justice Farwell granted an interim injunction against all the
defendants ; the union appealed on the legal question whether a
trade union was liable to be sued in tort, and the Court of Appeal,
reversing the judge's decision, had them struck out of the action ;
but upon final appeal the judge's decision was restored, the House
of Lords holding that the Act of 1871, by conferring on registered
trade unions the privileges of a corporation, had impliedly imposed
corporate liabilities on them as well. Moreover, apart from the Act,
Lords Macnaghten and Lindley expressed the opinion that under
Order XVI, Rule g, of the Supreme Court, any trade union, whether
registered or not, could be sued in tort through its representatives,
and that if the trustees were added as parties- an Order could be
obtained for payment by them out of the funds of the trade union of
all damages and costs. The society was therefore compelled to pay
^23,000 in damages, and incurred a total expense of ¿40,000.
The Taff Vale decision caused consternation among trade
unionists, and in 1903 a Commission was appointed by the (then
1

(1901) A . C. 1.

2ü

FREEDOM OF ASSOCIATION

i—

—

Conservative) Government to enquire into the state of the law
affecting trade disputes and trade combinations. The report of the
Commission, published in 1906, recommended that, subject to certain
safeguards, trade unions should accept full legal responsibility for
their official actions.
Meanwhile a General Election had taken place, and not only had
the Liberal Party been returned to power with a very large majority,
but the Labour Representation Committee (to-day better known as
the Labour Party) had astonished political observers by securing
twenty-nine seats. A number of the successful candidates of the other
parties had also been forced by trade union pressure to pledge themselves to restore the complete legal immunity which it had been
supposed, before the Taff Vale decision, had been conferred on trade
unions by the Act of 1871. In the opinion of Mr. and Mrs. Webb l
there were now two alternative courses which might have been
pursued. " One was that . . . the trade unions should forgo their
position of being outside the law, and should claim, instead, full
rights, not only of citizenship, but actually of being duly authorised
•constituent parts of the social structure, lawfully fulfilling a recognised function in industrial organisation. " This course would,
however, have involved too sudden and complete a transformation
and one too much in advance of public opinion, and the other alternative was ultimately chosen by the Government, under pressure
from the unions — namely, by the Trade Disputes Act, 1906 2, to
make trade unions expressly immune, both as corporations and in the
persons of their officials, in respect of any wrongful act committed
by or on behalf of the union. Nor was this all that was secured, for
the Act also provided that an act done by a person in contemplation
or furtherance of a trade dispute should no longer be actionable on
the ground only that it induced some other person to break a contract
of employment or that it was an interference with the trade, business,
or employment of some other person or the right of some other person
to dispose of his labour or his capital as he willed * ; moreover, an
act done in pursuance of an agreement or combination, in contemplation or furtherance of a trade dispute was not to be actionable

Op. cit., pp. 604-5.
6 Ed. VII, e. 47.
Apart from this immunity, such acts would be actionable if done
" without just cause or excuse" : cf. Lumley v. Gye (1853), 2 E. and
B. 217 ; Quinn v. Leathern (1901), A.C. 495.
3
3

GREAT BRITAIN

unless the act, if done without any agreement or combination, would
be actionable; and authorised picketing was extended to cover
peaceful persuasion as well as the communication of information.
The Osborne Judgment and the Trade Union Act, 1Q13
The reversing of the Taff Vale decision by the Trade Disputes
Act had been obtained largely as a result of great political activity
on the part of the trade unions, through the Labour Representation
Committee.
In 1907 an action 1 was brought by Steele, a member of the South
Wales Miners' Federation, against the federation for an injunction
to restrain it from levying funds to pay the expenses of returning
representatives to Parliament and maintaining them there. The
injunction was refused, on the grounds that the definition of a trade
union contained in the 1876 Act was not exhaustive, and therefore
did not preclude by omission Parliamentary representation from being
one of the purposes of a trade union ; and also that the Court
declined to interfere in what was merely a matter of internal
administration of the federation.
In 1908 W. V. Osborne, a member of the Amalgamated Society
of Railway Servants (defendants in the Taff Vale case) brought an
action against the society to restrain it from spending any of its funds
on political objects. The injunction was granted by the Court of
Appeal, and the House of Lords 2 confirmed this decision, thus
definitely overruling Steele v. South Wales Miners' Federation. The
majority of the Law Lords held, in principle, that a trade union as
such had been given corporate status by the Act of 1871 ; that their
authorised objects had been exhaustively defined in that Act and
in the Act of 1876 ; that objects outside such statutory definition
were ultra vires ; and, that political objects were thus unauthorised
and ultra vires, just as they would be in the case of a trading company.
This decision now clearly holds good in the case of all registered trade
unions (except in so far as it has not been reversed by the Act of
1913); but its application in the case of unregistered unions is less
certain s .

1 (1907) 1 K . B . D . 361.
(1910) A . C . 87.

See below, p. 33.

FREEDOM OF ASSOCIATION

In 1913 the trade unions were able to secure the passing, by the
Liberal Government of the day, of the Trade Union Act, 1913, which
expressly allowed trade unions whose principal objects are those
defined in the Act of 1876 to pursue other objects in addition ; added
to the already existing categories of " registered " and " unregistered " unions, a third category of " certificated " unions, holding a
certificate from the Registrar of Friendly Societies, of evidential value
only ; and provided that trade union funds may only be applied for
political objects after the furtherance of those objects have been
approved by the majority of voters on a ballot vote of members, and
that members who object to contributing to such objects shall be
entitled to exemption on giving notice of their objection, without
incurring any victimisation therefor. The authorised political objects
were at the same time defined.
The Taff Vale case and the Osborne judgment with their
respective legislative consequences bring the history of the right
of association in Great Britain up to the present stage of development, but before proceeding to describe the legal status of trade
unions as it now stands, it is necessary to give some brief account
of the development and present organisation of trade unions
themselves.

§ 2. — Development and Present Organisation of Trade Unions

GROWTH OF T R A D E UNIONS

The year 1824, which saw the repeal of the restrictive legislation making the existence of trade unions a practical impossibility, may be taken as the starting point in the growth of the
trade union movement in its present day form. Three stages may
be distinguished. The first stage was characterised by the efforts
to set up a great national union or federation of unions covering
the whole country, of which the Grand National Consolidated
Trade Union, inspired by Robert Owen, is the best-known instance.
These attempts all came to nothing after a brief period of existence
1
In English law the term trade unions is applied to employers'
associations as well as to trade unions of workers. In the ensuing section
the term trade unions is used in its customary sense to mean workers'
organisations only.

GREAT BRITAIN

and towards the middle of the nineteenth century the second stage
of trade union development began. The unions set up during this
second period were mostly craft unions paying high benefits and
exacting high membership dues. During the 30 or 40 years following the establishment of these craft organisations steady but
not particularly striking progress was made. Towards the end of
the nineteenth century the " new " unionism came into being. The
characteristic features of this stage of development were the
organisation of unskilled workers, the spreading of Socialist propaganda and a greater degree of militancy. These new unions
offered practically no benefits except strike pay and exacted relatively small contributions from their members.

The following table ', showing the total number of unions
known to have been in existence in Great Britain and Northern
Ireland in each year from 1892 to 1925 and their membership to the
nearest thousand, illustrates the rapid growth of trade unions during
this third and latest stage :

This table and the other tables given in this section are taken from
the Ministry of Labour Gazette of November 1926.

FREEDOM OF ASSOCIATION

Year

1892
1893
1894
1895
1896
1897
1898
1899
1900
1901
1902

1903
1904
1905
1906
1907
1908
1909
I9IO
1911
I912

i9J3
1914
1915
1916
1917
1918
1919
1920
1921
1922
1923
1924
1925

Number
of trade
unions at end
of year

ï.233

1.279
1.314
i,340

(
(
)

1,358
1,353
1,326
1,325
1,323
1,322

1,297
1,285
1,256
1,244
1,282
1,283
1,268
1,260

1,269
1,290
1,252

1,269
1,260
1,229
1,225
1,241

1,264
1,360
1,362
1,250
1,204

1,163
i>*S9
1,144

Membership

at end of

year

Males

Females

Total

Thousands

I
)
]
f

Not available

1,466
1,534
1,608
1,761
1,868
1,873
i>857
1,838
1,802
1,817
!,999
2,263
2,230
2,214

2,287
2,804
3,026
3,702
3,7o8
3,868
4,018
4,621
5,324
6,600
6,995
5,6i7
4,745
4,597
4,721
4,690

142

147
144
150
J

152

156
156
165
180
211
250

255
263
278
335
390
433
437
491
626
878
1,209
1,326
i,342
1,005

871
816
813
832

!>576
!,559
!,53o
!,504
1,608
i,73i
1,752
1,911
2,022
2,025
2,013

1,994
1,967
1,997
2,210

2,5 r 3
2,485
2,477
2,565
3,!39
3,4i6
4,i35
4,i45
4,359
4,644
5,499
6,533
7,926
8,337
6,622
5,616
5,413
5,534
5,522

Percentage
increase (+)
or
decrease ( - )
on
total membership of previous year
Ì

Per cent.

—
-

I.I

+
+
+
+
+

1-9
1-7
7-0
7.6
1.2
9-1
5-8

0.1

0.6

1.0

1-3

+ 1.6
+ 10.7
+ 13-7
— 1.1
0.3

+ 3-5
+ 22.4
+ 8.8
+ 2I-0

+ 0.3
+ 5-2
+ 6.5
+18.4
+ 18.8
+ 21.3
+ 5-2
— 20.6
-152
- 3-6
+ 2.2
— 0.2

As will be seen, the total membership at the end of 1925 was
approximately 5,522,000. This total includes about 32,000 members
in Irish Free State Branches and 27,000 members in other overseas
branches of certain unions. It also includes a number of persons
(principally teachers) who are members of more than one society
and are therefore counted more than once in the figures. When
allowance is made for these cases the net number of members of

GREAT BRITAIN

trade unions in Great Britain and Northern Ireland is estimated
to have been nearly 5,450,000 at the end of 1025.
The following table shows the number of unions in Great Britain
and Northern Ireland at the end of 1925, together with their membership, in each of the great industrial groups.

Group of unions

Number
of trade
unions
at end

Males

Females

of 1935

Agriculture,
etc.

Total
1

horticulture,

Mining and quarrying
Pottery and glass
M e t a l s , m a c h i n e s , conveya n c e s , etc.; iron, steel,
tinplate,
etc.,
manufacture
Engineering,
ironfounding,
shipbuilding, other metal
w o r k i n g a n d vehicle-building
Textile :
Cotton
Wool, worsted, and shoddy
F l a x and j u t e
Hosiery
B l e a c h i n g , d y e i n g , finishi n g , etc.
Other textile
Clothing :
Boot a n d s h o e
T a i l o r i n g a n d o t h e r clothing

46,149

1,"3

47,262

120

933.747

4,135

937.8S2

16,626

12,326

28,952

86,611

1,042

87,653

588,002

6,760

594,762

172
28
23
6

139.909
50,622
10,454
3.577

230,095
41,095
25,215
16,689

370,004
9i,7i7
35,669
20,266

34
25

61,624
11,472

19.154
16,177

80,778
27,649

63,186

27,942

91,128

30,796

45,754

76,550

23.843

5.205

29,048

F o o d , d r i n k a n d tobacco
W o o d w o r k i n g and furnishing
Furnishing
Other

29.533
32,131

3,858

1,044

33.39 1
33.Ï75

P a p e r , p r i n t i n g , etc.

152,741

54,349

207,090

(Continued

on next Page.}-

FREEDOM OF ASSOCIATION

Number
of trade
unions
at end

Group of unions

Males

Females

Total

of 1925

Building, public works contracting, etc.;
Bricklayers aud masons
Carpenters and joiners
Painters and decorators
Builders' labourers
Other
Other manufacturing
dustries

in-

65.917

65,917

114,521

7
7
22

50,823
59.Ï5 1
43.452

—
—
—
—
—

19,459

5,799

25,258

114,521

50,828
59^5*
43,452

Transport :
Railway service
Water transport
Other (road
transport,
dock labour, etc.)

523,100

5,664

«8,257

219

528,764
88,476

417,962

12,757

430,719

Commerce, distribution and
finance :
Commerce and distribution
Banking and insurance

15
24

101,825

73,534

40,938
5,355

142,763
78,889

264

27i,i34
67,585
27,374
44,315
440,595

62,326
128,680
5,470
4,664
47,8i5

333,46o
195,265
32,844
48,979
488,410

National and local government
Teaching
Entertainments and sport
Miscellaneous
General labour
Total

8
44
4
1,144

4,690,032

831,640 5,521,672

STRUCTURE

The British trade union movement presents an extraordinary
complexity and absence of uniformity in its structure and methods of
organisation. It is in fact purely a growth of circumstances and has
followed no pre-conceived plan. Four main types of structure may be
distinguished : (1) craft unions ; (2) industrial unions ; (3) occupational unions ; (4) general unions.
The craft unions are of the type which organise workers in a

GREAT BRITAIN

given trade in accordance with their craft identity, irrespective of
the industry in which these workers are engaged. There is still in
Great Britain a considerable number of unions catering for a single
craft only, and while some of these unions are entirely local in their
character, instances are not wanting where .they exercise a power which
is not exceeded by the best organised and strongest of the larger
organisations. The larger craft unions, however, are for the most
part the outcome of the amalgamation of a number of single craft
unions. The Amalgamated Engineering Union, with over a quarter
of a million members formed in 1920, being an amalgamation of 10
craft unions engaged in engineering, and the Building Trade
Workers, formed in 1921 with a membership of over 50,000, being
likewise an amalgamation of a number of craft unions, are among the
best known organisations of this type.
Industrial unions are a form of organisation catering for all the
workers in a given industry regardless of craft, trade, or calling. The
National Union of Railwaymen with 400,000 members and the Iron
and Steel Trades Federation with 85,000 members are among the
best-known ' unions in Great Britain approximating to this type of
structure.
Occupational unions seek to organise all workers in the services
of a given employer or group of employers. Usually these unions are
local in scope and small in numerical strength, but there are notable
exceptions, such for instance as the Union of Post Office Workers,
with a membership of over 90,000.
General labour unions are a product of the " new " unionism,
catering usually for unskilled or semi-skilled workers. One of the
best known examples of this type of union is the National Union of
General and Municipal Workers, with a membership of over 300,000,
which caters for all general workers and such others as the General
Council of the Union may decide.
FEDERATION

The necessity for joint action among various unions has led them
to form federations, the essential features of which are regular
meetings of the associated unions, for the purpose of discussing
common problems, and the payment of an affiliation fee to cover the
expenses entailed. The powers of different federations vary greatly,
some being engaged in conducting negotiations directly with employers on behalf of the unions concerned, others exercising a purely

FREEDOM OF ASSOCIATION

advisory influence, while others confer certain financial benefits on
the members of the associated unions.
The following table shows the number of federations and the
approximate gross total membership of federations in Great Britain
during the years 1913-1925. It is to be noted that in many instances
trade unions or branches of trade unions are affiliated to more than
one federation, and therefore a large number of trade union members
are counted more than once in the gross membership given below.

i9!3
1914

*9i5
1916
1917
1918
1919
1920
1921
1922
1923
1924
1925

Number of
federations

Approximate gross
total membership

I25
137
148

4,370,000
4,730,000
4,943,000
4,980,000
6,481,000
8,631,000
9,896,000
10,749,000
8,639,000
6,236,000
5,648,000
4,503,000
4,213,000

163
182
152
134
116
105

95
92
90

One of the largest general federations is the General Federation
of Trade Unions, set up in 1899. In 1925 this federation had an
affiliated membership 0^830,316, organised in 118 unions.
TRADES COUNCILS

The local organisation of trade union branches into trades
councils is of considerable importance in the British trade union
movement. These councils provide the local machinery by which the
national policy of the unions, expressed through the Trades Union
Congress (see below) can be put into effect. At the end of 1925 the
number of trades councils in Great Britain and Northern Ireland
existing wholly or purely for industrial purposes (including industrial
sections of local Labour Parties) was 480. The total trade union
membership represented for industrial purposes on these councils
through payment of fees by local trade union branches or oí local

GREAT BRITAIN

trade unions was approximately 2,444,000 in that year, representing
about 41 per cent, of the total membership of trade unions.
T H E T R A D E S UNION CONGRESS

The first meeting of the Trades Union Congress was held in 1868.
With the exception of two years, annual meetings have been held ever
since. " It is important to understand that intrinsically the Trades
Union Congress has not been an organic entity like most of the trade
union federations or centres in other countries. It has been an
annual meeting of unions, discussing together matters of common
interest embodied in resolutions sent in by them for the Annual
Congress, and the Standing Orders have been based almost entirely
upon that principle. " '
Until 1921 the executive of the Trades Union Congress was the
so-called Parliamentary Committee, whose chief functions were to
watch legislation in the interests of labour, draft Bills, interview
Ministers, and generally to voice the views of organised labour in the
periods between the annual Congresses. The General Council, which
replaced the Parliamentary Committee in 1921, is more of the nature
of a true executive body representing the British trade union movement, and has from time to time taken powerful action in matters
affecting large bodies of workers.
The number of organisations affiliated to the Trades Union Congress in 1926 was 174, with a membership of approximately 4,365,000.
The Congress is affiliated to the International Federation of Trade
Unions and is recognised by the British Government as the authoritative body for expressing the views of British labour and as such
appoints the delegate to the annual International Labour Conference.

1
Walter M.
p. 63, 1926.

CITRINE

: The Trade Union Movetnent of Great Britain,

CHAPTER II
THE LEGAL STATUS OF TRADE UNIONS

§ 1. — The Legal Character of Trade Unions
T H E STATUTORY DEFINITION

Section 16 of the Trade Union Act Amendment Act, 1876, defines
trade unions as follows :
The term " trade union " means any combination, whether temporary
or permanent, for regulating the relations between workmen and masters,
or between workmen and workmen, or between masters and masters, or
for imposing restrictive conditions on the conduct of any trade or business,
whether such combination would or would not, if the principal Act (the
Trade Union Act, 1871) had not been passed, have been deemed to have
been an unlawful combination by reason of some one or more of its
purposes being in restraint of trade.
(The above definition is practically identical with that contained
in the Act of 1871, except that the latter included only such
combinations as would, but for the passing of the Act, have been
unlawful by reason of their purpose being in restraint of trade.)
The Acts explicitly do not affect :
(1) Any agreement between partners as to their business ;
(2) Any agreement between an employer and those employed by
him as to such employment ;
(3) Any agreement in consideration of the sale of the goodwill
of a business or of instruction in any profession, trade or
handicraft ;
and therefore, presumably, such agreements still fall under the
general law as to agreements in restraint of trade.
The definition has been slightly modified by sections 2 (1) and
1 (2) of the Trade Union Act, 1013, which define a trade'union as
being, for the purposes of the Trade Union Acts (1871, 1876, 1906,
1013), any combination the principal objects of which are (a) those

GREAT BRITAIN

enumerated in the Act of 1876 (as above), and also (6) the provision
of benefits to members ; (6) having been added because a doubt
had been expressed by Lord Atkinson in Osborne y. Amalgamated
Society of Railway Servants as to whether such an object is covered
by the words " regulating the relationships between workmen and
workmen ". The text of the Act is, however, ambiguous, and it is
not clear whether (6) is disjunctive or conjunctive. If the latter,
then in addition to the other statutory objects, a trade union must,
in order to be covered by the Acts, also provide benefits to its
members ; if the former, then every combination which provides
benefits is a trade union, whatever its other objects, which seems
absurd. The matter has never been judicially considered, but the
difficulty may perhaps be surmounted by taking (b) disjunctively, at
the same time restricting the meaning of the word " benefits " to
" benefits of a trade union type " l .
The term " trade union " was in use before the passing of the
Act of 1871, and was not introduced by it. The Act was intended
to legalise combinations for trade purposes which would otherwise
have been unlawful ; and in the years immediately preceding the
passing of the Act combinations both of workers and of employers 2
had been found by the Courts to be unlawful at common law, as
being in restraint of trade. Consequently the term " trade union "
is used in the Act to cover all such combinations, whether of
masters or of workers ; but it should not be forgotten that in its
ordinary, as distinct from its strictly legal, significance, the term is
applied only to combinations of workers.
Any combination which has secured registration or certification
under the Acts is deemed to be a trade union, whatever its objects,
so long as the registration or certificate is in force, but an unregistered
and uncertificated combination which does not fall within the
definition of " trade union " as provided by the Act of 1913 is not a
trade union and does not benefit by the privileges and immunities
conferred under the Trade Union Acts. Since the Osborne judgment
a registered union has been legally regarded as a species of corporate
body, incorporated under the Trade Union Acts, for the purposes
therein defined.

SLESSER and BAKEK, op. cit., p.

126.

Cf., e.g., Hilton v. Eckersley (1885), 6 E. and B. 47, where the
agreement of a number of master spinners not to raise wages wa? held to
be void and unenforceable.

FRKKDOM OF ASSOCIATION

The definition contained in the 1913 Act is not meant to be
exhaustive. It is provided by section 1 (1) of the Act that " the fact
that a combination has under its constitution objects or powers other
than statutory objects within the meaning of this Act shall not
prevent the combination being a trade union for the purposes of the
Trade Union Acts, 1871 to 1906, so long as the combination is a trade
union as defined by this Act
and such trade union shall
have power to apply the funds of the union for any lawful objects
or purposes for the time being authorised under its constitution ".
The terms of the definition are, it will be noticed, very wide.
The restrictive conditions imposed on the conduct of any trade or
business need not, for instance, be more than are necessary to secure
results that are beneficial to the trade. Thus a " tea clearing-house ",
a trading association which fixes the rate at which federated trading
companies may charge for their goods, and a trade protection society,
imposing restrictions on federated bodies as to the employment by
them of particular persons, have all been held to be trade unions \
The Friendly Societies Acts, Industrial and Provident Societies
Acts, and Companies Acts do not apply to trade unions. A trade
union, that is to say, is not regarded as falling within the definition
of a friendly society, an industrial and provident society (i.e. a
registered industrial society in whicli no member holds more than
¡£200 in shares) or a limited company, and cannot be registered as
such 2. (Any trade union, however, which insures or pays money
on the death of a child under ten years of age is deemed to be subject
to the provisions of sections 62-67 of the Friendly Societies Act,
1896 3, whereby such payments are regulated \ )

QUASI-CORPORATE STATUS

Before the Taff Vale decision associations were generally
regarded as being classified in two categories — corporate associations
and unincorporate or voluntary associations. A corporate association
was one which had acquired legal personality through the authority,
1
Mineral Water Bottle Exchange a-.id Trade Protection Society v\.
Booth (1887), 36 Ch.D. 465 ; Edinburgh and District Aerated Water
Manufacturers' Defence Association, Ltd. v. Jenkinson (1903), 40 Sc.
L.R. 825 ; Chamberlain's Wharf v. Smith (1900), 2 Ch. 60.Í.
2
Trade Union Act, 1871, section 5.
3
59 and 60 Vict., c. 25.
4
39 and 40 Vict., c. 22, section 2.

GREAT BRITAIN

either express or implied, of the Crown ; that is to say, the corporation might owe its existence to custom or common law, or to
prescription (royal authority by charter being, in either of these
cases, presupposed by a legal fiction) ; to a charter in express terms
granted direct by the Pope, the Crown, or some person (e.g. a
Bishop) possessing jura regalia or specially licensed by the Crown ;
or to an Act of Parliament. A corporation owing its legal existence
to a charter, real or fictitious, had, and has, roughly speaking, power
to do everything not explicitly forbidden by the charter ; a corporation
created by Statute, on the other hand, may not lawfully pursue any
activity not expressly or implicitly provided for in the Act, anything
beyond these limits being ultra vires for it '.
A voluntary association was regarded in quite a different light.
It was supposed, by a legal fiction, to be based upon a contract entered
into by each member with every other member ; its property was
vested in trustees, the trust again being supposed to be created by
contracts between individuals ; it had no legal personality, and
could only sue or be sued through representative individuals.
Trade unions were regarded as being ordinary voluntary
associations of individuals. It was generally believed, and was
actually within the memory of living persons, that Parliament in 1871
had deliberately intended to avoid conferring corporate status upon
them ; the Act was designed simply to remedy the disadvantage
under which they laboured in comparison with other voluntary
associations, i.e. the fact that their agreements, rules, and trusts
were made void and legally unenforceable by their objects being in
restraint of trade.
In 1901, however, the House of Lords decided, in the Taff Vale
case, that the Legislature had conferred on trade unions a kind of
corporate status, which carried with it certain corporate liabilities ;
and in ioio, in the Osborne case, they decided that the Trade Union
Acts were to be construed strictly as Statutes of incorporation, and
that a precise limitative enumeration of the activities which a trade
union may pursue was contained in the statutory definition of " trade
unions ". How far this judgment covers unregistered trade unions
as well as registered is doubtful.
Trade unions are thus no longer to be considered as ordinary
voluntary associations ; they are quasi-corporations, with many of
the privileges and liabilities of full corporations.
1

Ashbury Railway Carriage Co. v. Riche (1875), L.R. 7 H.L. 653.

Freedom of Association

KREEDOM OF ASSOCIATION

OWNERSHIP OF PROPERTY

A trade union, whether registered or unregistered, is capable,
like any other voluntary association, of owning property through the
medium of trustees. Under the Mortmain and Charitable Uses Act,
1888, a corporation may not acquire land unless licensed by the Crown
or by Statute to do so, but it is still uncertain whether the corporate
status of a trade union is sufficiently definite to bring it within the
scope of this restriction.
A registered trade union is expressly empowered, under section 7
of the Act of 1871, to purchase or take upon lease, in the name of its
trustees for the time being, any land not exceeding one acre, which
it may sell, exchange, mortgage, or let ; no purchaser, assignee,
mortgagee, or tenant being bound to enquire. whether the trustees
have the necessary authority. For the purposes of this provision every
branch of a trade union is considered as a distinct union.
It is possible that the effect of this enactment is to limit a registered union's power of acquisition to the amount named. An
unregistered trade union can apparently acquire land without limit.
A devise of land by will to a trade union has been held to be
invalid ', though the grounds on which this judgment was based are
not quite clear.
All real and personal estate of a registered union or of a branch
of a registered union is vested in and controlled by the trustees for
the time being of the union or the branch, as the case may be, for
the use and benefit of the union and its members. On the death or
removal of a trustee the property is automatically vested in his
successors without any conveyance or assignment, except in the case
of. stocks and securities in the public funds of Great Britain and
Ireland, which must be transferred to the names of the new trustees.
When a trustee, as the wording of the Act stands, of any union,
registered or unregistered (though the authority given to the
Registrar seems to imply that the provision is only meant to apply to
a registered union), in whose name any stock belonging to a union
or branch transferable at the Bank of England or Bank of Ireland is
standing, is absent, dies, becomes bankrupt, becomes a lunatic, is
removed, etc., the Registrar, on application from three members of
the union or branch, may direct the transfer of the stock into the
names of other trustees.
1

In re Amos, Carrier v. Price (1891), 3 Ch. 159.

GREAT BRITAIN

In all actions and legal proceedings concerning a registered
union's property (excepting stocks) the property is to be stated " to
be the property of the person or persons for the time being holding
the said office of trustee, in their proper names, as trustees of such
trade union, without any further description ".
A trustee of a registered union is not liable to make good, any
deficiency which may arise or happen in the funds of the union, but
is only liable for the moneys actually received by him on account
of the union.
If an official or representative of a registered union obtains by
fraudulent misrepresentation or fraudulently withholds or misappropriates any moneys, securities, etc., of the union, the Court of
Summary Jurisdiction for the place where the registered office of
the union is situated, or for thé place where the offence has been
committed may, on complaint being made, by summary order order
such effects to be given up or repaid, and, if the Court think fit,
a further sum not exceeding ^20, together with costs not exceeding
£1, to be paid or in default inflict a penalty of imprisonment up to
three months.
(Protection in such matters is also afforded to associations,
including both registered and unregistered trade unions, by the
Falsification of Accounts Act, 1875 ', under which any person employed by the society who, with intent to defraud, mutilates or
destroys a book, security, or account of the society, or makes a false
entry in an account, is liable to penal servitude for seven years, and
by the Larceny Act 1916 2, which enables joint proprietors or trustees
to be prosecuted and punished for stealing or embezzling the common
property. Proceedings under these Acts provide a surer means of
recovering the misappropriated effects than under the Trade Union
Act of 1871 s .)
The rendering of accounts by the treasurer and other officers of
a registered trade union to the trustees or members, either at the times
provided for in the union's rules or whenever such accounts may be
required of them, is made compulsory. An officer of a registered
trade union who fails to render proper accounts can be sued in " any
competent Court " (not including, apparently, a Court of Summary
Jurisdiction), for the recovery of the union's books and property.
1

38 and 39 Vict., c. 24.
6 and 7 Geo. V, c. 50.
3
Verdun v. Watson (1891), 2 Q.B.D. 288; United Builders' Labourers'
Union v. Stephenson (1906), Times, 7 February ; Agnew v. Addison,
JO Rettie 19.
2

FREEDOM OF ASSOCIATION

It does not appear, however, that in practice this provision gives a
registered union any special advantage over an unregistered one.
Section 9 of the Act of 1871 expressly empowers the trustees of a
registered union to bring or defend legal actions in any Court with
regard to any property or claims to property of the union.
§ 2. — The Legal Regulation of the Right to Combine
RESTRICTIONS ON THE INDIVIDUAL R I G H T TO COMBINE

The only physical restriction, as distinct from civil restrictions
(e.g., that on members of the police force — see below), on individual
membership of a trade union is one of age. Section 9 of the Act of
1876 provides that a person under the age of 21 but above the age
of 16 may be a member of a trade union unless the rules provide to
the contrary. No differentiation is made as to sex.
Prohibition of Trade Unions in the Police Force
Under section 2 of the Police Act, 1919 1, it is unlawful for
a member of a police force to be a member of any trade union other
than the Police Federation set up under the Act, or of any other
association having for its objects, or one of its objects, to control
or influence the pay, pensions, or conditions of service of any
police force, under penalty of disqualification for the force ; though
where a man was a member of a trade union before becoming a
constable, he may, with the consent of the Chief Officer of Police,
continue to be a member of that union during his service in the
force.
The question as to whether any body is a trade union or
association covered by this prohibition is to be determined by
the Minister of Labour.
Section 3 of the Act provides that if any person causes, or
attempts to cause, or does any act calculated to cause disaffection
amongst the members of any police force, or induces, or attempts to
induce, or does any act calculated to induce any member of a police
force to withhold his services or to commit breaches of discipline,
he shall be guilty of a misdemeanour, and shall be liable on eonvic1

9 and 10 Geo. V, c. 46.

GREAT BRITAIN

tion or indictment to imprisonment, with or without hard labour,
for a term not exceeding two years, or on summary conviction, to
imprisonment, with or without hard labour, for a term not exceeding three months or to a fine not exceeding fifty pounds, or to both.
A member of a police force so convicted forfeits all pension rights and
is disqualified for being a member of any police force — though if he
was not sentenced to imprisonment without the option of a fine
he may be paid, at the discretion of the police authority, all or
part of the deductions from his pay towards the pension fund.
REGISTERED

AND UNREGISTERED

TRADE

UNIONS

In Great Britain a trade union may register itself under the
Act of 1871, or it may abstain from registration. An unregistered
trade union may, if it so wishes, obtain a certificate under section
2 (2) of the Trade Union Act of 1913.
Registration : Procedure and

Effects

Procedure
Under the Act of 1871 application for registration may be
made by seven or more members of a trade union. Such applica-,
tion is made on the regulation form, stating the name in which it
is proposed to register the union and the situation of its office, and
accompanied by two printed copies of the rules of the union, by a
list of the titles and names of the officers, and by a general statement showing (a) the assets and liabilities of the union at the date
on which the statement is made out, and (fc) the receipts and
expenditure of the union during the last preceding year under
separate heads corresponding to the several objects of the union.
The rules must specifically show the name of the union ; the place
of meeting for the purposes of the union's business; the whole
of the objects for which it is established or to be established ; the
purposes for which its funds shall be applicable ; the conditions
under which any member may become entitled to any benefit
assured thereby ; the fines and forfeitures to be imposed on any
member of the union ; the manner of making, altering, amending,
and rescinding rules ; a provision for the appointment and removal
of a general committee of management, of a trustee or trustees,
treasurer and other officers; a provision for the investment of the
funds and for an annual or periodical audit of accounts ; a provision

FREEDOM OF ASSOCIATION

for the inspection of the books and names of members of the trade
union by every person having an interest in the funds of the
union ; and a provision for the manner of dissolving the union.
A copy of the rules must be delivered by a registered trade union
to every person on demand, on payment of a sum not exceeding
is. Any alteration of the rules must be registered.
The application for registration is addressed to the Registrar
of Friendly Societies and the certificate of registration is issued
by him. A fee of £i is payable in advance for this certificate.
A certificate of registration may only be withdrawn by the
Registrar (i) at the request of the union, or (2) on proof to his
satisfaction that the certificate was obtained by fraud or mistake,
or that the registration has become void owing to any of the
purposes of the union having become unlawful 1 , or that the unioa
has wilfully and after notice from a registrar, violated any of the
provisions of the Trade Union Acts or that it has ceased to exist,
or if the constitution of the union has been altered in such a way
that, in the opinion of the Registrar, its principal objects are no
longer " statutory objects ".
Unless the registration has become void the Registrar must
give two months' notice to the union of his intention of withdrawing or cancelling the certificate, except at its request 3 . Notice
of dissolution of a trade union must be sent with the signature of
the secretary and seven members to the registrar within 14 days
thereafter.
Effects
It should be clearly understood that registration does not make
any fundamental difference in the legal status of a trade union.
Whether registered or unregistered a trade union is still a voluntary
unincorporated society, possessing, however, some of the privileges
and responsibilities of a corporation ; it is in either case what is
sometimes called a quasi-corporation. It is true that some of the
dicta in the Osborne case, for instance, tended to ascribe a fuller
corporate status to registered than to unregistered trade unions. On

' 34 and 35 Vict., c. 31, section 6. That is, otherwise than as in
restraint
of.trade.
2
39 and 40. Vict., c. 22, section 8 ; 34 and 35 Vict., c. 31, section 6 ;
2 and 3 Geo V, c. 30, section 2 (t).

GREAT BRITAIN

the other hand, in both the Taff Vale and Osborne cases, Lord
H a l s b u r y (an authority in legal matters whose opinion carries very
great weight) m a d e n o distinction between registered a n d unregistered trade unions in respect of (a) corporate liability for torts, and
(If) t h e application of the doctrine of ultra vires.
I n Wilson v.
Scottish Typographical
Association L o r d Skerrington h e l d t h a t unregistered unions do not fall within t h e scope of the Osborne decision;
b u t this j u d g m e n t was reversed on a p p e a l l , and in a case decided
in the Chancery Court of Justice (8 July 1910) it was held t h a t
unregistered unions a r e covered b y the Osborne j u d g m e n t .
Lord Justice Farwell in the Osborne case 2 summed u p t h e effects
of registration as follows ;
The Act makes provision for the registration of trade unions with
resulting advantages not given' to unregistered societies. The Act is
framed on the lines of the Companies Act, 1862, and provides that any
seven or more members of a trade union may, by subscribing their names
to the rules of the union, register the union with a name and exclusive
right thereto. Such union can buy and sell land, not exceeding one acre,
and personal estate, without limit of amount, for the use and benefit of
such trade union and the members thereof. Trustees have power, to ;bring
and defend actions touching such property. Treasurers and officers are
bound to account, and annual returns have to be made to the Registrar of
the assets and liabilities, receipts and expenditure of the union, and the
union must have rules in the scheduled form, by which, amongst other
things, it is required to state the whole of its objects, and provision is
made for its amalgamation with other unions and its winding up.
T h e Assurance Companies Act of 1909 a n d the Income T a x Act
of 1918 also confer certain advantages on registered trade unions. . T h e
requirements imposed by the Assurance Companies Act, 1909, on
persons or bodies carrying on insurance business do not apply to
registered trade unions '. U n d e r the Income T a x Act, 1918, a
registered trade union which is precluded b y Act of Parliament or
by its rules from assuring to any person a sum exceeding ¿ 3 0 0 or
an a n n u i t y exceeding £52 is exempted from property a n d income
tax in respect of interest and dividends applicable a n d applied solely
for the purpose of " provident benefits ", i.e. payments to members
during sickness or incapacity from personal injury or while o u t of
work, or to a n aged member by way, of superannuation, or to a
1 (1912) S.C. 534. j
.
* (1909) 1 Ch. 163, p. 190.
* The Board of Trade may also, on the application of any unregistered
trade union originally established more than 20 years before the coming
into force of the Act, and after consultation with the chief Registrar of
Friendly Societies, exempt the union from the provisions of the Act. '

FREEDOM OF ASSOCIATION

member who has met with an accident, or has lost his tools by fire
or.theft, or payments in discharge, or aid, of funeral expenses on the
death of a member, or the wife of a member, or as provision for
the children of a deceased member, so long as such payments are
authorised by the rules.
The following summary of the principal effects of registration
(made by Professor Geldart) is of value :
(i) It gives some security for the proper conduct of the union by
requiring annual returns to be made to the Chief Registrar of Friendly
Societies showing the financial position of the union, changes made in
the rules, and changes of officers.
(2) Summary proceedings are authorised for the recovery of moneys
withheld or misappropriated by officers and members, in place of more
dilatory and expensive proceedings open to an unregistered union.
(3) Expense is avoided in the transfer of property on a change of
trustees.
(4) Provident funds of registered trade unions are exempted from
Income Tax.
Certification
Under section 2 (2) of the Trade Union Act, 1913, an unregistered trade union may at any time, without registering the union,
apply to the Registrar for a certificate that the union is a trade
union within the statutory definiton, and the Registrar, if he is satisfied after examining the constitution of the union and its methods of
procedure that the principal objects of the union are " statutory "
objects, as defined in the Act, and that the union is actually carried
on for those objects, is to grant the certificate. He may, however,
withdraw his certificate if any person applies to him to do so, and
if, after giving the union an opportunity of being heard, he is satisfied that the certificate is no longer justified.
Such a certificate is conclusive for all purposes, but it conveys
no advantages beyond providing indisputable evidence as to the trade
union character of the union, should such evidence be required (e.g.
if the union claims the exemption from liability for tort conferred
by section 4 of the Trade Disputes Act, 1906).
Amalgamation
Amalgamation between one or more registered trade unions and
one or more unregistered unions may take place if, on a ballot
being taken in each union, the votes of at least fifty per cent, of the
members entitled to vote are recorded, and of the votes recorded

GREAT BRITAIN

those in favour exceed by twenty per cent, or more the votes against,
without prejudice to the creditors of any of the unions concerned.
The registered unions who are parties to such amalgamation or
change of name must give notice to the Registrar, and until this
has been done the change does not take effect.
§ 3. — Legal Liability and Procedure
LIMITATIONS ON LIABILITY AND JURISDICTION

Contract
A trade union, whether registered or unregistered, is still,
notwithstanding its quasi-corporate character, nominally a voluntary
association. In the case of such associations, the English Courts
refuse to interfere on any questions touching the personal relationship
of members, or with their domestic relationships in general. Any
interference must be based on " the right of property vested in the
member of a voluntary association and of which he is unjustly deprived ". The foundation of the Court's jurisdiction was thus
defined by Sir George Jessel in Rigby v. Connol \ The definition
given as under Scotch law by Lord Inglis in Aitkëti v. Associated
Carpenters and Joiners of Scotland 2 agrees with that of Sir George
Jessel, but shows that the term " right of property " in this connection must be construed broadly. " The only ground ", he said,
" upon which a member could maintain an action against a voluntary
association of this kind would be that he had suffered patrimonial
or pecuniary loss, or that he had been deprived of some civil
right . . . . There are many rights which could not be called rights
of property which, nevertheless, the law will protect, as, for instance,
if there was an association of men subscribing for a benevolent
purpose, say, for the endowment of a scientific institution, the
whole funds of the association being dedicated to that charitable
purpose on the terms that the administration should be under the
control of the association, I can see no reason why membership of
such an association should not have the same legal protection as
would be given in the case of an association where the members had
a beneficial interest in the funds. In the case of a trade union there
1
(1880) 4 Ch. D. 482, at p. 487.
* 22 Sc. L.R. 796.

FRBEDOM OF ASSOCIATION

is undoubted interest in property even in the narrow sense of the
word. "
Such would be the extent of the C o u r t ' s jurisdiction in the
internal affairs of a trade union, were it a n ordinary voluntary association, legal at common law. T r a d e unions, however, are generally
n o t so legal ; and it was in order to remove their illegality that the
Act of 1871 was passed., A p a r t from this Act, there could be no
possible ground for interference b y the Courts in the internal affairs
of any trade union whose principal objects were in restraint of
trade.
T h e Act of 1871 brought trade unions within the scope of the
law ; b u t at the instance of the trade unionists a n d their advisers
the possibilities of interference b y t h e Courts were restricted b y t h e
provisions of section 4, which r u n s as follows :
Nothing in this Act shall enable any Court to entertain any legal
proceeding instituted with the object of directly enforcing or recovering
damages for the breach of any of the following agreements, namely,
(1) Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of
such trade union shall or shall not sell their goods, transact
business, employ, or be employed ':
(2) Any agreement for the payment by any person of any subscription
or penalty to a trade union :
(3) Any agreement for the application of the funds of a trade union —
(a) To provide benefits to members ; or
(b) To furnish contributions to any employer or workman not
a member of such trade unión, in consideration of such employer or workman acting in conformity with the rules or
resolutions of such trade union ; or,
(c) To discharge any fine imposed upon any person by sentence
of a Court of Justice ; or,
(4) Any agreement made between one trade union and.another ; or,
(5) Any bond to secure the performance of the above-mentioned
agreements.
But nothing in this section shall be deemed to constitute any of the
above-mentioned agreements unlawful.
T h e purpose of this section is to ensure that section 3 of the
Act, which provides that' " the purposes of any trade union shall
not, by reason merely that they are in restraint of trade, be unlawful
so as to render void or voidable any agreement or trust ", should not
result in giving jurisdiction to the Courts in regard to trade union
contracts. I n the words of Lord Justice Buckley l : " By virtue of
section 3 contractual relations which would have been void for

1
In Osborne v. Amalgamated
( i o n ) , 1 Ch. 540, at p. 566.

Society of Railway

Servants

(No. 2)

GREAT BRITAIN

illegality become lawful contractual relations, and enforceable
accordingly. But this is qualified by section 4. That is a section
which lawfully defines certain agreements which may form part of
the contractual terms, and enacts that nothing in the Act shall enable
any Court to entertain any legal proceeding to enforce those defined
agreements. Notwithstanding that section 3 has rendered contractual relations which include such terms lawful, the particular defined
agreements are nevertheless to be unenforceable in any Court. "
The value to the unions of the restrictions placed by section 4
of the 1871 Act on the jurisdiction of the Courts in regard to contract
has been considerably reduced in practice by the interpretation
which many judges have applied to the words " directly enforcing ".
The word " directly " appears to have been inserted for the purpose
of distinguishing between enforcement by direct order (direct
enforcement) and enforcement by the recovery of damages (indirect
enforcement), which in this section of the Act are coupled together.
It is clear that a claim for damages for the breach of any of
the agreements mentioned cannot be entertained, but " directly
enforcing " has been very variously interpreted. Thus, the Court
does not regard the granting of an injunction to restrain the executive
committee of a union from expelling a member for participation in
a co-partnership scheme 1 in violation of the union's rules as a
" direct enforcement " of an agreement covered by section 4 (1) ;
or the granting of an injunction to restrain the committee from
expelling a member for non-payment of a fine or levy 2 in violation
of the rules as a direct enforcement of an agreement covered by
section 4 (2) ; or the granting of an injunction to prevent the
misapplication of a union's funds 3 a direct enforcement of an
agreement covered by section 4 (3). The Court is accordingly
ready to prevent violation of trie rules under any of these three
heads by granting an injunction. On the other hand, the Court
has refused to entertain an action in which an injunction restraining
a federation of unions from expelling a union was asked for *, on
the eround that to grant such an injunction would amount to a
direct enforcement of an agreement between one trade union and
another, and was therefore covered by section 4 (4).
1
(1922) Amalgamated Society of Carpenters, Cabinet-makers and
Joiners v. Braithwaite (1922) 2 A. C. 440.
2
(1921) Brodie v. Bevan. 38 T.L.R. 172 ; (1923) Blackall v. National
Union of Foundry Workers, 39 T.L.R. 431.
3
(1905) Yorkshire Miners' Association v. Howden, A.C. 250.
4
(192T) M'Clusky v. Cole, (1927) 2 Ch. 7

FREEDOM OF ASSOCIATION

It should be remembered that a society, whose purposes are not
void at common law, is still independent of the Act of 1871 in respect
of its domestic rules and agreements, which, so long as they are
lawful, can be enforced by the Courts. The illegality of an association at common law by reason of its acting in restraint of trade is.
not to be presumed, but must be established by those who rely on
it *. Thus, in the Osborne case, the union was held to be a lawful
combination in spite of the fact that its rules provided for the
eventuality of a strike. Some unions, therefore, are, as regards the
enforceability of their internal agreements, still in the same position
as any other voluntary unincorporated association.
There is no general provision in any enactment forbidding the
bringing of an action against a trade union for breach of contract,
though section 4 of the Act of 18 71, and particularly subsection (4)
of that section (which prevents the direct enforcement of any
agreement between one trade union and another — e.g. an agreement between a union of men and a union of masters as to terms
and conditions of employment) severely restricts the enforcement
of contracts involving trade unions.
Tort
The effects of the Taff Vale decision with regard to the liability
of trade unions for torts committed by their agents as described
above, in Part I, section 4, of the Trade Disputes Act, 1906, now
limit the liability of trade unions as follows :
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 in respect of any tortious act alleged
to have been committed by or on behalf of the trade union, shall not be
entertained in any Court.
In this clause " an action against a trade union " means an
action in which a union is sued in its own name ; and " an action . . .
against any members or officials thereof on behalf of themselves and
all other members of the trade union *' means a representative action
against the union, and not an action to make members or officials
individually liable. It has been held 2 that the immunity conferred
1
Russell v. Amalgamated Society of Carpenters and Joiners (1910),
1 K.B.
506.
a
In Bussy v. Amalgamated Society of Railway Servants and Bell
(1908), 24 T X . Î . 436. "

GREAT BRITAIN

by the clause does not extend to officials personally, who may be
held liable for tortious acts even though committed on behalf of the
union.
It is possible to imagine a trade union which would not necessarily be one " of workmen or masters " — e.g. a combination of
professional men — and such a combination would apparently not
be covered by this clause.
It is doubtful whether the words " any tortious act alleged to
have been committed " could be extended so as to prevent the
granting of an injunction to restrain a tort threatened in the future.
Subsection 2 of the same section provides that nothing in the
section " shall affect the liability of the trustees of a trade union to
be sued in the events provided for by the Trade Union Act, 1871,
section nine, except in respect of any tortious act committed by or
on behalf of the union in contemplation or in furtherance of a trade
dispute ". In the words of Lord Macnaghten " it is not easy to see
the object of subsection 2 of section 4, or to understand its precise
meaning " 1 . It is clear that the trustees cannot be sued in tort
where there is a trade dispute ; but what is the position where there
is no trade dispute ? Apparently in such a case the trustees can
be sued and damages enforced against the union's property a .
This liability, if it exists, does not apply to the trustees of an
unregistered union.
METHODS BY WHICH TRADE UNIONS CAN BRING
AND DEFEND ACTIONS

Trade unions, being unincorporate associations, cannot be made
criminally liable for active wrongdoing or for neglect to perform a
statutory duty. The criminal provisions contained in the various
Acts affecting trade unions can only be enforced by penalties against
the officers and members as individuals, and not by fines to be paid
out of the union's funds.
1

In Vacher v. London Society of Compositors (1913), A.C. 107, at

p. 119.

2
Per Lord Haidane, ibid., p. 115. — In Linaker v. Pitcher (1901),
17 T.L.R. 256, an action was successfully brought against the trustees
of a union for a libel published in a periodical registered as a newspaper
in the names of the trustees of a union, and an order was made for
payment òf damages out of the union funds. If this case was rightly
decided, a similar action could still be brought and damages could be
recovered from union funds, unless the wrong complained of was done
in contemplation or furtherance of a trade dispute.

FREEDOM OF ASSOCIATION

It was decided in the Taff Vale case that a trade union might
be made civilly liable for tortious acts committed by its agents and
sued in its own name as though it were a corporation ; but this decision was reversed by the Trade Disputes Act, ioo6, and a trade
union can now no longer be sued either in its own name or by means
of a representative action in respect of tortious acts, though it may
be possible under section 4 (2) of the Act of 1906 to sue a union in
tort through its trustees where there is no trade dispute
A trade union can be sued for breach of contract or in matters
affecting property, in a manner which varies according to whether
the union is registered or not, and according to the part of the United
Kingdom in which the action is brought.
Under section 9 of the Act of 1871 the trustees of a registered
trade union, or any other officer authorised to do so by the rules,
may bring or defend " any action, suit, prosecution, or complaint
in any Court of law or equity touching or concerning property, right
or claim to property of the trade union " in their proper names,
without other description than the title of their office.
In the case of a registered trade union, therefore, the following
methods of procedure are possible, in cases where the law allows the
Court to entertain an action :
(a) The union may sue or be sued in its registered name, though
if judgment is desired to be enforced against the union's
property it may be necessary to add the trustees as parties.
This procedure apparently cannot be followed in the case
of a union which is lawful at common law, as the right to
sue a union in its registered name arises presumably out of
the Act of 1871, and such a union does not depend for its
status upon that Act.
(b) Under Order XVI, rule 9, of the Supreme Court the union
may sue or be sued in a " representative action " ; that is to
say, in the words of the rule, " where there are numerous
persons having the same interest in one case or matter, one
or more of such persons having the same interest in such
cause or matter may sue or be sued or may be authorised by
the Court or a judge to defend in such cause or matter, on
behalf of or for the benefit of all persons so interested. "
Where this form of action is employed, the persons
selected to sue or be sued must be such as may be fairly taken
to represent the union — if possible persons who are managers

GREAT BRITAIN

of the union, having control over it or its funds, such as the
executive committee or the trustees 1 .
(c) The union may, under section g of the 1871 Act, sue or be
sued through its trustees. This procedure, like that of suing
a union in its registered name, is apparently not open in the
case of societies lawful at common law.
In the case of unregistered trade unions a representative action.
must be brought in England and Ireland ; but in Scotland a trade
union, whether registered or unregistered, may sue or be sued in the
general name of the trade union, either with or without the names of
three of its members.

Per Lord Macnaghten, in the Taff Vale case, p. 439.

CHAPTER III
LEGAL RESTRICTIONS OF TRADE UNION OBJECTS
AND ACTIVITIES

§ 1. — Objects
The Osborne judgment, and the manner in which trade unions
came, in consequence of it, to be regarded as a species of corporate
body, incorporated for purposes defined by statute, are described
above. The Trade Union Act, 1913, was enacted mainly with a view
to enabling trade unions to continue to pursue political objects, in
spite of the Osborne judgment. It is provided in section 1 (1) that :
" The fact that a combination has und«- its constitution objects or
powers other than statutory objects within the meaning of this Act "
(i. e., " the regulation of the relations between workmen and masters, or
between workmen and workmen, or between masters and masters, or
the imposing of restrictive conditions on the conduct of any trade or
business, and also the provision of benefits to members " — section 1(2))
" shall not prevent the combination being a trade union for the purposes
of the Trade Union Acts, 1871 to 1906, so long as the combination is a
trade union as defined by this Act " (i.e. " any combination, whether
temporary or permanent, the principal objects of which are under its
constitution statutory objects, " and, ipso facto, any registered trade
union — section 2 (1)) " and subject to the provisions of this Act as to
furtherance of political objects, and such trade union shall have power
to apply the funds of the union for any lawful objects or purposes for the
time being authorised under its constitution. "
Thus the only restrictions on the powers and objects (the
distinction between which is not clear) of a trade union are (1) that
the objects and purposes of the union must be authorised under its
constitution ; (2) that they must be lawful ; and (3) that, as regards
political objects, the union must comply with the special provisions
on that subject contained in the 1913 Act. A trade union may, for
instance, carry on a trade or industry.

i
GREAT BRITAIN

PURSUIT OF POLITICAL OBJECTS

Before the passing of the Trade Union Act, 1913, it had been
held not to be within the powers of a trade union to maintain out of
its funds Members of Parliament for the support of the interests of
the union \ The same principle extended to representation on
municipal or other local government authorities, except boards of
guardians '. The Act was passed to remedy that state of things and,
subject to restrictions, to give a trade union liberty to establish a
separate political fund for the furtherance of these political objects
outlined in section 3 (3).
Under section 3 of the Act the funds of a trade union may not
be applied either directly or in conjunction with any other trade union,
association, or body, or otherwise indirectly, in the furtherance of
certain defined political objects (without prejudice to the furtherance
of any other 3 political objects) unless the furtherance of those objects
has been approved as an object of the union by a resolution, for the
time being in force, passed on a ballot of the members of the union
(taken in the manner prescribed by the Act) by a majority of the
members voting. Moreover, where a resolution approving such
objects is in force, rules must be in force providing :
(a) that a separate political fund be constituted and that individual members shall not be obliged to contribute to this fund if they
give notice of objection in the prescribed manner ; and
(b) that a member who has secured exemption from the
obligation to contribute to the political fund shall not be victimised
or subjected to any disadvantage.
The rules providing for these matters must in every case, whether
the union is registered or not, be submitted to and approved by the
Registrar of Friendly Societies. If any member of a trade union
alleges that he is aggrieved by a breach of any rule, he may complain
to the Registrar of Friendly Societies, and the Registrar, after giving

Amalgamated Society of Railway Servants v. Osborne (IQIO),
A.C. 87.
2
Wilson v. Amalgamated Society of Engineers (1911), 2. Ch. 324.
1
It is difficult to imagine what political objects are here intended to
be referred to, beyond those mentioned in subsection (3), especially as the
wording of paragraph (e) of that subsection is unusually wide.

Freedom of Association

FREEDOM OF ASSOCIATION

the complainant and any representative of the union an opportunity
of being heard may, if he considers that a breach of the rules has
been committed, make such Order for remedying the breach as he
thinks just under the circumstances. Such an Order is binding and
conclusive, and no appeal against it is possible ; on being recorded
in the County Court (in Scotland the Sheriff Court) it may be enforced
as if it had been an Order of such Court.
The political objects to which the above restrictions apply are
" the expenditure of money —
(a) On the payment of any expenses incurred either directly or
indirectly by a candidate or prospective candidate for election to
Parliament or to any public office, before, during, or after the election
in connection with his candidature or election ; or
(b) On the holding of any meeting or the distribution of any
literature or documents in support of any such candidate or prospective candidate ; or
(c) On the maintenance of any person who is a Member of
Parliament or who holds a public office ; or
(d) In connection with the registration of electors or the selection
of a candidate for Parliament or any public office ; or
(e) On the holding of political meetings of any kind, or on the
distribution of political literature or political documents of any kind,
unless the main purpose of the meetings or of the distribution of the
literature or documents is the furtherance, of statutory objects within
the meaning of this Act " (see above).
The expression " public office " is defined as meaning " the office
of member of any county, county borough, district, or parish council,
or board of guardians, or of any public body who have power to raise
money, either directly or indirectly, by means of a rate ".
The ballot with regard to the pursuance of political objects must
be taken in accordance with the rules of the union, and such rules
must be submitted to and receive the approval of the Registrar of
Friendly Societies, whether the union is registered or not. The
Registrar is not to grant his approval unless he is satisfied that every
member has an equal right, and, if reasonably possible^ a fair opportunity of voting, and that the secrecy of the ballot is properly secured.
If the Registrar is satisfied, and certifies that the rules for the
purposes of a ballot under the Act, or rules made for other purposes

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of the Act which require the Registrar's approval (i.e. rules providing
for the constitution of a separate political fund, for the exemption
of members who object to paying the political levy, and for the freedom
from victimisation of members who so object), have been approved
by the majority of members of the union voting for the purpose, or by
a majority of delegates of the union voting at a meeting called for the
purpose, those rules are to have effect whether they were adopted in
accordance with the rules of the union for making or altering rules,
or not — section 4.
The Act further provides that a member of a trade union may
at any time give notice that he objects to contribute to the political
fund ; and that, on the adoption of a resolution of the union
approving the furtherance of political objects, notice must be given
to the members acquainting them that each member has a right to
exemption, and that a form of notice of objection can be obtained
either by application or by post from the head office or from any
branch office of the union, or from the office of the Registrar of
Friendly Societies. The rules providing for the giving of such notice
must receive the approval of the Registrar, " having regard in each
case to the existing practice and to the character of the union ".
A member, on giving the required notice of objection, is to be
exempt, so long as his notice is not withdrawn, from contributing to
the political fund, as from the first of January next after the notice
is given, or, where notice of objection is made within one month after
the notice has been given to members as provided above on the
adoption of a resolution approving the furtherance of political objects,
as from the date on which such notice of objection is given — section 5.
The Act also provides for the manner of giving effect to exemption
from the obligation to contribute to the political fund. This must
be done either by levying contributions to the political fund from the
members of the union, who are not exempt, by means of a separate
levy, or by relieving exempted members from the payment of the
whole or any part of any periodical contributions required from the
members towards the expenses of the union. In the latter case, the
rules must provide that the relief shall be given as far as possible to
all members who are exempt on the occasion of the same periodical
payment, and for enabling members to know as regards any such
periodical contribution whether or not it is intended in whole or in
part as a contribution to the political fund.

FREEDOM OF ASSOCIATION

§2. — Industrial Activities and Labour Disputes
CRIMINAL LAW
Special

Circumstances

I n certain special circumstances and cases, trade union activities
are especially restricted. Mention has already been made of the
prohibition of trade unions in the police force. Extraordinary legal
provision also exists applicable to breach of contract in certain cases,
to seamen, to cases of national emergency, and to riotous and seditious
meetings.
Breach

of Contract

in Certain

Cases

Breach of contract is not at common law a criminal offence, but
sections 4 a n d 5 of the Act of 1875 impose special penalties on breach
of contract of employment in cases where the offender knows or has
reasonable cause to believe that the probable consequences of his so
doing, either alone or in combination w i t h others, will be to deprive
t h e public of gas or water, to endanger h u m a n life, to cause serious
bodily injury or to expose valuable property to destruction or serious
injury.
T h e t e x t of these sections is as follows :
Where a person employed by a municipal authority or by any company
or contractor upon whom is imposed by Act of Parliament the duty, or
who have otherwise assumed the duty of supplying any city, borough,
town or place, or any part thereof, with gas or water, wilfully and
maliciously breaks a contract of service with that authority or company
or contractor, knowing or having reasonable cause to believe that the
probable consequences of his so doing, either alone or in company with
others, will be to deprive the inhabitants of that city, borough, town, place,
or part, wholly or to a great extent of their supply of gas or water, he
shall on conviction thereof by a Court of summary jurisdiction, or on
indictment . . . be liable either to pay a penalty not exceeding twenty
pounds or to be imprisoned for a term not exceeding three months, with
or without hard labour.
Every such municipal authority, company, or contractor as is mentioned in this section shall cause to be posted up, at the gasworks or
waterworks, as the case may be, belonging to such authority or company
or contractor, a printed copy of this section in some conspicuous place
where the same may be conveniently read by the persons employed, and
as often as such copy becomes defaced, obliterated, or destroyed, shall
cause it to be renewed with all reasonable despatch.
If any municipal authority or company or contractor make default in
complying with the provisions of this section in relation to such notice
as aforesaid, they or he shall incur on summary conviction a penalty not

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exceeding five pounds for every day during which such default continues,
and every person who unlawfully injures, defaces, or covers up any notice
so posted up as aforesaid in pursuance of this Act shall be liable on
summary conviction to a penalty not exceeding forty shillings.
Section 5. Where any person wilfully and maliciously breaks a
contract of service or hiring, knowing or having reasonable cause to
believe that the probable consequence of his so doing, either alone or in
combination with others, will be to endanger human life, or cause serious
bodily injury, or to expose valuable property whether real or personal to
destruction or serious injury, he shall on conviction thereof by a Court
of summary jurisdiction, or on indictment . . . be liable to pay a penalty,
not exceeding twent3' pounds, or to be imprisoned for a term not exceeding
three months, with or without hard labour.
A n offender under these sections is specially empowered to insist
upon a trial by indictment instead of a trial by a Court of s u m m a r y
jurisdiction.
Section 4 has been extended, by section 31 of the Electricity
(Supply) Act, 1919 *, to cover electrical undertakings.
Slesser says 2 in reference to these sections : " I have been
unable to find any case which turns upon either of these sections,
a n d , n o doubt, to-day their place would be adequately taken b y the
recent E m e r g e n c y Powers Act and the regulations made thereunder. "
Seamen
T h e 1875 A c t expressly does not apply to offences committed b y
seamen or apprentices to the sea service.
Section 236 of the Merchant Shipping Act, 1894, provides t h a t
if a person by any means whatever persuades or attempts to persuade
a seaman or apprentice t o neglect, or refuse to join, or proceed to sea
in, or to desert from, his ship, or otherwise to absent himself from
his d u t y , h e shall b e liable t o a fine not exceeding ¿ 1 0 for each
offence.
Section 225 of the same A c t enumerates various offences against
discipline, and provides for the infliction of appropriate penalties.
I n particular, a seaman w h o combines with any of the crew to disobey
lawful commands, or to neglect duty, or to impede the navigation
of the ship or the progress of the voyage, renders himself liable, under
this section, to imprisonment with or without hard labour for a period
not exceeding twelve weeks.

1
2

q and 10 Geo. V, c. 100.
The Law Relating to Trade Unions, p. 46.

54
National

FREEDOM OF ASSOCIATION

Emergency

Under the Emergency Powers Act, 1920, if it appears to the
Government that any action has been taken or is immediately
threatened by any persons or body of persons of such a nature and
on so extensive a scale as to be calculated, by interfering with the
supply and distribution of food, water, fuel or light, or with the
means of locomotion, to deprive the community, or any substantial
portion of the community, of the essentials of life, the Government
may, by a " proclamation of emergency " declare that a state of
emergency exists. No such proclamation may be in force for more
than one month, though a fresh proclamation may be issued before
the end of that period.
Where such a proclamation has been made, the occasion for it
must be communicated to Parliament ; and if Parliament is not
sitting and is not due to reassemble for five days or more, a proclamation must be issued for the meeting of Parliament within five
days.
So long as a proclamation of emergency is in force the Government
may make regulations, by Order in Council, for securing the essentials
of life to the community ; and such regulations may confer on a
Secretary of State or other persons acting on behalf of the Crown
such powers and duties as may be deemed necessary " for the
preservation of the peace, for securing and regulating the supply and
distribution of food, water, fuel, light, and other necessities, for
maintaining the means of transit or locomotion, and for any other
purposes essential to the public safety and the life of the community,
and may make such provisions incidental to the powers aforesaid as
may appear to His Majesty to be required for making the exercise of
those powers effective ".
It is provided, however, that nothing in the Act shall be construed
to authorise the making of any regulations imposing any form of
compulsory military service or " industrial conscription " (this last
phrase is not defined) ; and 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.
Regulations issued under the Act must be laid before Parliament
" as soon as may be after they are made ", and are not to continue in
force after the expiration of seven days from the time when they are
so laid unless a resolution is passed by both Houses of Parliament

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providing for their continuance. They may provide for the trial, by
Courts of Summary Jurisdiction, of persons guilty of offences against
them. The maximum penalty on conviction of such offences is fixed
at three months' imprisonment, with or without hard labour, or a
fine of one hundred pounds, or both, together with the forfeiture of
any goods or money " in respect of which the offence has been commi ttjed ". The regulations may not, however/ alter any existing
procedure in criminal cases, or confer any right to punish by fine or
imprisonment without trial.
Riot and Seditious

Meetings

Peaceful meetings for lawful purposes are not interfered with
by the law.
The Unlawful Societies Act, 1799, and the Seditious Meetings
Act, 1817 (see above, Chapter I ) , are still unrepealed, and
were referred to in two cases in recent years \ In Luby's Case
Mr. Justice Neville said that, though these statutes were not obsolete,
trade unions had been exonerated from their provisions by the
legislature.
Riots are, of course, not permitted. Under the Riot Act, 17141716 2, if any persons, to the number of twelve or more, are unlawfully, riotously and tumulruously assembled together, to the
disturbance of the public peace, they may be required by a justice
of the peace, sheriff, mayor, etc., to disperse, and failure to do so is
punishable as a felony. Under an Act of 1822 3 rioting is punishable
with hard labour.
General Circumstances
The normal activities of trade unions are not now subject to any
severe restriction under the criminal law. In general the ordinary
law relating to violence and threats of violence to person or property
applies to acts done by or on behalf of trade unions in much the same
way as to acts done otherwise. It is true that at common law acts
done or contemplated in combination may have a more criminal
character than if they were done by individuals, but the statutes of
1

Luby and Warwickshire Miners' Association (1912), 2 Ch. 371 ;
Parr2 v. Lancashire and Cheshire Miners' Federation (1913), 1 Ch. 366.
1 Geo I, Stat. 2, c. 5
s
3 Geo IV, c. 114.

FREEDOM OF ASSOCIATION

1871, 1875, and 1906 have done away with this distinction in the
case of acts arising out of trade disputes.
Under the Act of 1875 penalties are provided for certain acts of
intimidation and annoyance which would probably not all be criminal
but for this statute ; and breaches of contract of employment in
certain public services are also made criminal by the same Act.
Criminal Conspiracy
At common law an agreement or combination to commit a crime
is punishable as a crime — more severely, in many cases, than the
actual commission of the same crime by an individual. Moreover,
under certain circumstances, and within limits as to the precise
definition of which there is no general agreement among legal
authorities, a combination may amount to a criminal conspiracy even
though its objects are not in themselves criminal ; and between 1825
and 1875 trade unions were considerably harassed by the readiness
of the Courts to regard combinations for the coercion of other persons
as criminal conspiracies.
The doctrine that a combination may amount to a criminal
conspiracy merely on account of its objects being in restraint of trade
was widely held in the first half of the nineteenth century, and a
number of decisions against trade unions were based on it. By 1870,
however, the contrary opinion had generally prevailed ', and section 2
of the Act of 1871 definitely disposed of the question by declaring
that " the purposes of any trade union shall not, by reason merely
that they are in restraint of trade, be deemed to be unlawful, so as to
render any member of such trade union liable to criminal prosecution
for conspiracy or otherwise ".
The taint of conspiracy has been removed from agreements for
coercive purposes (so long as a trade dispute exists) by the Acts of
1875 and 1906. Under section 3 of the former Act, " an agreement
or combination by two or more persons to do or procure to be done
any act in contemplation or furtherance of a trade dispute is not
indictable as a conspiracy if such act committed by one person would
not be punishable as a crime ". A " trade dispute " is defined by
section 5 (3) of the Trade Disputes Act, 1906, as meaning "any disput«
between employers and workmen, or between workmen and workmen,
1

As in, e.g., R. v. Stainer (1870), L.R. 1, C.C.R. 230.

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which is connected with the employment or non-employment or the
terms of employment, or with the conditions of labour, of any
person "; and the expression " w o r k m e n " as m e a n i n g " all persons
employed in trade or industry, whether or not in the employment of
the employer with whom a trade dispute arises ".
Section 3 of the 1875 Act confers i m m u n i t y only upon conspiracies
at common law, and not upon conspiracies punishable under any
statute. It explicitly does not affect the law relating to riot, unlawful
assembly, breach of the peace, or sedition, or any offence against t h e
State or the Sovereign. I t would confer no i m m u n i t y on acts done or
contemplated in violation of any regulation issued under the
Emergency Powers Act 1920 (see above). No regulation issued
under this Act, however, may 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.
A crime, for the purposes of this section of the 1875 Act, m e a n s
" an offence punishable on indictment ', or an offence which is
punishable on summary conviction 2, and for the commission of which
the offender is liable, under t h e statute m a k i n g the offence punishable,
to be imprisoned either absolutely or at the discretion of the Court
as a n alternative for some other form of punishment ".
Even when a combination is directed to acts which definitely
are criminal, but punishable only on s u m m a r y conviction (and not
indictable), the same section provides that a person convicted of such
combination and sentenced to imprisonment shall not be punished
b y imprisonment exceeding three m o n t h s , or such longer time, if
a n y , as may have been prescribed by the statute for the p u n i s h m e n t
of such a crime when committed by a single person.
Intimidation

and

Annoyance

^7*-

U n d e r section 7 of the Act of 1875 —
" Every person who, with a view to compel/other person to abstain
from doing or to do any act which such other person has a legal right to do
or abstain from doing, wrongfully and without legal authoritv —

1
i.e. a more serious crime, which must be tried with a jury by a
higher Court.
'•' i.e. a minor criminal offence, punishable by the local courts of
summary jurisdiction (Justices of the Peace).

FREEDOM OF ASSOCIATION

(i) Uses violence to or intimidates such other person or his wife or
children, or injures his property ; or
(2) Persistently follows such other person about from place to place ;
or
(3) Hides any tools, clothes, or other property owned or used by
such other person, or deprives him of or hinders him in the use
thereof ; or
(4) Watches or besets the house or other place where such other
person resides, or works, or carries on business, or happens to
be, or the approach to such house or place ; or,
(5) Follows such other person with two or more other persons in a
disorderly manner in or through any street or road,
shall, on conviction therefor by a Court of summary jurisdiction, or on
indictment . . . be liable either to pay a penalty not exceeding twenty
pounds, or to be imprisoned for a term not exceeding three months, with
or without hard labour.
Section 2 (1) of the T r a d e Disputes Act, 1906, provides that —
It shall be lawful for one or more persons acting on their own behalf
or on behalf of a trade union or of an individual employer or firm in
contemplation or furtherance of a trade dispute, to attend at or near a
house or place where a person resides or works or carries on business or
happens to be, if they so attend merely for the purpose of peacefully
obtaining or communicating information or of peacefully persuading anv
person to work or abstain from working.
T h e wording of both these sections is clear, and does not seem
to call for much comment. I t should be noted that the acts defined
in the 1875 Act (some of which would probably not be offences at
all apart from the statute) must be done r< wilfully a n d without legal
authority " and must have as their object the compelling of some
other person t o abstain from doing or to do some act which he has
a legal right to do or abstain from doing.
Intimidation,
to become unlawful, m u s t be at least such as would
justify a magistrate in binding over the intimidator to keep the peace
towards t h e person intimidated ' and personal violence m u s t be
threatened *. I t is not intimidation to threaten an employer that
workmen will be told to cease work, without using violence.
" Picketing ", as such, is not a criminal offence at common law.
Molestation and obstruction were made offences under t h e Combination of W o r k m e n Act, 1825 (v. above, ch. 1) ; " peaceful persuasion "
was excepted from the operation of the 1825 Act by the Molestation

553-

Gibson v. Lawson

R. v. McKeevit,

(1903), 2 L . R . 146.

(1891) 2 Q.B. 545 ; Curran v. Treleaven,

Liverpool Assizes. 16 Dec. 1890 ; R. v.

ibid.,

M'Carthy,

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of Workmen Act, 1859, but this exception was removed by the
Criminal I,aw Amendment Act, 1871, nor was it restored by the Act
of 1875. Thus section 2 (1) of the Trade Disputes Act, 1906, virtually
revives the Act of 1859, but only in respect of peaceful picketing done
" in contemplation or furtherance of a trade dispute ".
Where the picketing exceeds the amount of peaceful persuasion
allowed by the 1906 Act, or where it is not done " in contemplation
or furtherance of a trade dispute ", it is still a criminal offence under
the Act of 1875.
The exemption conferred by the 1906 Act does not, of course,
authorise the entry of a man's house against his will ; nor, apparently,
does it authorise offences against the Highways Acts — e.g. against
section 72 of the Highways Act, 1835 ', which provides that " if any
person . . . . shall in any way wilfully obstruct the free passage
of any . . . . highway
every person so offending . . . . shall
for each and every such offence forfeit-and pay any sum not exceeding
forty shillings ".
It does not appear that persons who distribute handbills or carry
placards without authorisation can be prosecuted under, e.g. section 9
of the Metropolitan Streets Act, 1867 2, which makes punishable such
distribution or carrying without the approval of the Commissioner
of Police only if it is done " by way of advertisement ".
An offender under the 1875 Act is specially empowered to insist
upon a trial by indictment (i.e. with judge and jury) instead of trial
by a Court of Summary Jurisdiction.
Breach of Contract
Breach of contract is not at common law a criminal offence, but,
as already stated, sections 4 and 5 of the Act of 1875 impose special
penalties on breach of contract of employment in cases where the
offender knows or has reasonable cause to believe that the probable
consequences of his so doing, either alone or in combination with
others, will be to deprive the public of gas or water, to endanger
human life, to cause serious bodily injury or to expose valuable
property to destruction or serious injury.

1
2

5 and 6 W. IV, c. 50.
30 and 31 Vict., c. 134, s. 9.

FREEDOM OF ASSOCIATION

Civil. L,AW

Liability for Breach of Contract
The legal position with regard to the internal agreements, or
rules, of trade unions, has already been described. The collective agreements of trade unions with outside persons or associations are enforceable in the same way as any other lawful
contracts, except in so far as their enforcement is restricted by
section 4 (5) of the Trade Union Act of 1871, which renders impossible the direct enforcement of, or recovery of, damages for the breach
of " any agreement made between one tra3e union and another ".
This clause renders unenforceable almost any agreement between a
trade union of men and a trade union of masters.
Liability for Tort
Non-Liability

of Trade Unions

Under section 4 of the Trade Disputes Act, 1906, a trade union
cannot be sued either in its own name or by means of a " representative
action " in respect of any tortious act alleged to have been committed
by or on behalf of the trade union ; nor can the trustees of the union
be sued, so as to recover damages out of the union's property, in
respect of any tortious act committed by or on behalf of the union
in contemplation or furtherance of a trade dispute. Where there is
no trade dispute in existence or under contemplation, the trustees can
apparently still be sued (see above).
Liability of Individuals
In general an act done for the purposes of a trade dispute or of
a trade union involves the same liability as an act done for any other
purpose. The best-known and best-defined categories of wrongful
conduct, violence, or damage to the person, trespass or damage to
land and goods, libel and slander, false imprisonment, fraud, etc.,
involve the same liability whether or not these torts are committed
for a trade union or in connection with a trade dispute.
The normal activities of trade unions do not, however, regularly
involve the commission of such obvious and generally recognised torts
as these ; but, inasmuch as they necessarily and constantly imply

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some transgression of the rights of individuals to work as they will,
or to trade as they will, under the limitations imposed by observance
of the law, they come into conflict with the common law at a point
where the law itself is in an extremely uncertain and indefinite state.
Workmen have now a recognised right in combination to seek to
improve or maintain their conditions of labour ; at the same time
every individual, whether workman or master, has a right, within
limits not very clearly defined, to carry on his legitimate trade or
calling. These two rights frequently conflict, and as there is no
authoritative and generally accepted definition of the limits of
" lawful " interference, the extent to which trade unions are legally
entitled at common law to pursue activities which involve the coercion
of others cannot be stated with any certainty.
This much at least is certain, that the various interpretations
placed by the Courts on " unlawful interference " have generally
tended severely to restrict trade union activities ; and certain
clauses were inserted in the Trade Disputes Act, 1906, with a view
to protecting such activities from too narrow a reading of the common
law. The clauses in question must here be quoted, for their wording
helps to explain the difficulties with which trade unions were faced
before the passing of the Act, and from which the Act itself has not
altogether freed them. The relevant sections are as follows :
1. The following paragraph shall be added as a new paragraph after
the first paragraph: of section 3 of the Conspiracy and Protection of
Property Act, 1875
" 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. "
(The paragraph of the 1875 Act to which the above is added runs :
" An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade
dispute ' shall not be indictable as a conspiracy if such act committed
by one person would not be punishable as a crime ". Thus the 1906
Act gives the same relief at civil law as the 1875 Act at criminal law.)
3. An act done by a person in contemplation or furtherance of a trade
dispute shall not be actionable on the ground only that it induces some
1

The words " between employers and workmen ", which qualified
" trade dispute " in the original Act, were repealed by the Act of 1906
(see below).

FREEDOM OF ASSOCIATION

other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or
with the right of some other person to dispose of his capital or his labour
as he wills.
5.(3) In this Act and in the Conspiracy and Protection of Property
Act, 1875, the expression " trade dispute " means any dispute between
employers and workmen, or between workmen and workmen, which
is connected with the employment or non-employment or the terms
of the employment, or with the conditions of labour, of any
person, and the expression " workmen " means all persons employed in trade or industry, whether or not in the employment of the
employer with whom a trade dispute arises ; and, in section 3 of the
last-mentioned Act, the words " between employers and workmen " shall
be repealed.
It will be as well to begin the consideration of the common law
on coercion, intimidation and interference for trade purposes by
recalling the more usual forms which trade union activities in this
direction take.
(1) The most simple case is where employees bring pressure, by
strike action, or by threatening a strike, or by other means,
on their own employer for purposes connected directly or
indirectly with their own conditions of labour.
(2) Employees may bring pressure on an employer to dismiss
some other employee or employees who are obnoxious to
them (e.g. because they refuse to join a particular trade
union ).
(3) The employees of an employer, A, may indirectly bring
pressure on another employer, B, by refusing to handle on
A's behalf goods coming from B.
Under one of these heads most trade disputes may be grouped,
however greatly the particular circumstances may vary in each case
(for instance, the action may be spontaneous or may be directed and
inspired by the officers of the trade union ; a breach of contract may
or may not be involved ; threats amounting to violence may or may
not be employed, etc., etc.).
The first question that arises is, " how far, if at all, does the fact
of combination in itself constitute a ground for action? " The law
as to criminal conspiracy is now fairly certain ; it seems to be
generally accepted that such conspiracy consists " in the agreement
of two or more to do an unlawful act or to do a lawful act by unlawful
means 1 ". The distinction between end and means is, indeed,
1

Per Willes J., in Mulcahy v. Reg. (1868), L.R., 3 H.L. 317.

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redundant; criminal conspiracy consists in an agreement to do
something that is in itself unlawful, and it is the agreement that
constitutes the criminal act. Moreover, any person injured by a crime
has a right to bring an action for damages ; consequently any person
injured by a criminal conspiracy, as defined above, may bring and
win a civil action for damages.
Under section 3 of the Conspiracy and Protection of Property
Act, 1875, an agreement to do any act " in contemplation or furtherance of a trade dispute " cannot be indicted as a conspiracy if
the act, if committed by one person, would not be punishable as a
crime. That is to say, an agreement to commit a tort, which would
otherwise be liable to be considered a criminal conspiracy as being
an agreement to commit an unlawful act, is no longer, to the extent
of the immunity conferred by the 1875 Act, so liable. What is the
effect of this section on the civil side? The House of Lords has
definitely decided * that the civil remedy is unaffected by the removal
of criminal liability, and that parties to an agreement which, but for
the 1875 Act, would be a criminal conspiracy, are liable to a civil
action for damages resulting from the agreement.
It is obvious, however, that the right to bring a civil action for
conspiracy where the conspiracy consists in an agreement to commit
acts which if done without agreement would be unlawful has nò
practical significance. " The plaintiff must show that the conspiracy
was to injure his rights, and that those rights had been injured. He
has, in fact, to carry his case as far as if there were no conspiracy at
all. The fact of there having been a conspiracy did not increase his
right of action in the least, though it did not diminish i t a . " The
civil action for conspiracy is thus an empty form, surviving from a
time when conspiracy consisted not in the agreement to commit any
unlawful act, but in a combination to bring a false accusation of
treason or felony.
Some of the dicta in the case of Quinn v. Leathern went much
further, however, than the reassertion of this empty right. For
instance, Lord Macnaghten said :
Does a conspiracy to injure resulting in damage give rise to civil
liability ? It seems to me that there is authority for that proposition,
and that it is founded on good sense . . . . That a conspiracy to injure
— an oppressive combination — differs widely from an invasion of civil
rights by a single individual cannot be doubted. . . . A man may resist
1
3

In Quinn v. Leathern (1901), A.C. 495.
Per Lord Esher in Saloman v. Warner (1891), 7 T.L.R. 485.

FREEDOM OF ASSOCIATION

without much ditficulty the wrongful act of an individual. He would
probably have at least the moral support of his friends and neighbours ;
but it is a very different thing when one man has to defend himself
against many combined to do him wrong.
lyord Brampton said :
It has often been debated whether, assuming the existence of a
conspiracy to do a wrongful and harmful act towards another, and to
carry it out by a number of overt acts no one of which taken singly and
alone would, if done by an individual acting alone and apart from any
conspiracy, constitute a cause of action, such acts would become unlawful
or actionable if done by the conspirators acting jointly or severally in the
pursuance of their conspiracy, and if by those acts substantial damage
was caused to the person against whom the conspiracy was directed ; my
own opinion is that they would. In dealing with the question it must be
borne in mind that conspiracy to do harm to another is from the moment
of its formation unlawful and criminal, though not actionable unless
damage is the result.
Thus it is affirmed on high authority that a criminal conspiracy
to injure is an offence known to the law, although the injury if done
by an individual would not be actionable, and that, even though
criminal proceedings may, according to the circumstances, be prevented by the operation of the 1875 Act, nevertheless a person injured
by such a conspiracy can bring an action for damage. Round this
doctrine a vigorous controversy has raged ; on the whole, the better
opinion seems to be opposed to it, and Sir Frederick Pollock considers
that the English Courts are not committed to it \ It is obvious that
its strict application by the Courts would have crippled the trade
unions in their industrial activities, since it would cover any effective
pressure for trade purposes. The Royal Commission appointed in
1903 " to enquire into the subject of trade disputes and trade
combinations and as to the law affecting them, and to report on the
law applicable to the same and the effect of any modifications thereof "
devoted particular attention to the issues raised by the case of Quinti
v. Leathern, and four out of five of the Commissioners agreed in
recommending that the relief on the criminal side embodied in the
first paragraph of section 3 of the Act of 1875 should be extended by
enactment to cover civil liability. Section 1 of the Trades Disputes
Act, quoted above, gives effect to their recommendation. It is to be
noted, however, that the immunity only applies where a trade dispute
is contemplated or already in existence.
It remains to consider how far interference and intimidation for
trade purposes are lawful irrespective of the element of combination.
1

Law of Torts. 10th ed.,'pp. 334-343.

GREAT BRITAIN

In the first place it must be remarked that there is no unanimous
agreement as to whether there exists a prima facie right not to be
molested. Sir Frederick Pollock (Law of Torts, ioth edition, pp. 23,
341, 342) thinks that any act which is designed to cause and does
cause damage to another involves liability whether or not the damage
be in respect of trade or employment, unless the act can be justified
by reason of some " just cause or excuse ". Geldart, on the
other hand, holds that . " theite is no English decision in
favour of such a view, and the dictum quoted by Sir Frederick
from a judgment of Lord Justice Bowen {.Skinner v. Shew (1893),
I Ch. 413, 422] was unnecessary to the decision, which was, as the
learned writer says, " in very special matter and on the construction
of a statute ". Mr. Arthur Cohen, one of the members of the Royal
Commission on Trade Disputes and Trade Combinations, argues in
the Commission's report against the existence of any such rule. " It
is . . . . impossible ", he says, " since the decision in Allen v. Flood 1
to maintain that such a principle is recognised in our existing legal
system ; for it would be evidently inconsistent with the legal proposition which, to use Lord Lindley's words, was so fully and authoritatively established by that case ; and which his Lordship stated
in the following words : ' An act otherwise lawful although harmful
does not become actionable by being done from a bad motive and
with intent to annoy or harm another ' 2 . "
Nor is there general agreement on the narrower question, whether
the deliberate causing of damage to another by interfering with his
" trade, business, or employment ", or with his right " to dispose of
his capital or his labour as he will " without " just cause or excuse "
is actionable. In favour of the affirmative answer the observations
of Lord Justice Romer, in the case of Giblan v. National Amalgamated
Labourers' Union of Great Britain and Ireland ' may be quoted, to
the following effect :
If a person, who, by virtue of his position or influence, has power
to carry out his design, sets himself to the task of preventing and succeeds
in preventing a man from obtaining or holding employment in his calling,
to his injury, by threats or special influence upon the man's employers,
or would-be employers, and the design was to carry out some spite against
the man, or had for its object to compel him to pay a debt (as in that
particular case) or any similar object not directly connected with the acts
against the man, then that person is liable to the man for the damage
consequent!}' suffered.
1
2
3

(1808) A . C . 1.
Report (1906, Cd. 2825), p. 30.
(1903) 2 K.B. 600.

Freedom of Association

FREEDOM OF ASSOCIATION

The tendency of the English Courts to view unfavourably acts " in
restraint of trade " is well known, and many opinions similar to that
of Lord Justice Romer might be quoted. On the other hand, the
notion that interference with trade or employment, apart from the
use of means that are in themselves illegal, is actionable, was expressly
repudiated by the House of Lords in the case of Allen v. Flood.
Lord Davey, for instance, in his judgment said :
The right which a man has to pursue his trade or calling is qualified
by the equal right of others to do the same, and compete with him, though
to his damage . . . A man has no right to be employed by any particular
employer and has no right to any particular employment if it depends
on the will of another.
Lord James of Hereford said :
It seems somewhat contrary to commonsense that an interference
which is rightful when applied to general subjects becomes wrongful
when a trade or business is subjected to it.
Whatever may be the correct view with regard to prima facie
liability for interference with another, it is not disputed that there is
no liability if the existence of a " just cause or excuse " can be proved.
What constitutes such justification must be decided in accordance
with the circumstances of each particular case, and no general rules
have been authoritatively laid down on the matter, with the single
exception that since the decision in Mogul Steamship Company v.
McGregor '• commercial competition has been recognised as a just
cause or excuse. (In the Mogul case a number of shipowners combined to prevent their agents from acting for other shipowners in
competition with them. The principle involved in this decision has
not, generally speaking, been extended by the Courts to cover the
trade interests of working men.) The judge frequently asks the jury
to say whether the defendants acted primarily with the intention
(a) of injuring the plaintiffs, or (b) of advancing their own legitimate
trade interests.
The jury have to find an answer, and this answer can hardly fail to
be unfavourable. Not to speak of their probably not including in their
number any working men, nor to impute to them the common bias of
assuming all strikers to be disturbers of industry and insurgents against
lawful authority, nor to suppose that in matters of political economy they
are prejudiced in favour of the theory of individualism and opposed to
that of collective action, the jury will have presented to them the picture
of strikers angry and excited, and of the loss and distress which are the

i (1892), A.C. 25.

GREAT BRITAIN

visible and immediate consequence of a strike and have been intentionally
caused by the strikers ; and when the question is thus put to them, it
would be strange indeed if they did not attribute the intentional acts of
the strikers rather to a desire to inflict these evils than to the hope of
advantages to be obtained if the strike is successful — advantages unseen,
remote, and a matter of indifference to the jury '.
These statements might in detail be contested, still more so in
view of the time which has elapsed since they were made, but there
is no doubt of the reality of the tendency to which they refer.
A p a r t from such illegality as may or may not inhere in effective
and unjustified interference in the business or employment of another,
there are certain means which, if they are employed, render such
interference unlawful and destroy any possibility of justification.
T h e motive with which the acts are done is immaterial 2, except for
the purpose of establishing justification ; but the use of threats or
violence m a y constitute a n element of illegality, even, apparently (as
regards t h r e a t s ) , where the thing threatened would not in itself be
actionable *. Picketing, to the extent that it is a criminal offence (see
above), creates a civil liability if damage is caused.
The
publication of black lists has in the past been held to be illegal,
b u t it is apparently no longer so considered*.
The
inducing
of a breach of contract without " just cause or excuse " is i l l e g a l s ,
b u t the justification required in this case is not the same as in the
case of interference and intimidation ; the person pleading a justification would need to show the existence not merely of a n interest,
b u t of some moral or social d u t y deemed sufficient b y the Court 6 .
T h e above tentative statement of the common law with regard
to tortious acts committed by trade unions or in connection with trade
disputes must, in view of the disagreement of t h e most eminent
authorities, be accepted with reserve. I n any case, the position is
considerably simplified by the immunity conferred in sections 1 and
3 of the T r a d e Disputes Act. T h e effect of section 1 with regard t o
acts done in combination is described above ; section 3 confers
exemption from liability for " interference with the trade, business or
employment of some other person, or with the right of some other
1
Report by Sir Godfrey LUSHINGTON, in the Report of the Royal
Commission on Trade Disputes and Trade Combinations, 1906, p. 88.
2
Per Lord Watson in Allen v. Flood.
3
Per Lord Loreburn in Conway v. Wade (1909), A.C. 506.
4
Ware and de Freville v. Motor Trades Association (1921), 37 T.L.R.
5
Lumley v. Gye (1853), 2 E. and B. 216.
• Cf. South Wales Miners' Federation v. Glamorgan Coal Co. (1905),
A.C. 239.

FREEDOM OF ASSOCIATION

person to dispose of his capital or his labour as he wills, " and for
inducing some other person to break a contract of employment ; but
only, it should be noticed, so long as no other illegality is alleged,
and so long as the acts in question are done " in contemplation or
furtherance of a trade dispute ". If there is no trade dispute either
impending or in existence, or if unlawful means are employed, the
immunity dissapears.
The statutory definition of a " trade dispute " is quoted above.
The words " in contemplation or furtherance " have been held by
the Courts to mean that a dispute must be imminent or existing, and
not merely subjective and present to the mind as a possibility. They
do not cover the case of a person who interferes with the intention,
if he does not get his way, of bringing about a dispute l.
Whether a trade, dispute exists or not is a question of fact to be
decided in each particular case a . In the so-called general strike that
occurred in Great Britain in 1926, it was held that the general strike
itself was not a trade dispute s , presumably upon the grounds that
the general calling out of the workers was not a dispute between
employers and workmen, but was an attempt by the combination of
trade unions to exert pressure on the Government, and to substitute
the will of this combination for the will of Parliament. As, however,
the case was one of an ex parte application and was therefore not
argued by counsel before the judge, and as moreover the decision
was given on the breach of the union's rules, the authority of the
judge's opinion on the question whether a trade dispute existed has
been contested \

1
1

Conway v. Wade (1909), A.C. 506.
White v. Riley, 1921, 1 Ch. 1.
* National Sailors' and Firemen's Union v. Reed, 1926, 1 Ch. 536.
* A. I/. GOODHART : The Legality of the General Strike in Englana.

CONCLUSION

The British statutes affecting the right of association contain no
reference to any " right " or " freedom " whether for the individual
or for the association. I t has probably never been unlawful in Great
Britain to combine for a lawful object. In so far, however, as the
objects of trade unions might be deemed to operate in " restraint of
trade ", they were at common law unlawful until the Trade Union
Act, 1871, expressly provided that the purposes of a trade union should
not, by reason merely that they were in restraint of trade, be unlawful so as to render members liable to criminal prosecution for
conspiracy or so as to render void or voidable any agreement or trust.
The " right of association " thus granted is therefore of a strictly
negative character and involves no definite legal or philosophical
doctrine of " liberty ".
As the foregoing pages have amply shown, the English law
relating to trade unions is intricate in the extreme. This is for the
most part due to the fact that the problems raised by the trade union
movement in Great Britain have been dealt with piecemeal, as from
time to time they became acute. Acts have been passed by Parliament,
and a body of case law built upon them. When the decisions of the
Courts have led to a position which, for one reason or another,
was held untenable, amending Acts have been passed to meet the
difficulty.
The composite body of legislation and judicial decisions that has
thus grown up and still continues to grow, while obscure in many of
its details, is sufficiently clear in its main features. Expressed in
very general terms, these main features are as follows :
There is complete freedom to combine for all persons in private
employment and in most branches of the Government service above
the age of 16 years. By the Act of 1871 trade unions are freed from
the taint of illegality arising out of the fact that their purposes
and/for or activities may be in restraint of trade. By the same statute
the Courts are precluded, generally speaking, from dealing with the

FREEDOM OF ASSOCIATION

internal affairs of a union. By the Conspiracy and Protection- of
Property Act, 1875, and * n e Trade Disputes Act, 1906, a trade union
is rendered practically immune from legal action for conspiracy either
under the criminal or under the civil law. By the Trade Disputes
Act, 1906, a trade union is exempted from liability to damages for
any tortious act done in contemplation or furtherance of a trade
dispute. By the same Act and under the same circumstances peaceful
picketing is permitted, but under the Act of 1875 and certain other
Acts cases of intimidation, trespass or obstruction on the part of trade
unionists may be punishable. Lastly, by the Trade Union Act of
1913, a trade union, if the members so wish, may devote part of its
funds to political purposes, although any individual may elect to be
exempted from such contribution.
This brief summary, it should be repeated, is extremely general
and only indicates very approximately the position of trade unions
vis-à-vis the law. Moreover, while trade union law in Great Britain
can hardly be described as being in a state of flux, numerous amendments are continually being put forward, particularly in regard to
political funds and picketing. Such proposed amendments have been
especially numerous since the so-called general strike of 1926. While
it is impossible to foretell to what extent these proposals will receive
legislative sanction, the possibility of important changes being thus
effected, as also of new interpretations being placed by the Courts
on the various doctrines and statutes already in existence,, is one that
requires to be constantly borne in mind.

BIBLIOGRAPHY

HISTORY O P COMBINATIONS

W. CUNNINGHAM : The Growth of English
3 Vols. Cambridge, 1915-1919.
S. and B. W E B B : The History
F. W. GALTON : The Tailoring

Industry

and Commerce.

of Trade Unionism. London, 1920.
Trade.

London, 1923.

LEGAL ASPECTS O F COMBINATION

Report of the Royal Commission
Combinations. Cd. 2825, 1906.

on Trade

Disputes

J. B. MATTHEWS and H. M. A D L E R : The Law Relating

and
to

Trade

Restraint

of Trade. London, 1907.
H. A. SMITH : The Law of Associations.

Oxford, 1914.

H . H. SOHLOESSER and W. SMITH CLARK : The Legal

Position

Trade Unions. London, 1912.
H. H . SLESSER and C. BAKER : Trade Union Law. London, 1921.
H. H . SLESSER : The Law Relating

to Trade Unions. London, 1921.

Sir F . POLLOCK : The Law of Torts. London, 1923 (12th ed.).
R. S. W R I G H T : The Law of Criminal Conspiracies.
A. L. GOODHART : The Legality
Cambridge, 1927.

London, 1873.

of the General Strike in

England.

LAW REPORTS QUOTED, W I T H ABBREVIATIONS

A.C.

Law Reports, Appeal Cases.

C. and K.

Carrington and Kirwan's Reports.

C. and P.

Carrington and Payne's Reports.

C.C.R.

Crown Cases Reserved.

Ch.

Law Reports, Chancery Division.

Ch.D.

Law Reports (New Series), Chancery Division.

Cox (C.C.)

Cox's Criminal Cases.

E. and B.

Ellis and Blackburn's Reports.

E. and E.

Ellis and Ellis' Reports.

H.L.

House of Lords Reports.

LR.

Irish Reports.

K.B.

Law Reports, King's Bench Division.

K.B.D.

Law Reports (New Series), King's Bench Division.

L.R.

Law Reports.

Mod.

Modern Reports (Leacn's)

Q.B.

Law Reports, Queen's Bench Division.

Q.B.D.

Law Reports (New Series), Queen's Bench Division.

Rettie

Rettie's Series of the Scotch Law Judiciary Reports.

S.C.

Court of Sessions Cases.

Sc.L.R.

Scottish Law Reporter

T.L-R.

Times Law Reports.

ADDENDUM
THE TRADE DISPUTES AND TRADE UNIONS ACT, 1927

§ 1. — Text of the Act*
An Act to declare and amend the law relating to trade disputes and
trade unions, to regulate the position of civil servants and persons
employed by public authorities in respect of membership of trade
unions and similar organisations, to extend section five of the
Conspiracy and Protection of Property Act, 1875, and for other
purposes connected with the purposes aforesaid. 17 and 18 Geo,
V, c. 22. Dated 29 July 1927.
i. ( i ) It is hereby declared—
(a) that any strike is illegal if it—
(i) has any object other than or in addition to the
furtherance of a trade dispute within the trade or
industry in which the strikers are engaged ; and
(ii) is a strike designed or calculated to coerce the
Government either directly or by inflicting hardship
upon the community ; and
(b) that any lock-out is illegal if it—
(i) has any object other than or in addition to the furtherance of a trade dispute within the trade or industry in
which the employers locking-out are engaged ; and
(ii) is a lock-out designed or calculated to coerce the
Government either directly or by inflicting hardship
upon the community :
and it is further declared that it is illegal to commence, or continue,
or to apply any sums in furtherance or support of, any such illegal
strike or lock-out.
For the purposes of the foregoing provisions—
(a) a trade dispute shall not be deemed to be within a trade or
industry unless it is a dispute between employers and
workmen, or between workmen and workmen, in that trade
or industry, which is connected with the employment or
non-employment or the terms of the employment, or with

i INTERNATIONAL L A E O ™

OFFICE : Legislative

Series

1917. G. B. 3.

FREEDOM OF ASSOCIATION

the conditions of labour, of persons in that trade or
industry ; and
(b) without prejudice to the generality of the expression " trade
or industry " workmen shall be deemed to be within the same
trade or industry if their wages or conditions of employment
are determined in accordance with the conclusions of the
same joint industrial council, conciliation board or other
similar body, or in accordance with agreements made with
the same employer or group of employers.
(2) If any person declares, instigates, incites others to take part
in or otherwise acts in furtherance of a strike or lock-out, declared
by this Act to be illegal, he shall be liable on summary conviction to
a fine not exceeding ten pounds or to imprisonment for a term not
exceeding three months, or on conviction on indictment to imprisonment for a term not exceeding two years :
Provided that no person shall be deemed to have committed an
offence under this section or at common law by reason only of his
having ceased work or refused to continue to work or to accept
employment.
(3) Where any person is charged before any court with an
offence under this section, no further proceedings in respect thereof
shall be taken against him without the consent of the AttorneyGeneral except such as the court may think necessary by remand
(whether in custody or on bail) or otherwise to secure the safe custody
of the person charged, but this subsection shall not apply to Scotland,
or to any prosecution instituted by or on behalf of the Director of
Public Prosecutions.
(4) The provisions of the Trade Disputes Act, 1906 *, shall not,
nor shall the second proviso to subsection (1) of section two of the
Emergency Powers Act, 1920 z, apply to any act done in contemplation or furtherance of a strike or lock-out which is by this Act
declared to be illegal, and any such act shall not be deemed for the
purposes of any enactment to be done in contemplation or furtherance of a trade dispute :
Provided that no person shall be deemed to have committed an
offence under any regulations made under the Emergency Powers
Act, 1920, by reason only of his having ceased work or having refused
to continue to work or to accept employment.
2. (1) No person refusing to take part or to continue to take part
in any strike or lock-out which is by this Act declared to be illegal,
shall be, by reason of such refusal or by reason .of any action taken
by him under this section, subject to expulsion from any trade union
or society, or to any fine or penalty, or to deprivation of any right
or benefit to which he or his legal personal representatives would
otherwise be entitled, or liable to be placed in any respect either
directly or indirectly under any disability or at any disadvantage as
compared with other members of the union or society, anything to
the contrary in the rules of a trade union or society notwithstanding.
• 6 Edw. VII, c. 47; Bulletin of the International
P. 17.
' to and 11 Geo. V, c. 55.

Labour Office (Basle). 1906, vol. I,

GREAT BRITAIN

(2) No provisions of the Trade Union Acts, 1871 to 1917, limiting
the proceedings which may be entertained by any court, and nothing
in the rules of a trade union or society requiring the settlement of
disputes in any manner shall apply to any proceeding for enforcing
any right or exemption secured by this section, and in any such proceeding the court may, in lieu of ordering a person who has been
expelled from membership of a trade union or society to be restored
to membership, order that he be paid out of the funds of the trade
union or society such sum by way of compensation or damages as the
court thinks just.
(3) As respects any strike or lock-out before the passing of this
Act but since the first day of May, nineteen hundred and twentysix, which, according to the law as declared by this Act, was illegal,
this section shall have effect as if it had been in operation when the
strike or lock-out took place.
3. (1) It is hereby declared that it is unlawful for one or more
persons (whether acting on their own behalf or on behalf of a trade
union or of an individual employer or firm, and notwithstanding
that they may be acting in contemplation or furtherance of a trade
dispute) to attend at or near a house or place where a person resides
or works or carries on business or happens to be, for the purpose of
obtaining or communicating information or of persuading or inducing
any person to work or to abstain from working, if they so attend in
such numbers or otherwise in such manner as to be calculated to
intimidate any person in that house or place, or to obstruct the
approach thereto or egress therefrom, or to lead to a breach of the
peace ; and attending at or near any house or place in such numbers
or in such manner as is by this subsection declared to be unlawful
shall be deemed to be a watching or besetting of that house or place
within the meaning of section seven of the Conspiracy and Protection of Property Act, 1875 '.
(2) In this section the expression " to intimidate " means to
cause in the mind of a person a reasonable apprehension of injury to
him or to any member of his family or to any of his dependants or
of violence or damage to any person or property, and the expression
" injury " includes injury to a person in respect of his business,
occupation, employment or other source of income, and includes any
actionable wrong.
(3) In section seven of the Conspiracy and Protection of Property Act, 1875, the expression " intimidate " shall be construed as
having the same meaning as in this section.
(4) Notwithstanding anything in any Act, it shall not be lawful
for one or more persons, for the purpose of inducing any person to
work or to abstain from working, to watch or beset a house or place
where a person resides or the approach to such a house or place, and
any person who acts in contravention of this subsection shall be liable
on summary conviction to a fine not exceeding twenty pounds or to
imprisonment for a term not exceeding three months.
4. (1) It shall not be lawful to require any member of a trade
union to make any contribution to the political fund of a trade union
1 38 and 39 Vict., c. 86.

FREEDOM OF ASSOCIATION

unless he has at some time after the commencement of this Act and
before he is first after the thirty-first day of December, nineteen
hundred and twenty seven, required to make such a contribution
delivered at the head office or some branch office of the trade union,
notice in writing in the form set out in the First Schedule to this
Act of his willingness to contribute to that fund and has not withdrawn the notice in manner hereinafter provided ; and every member
of a trade union who has not delivered such a notice as aforesaid,
or who, having delivered such a notice, has withdrawn it iri manner
hereinafter provided, shall be deemed for the purposes of the Trade
Union Act, 1913 1, to be a member who is exempt from the obligation
to contribute to the political fund of the union, and references in that
Act to a member who is so exempt shall be construed accordingly :
Provided that, if at any time a member of a trade union who has
delivered such a notice as aforesaid gives notice of withdrawal
thereof, delivered at the head office or at any branch office of the
trade union he shall be deemed for the purposes of this subsection to
have withdrawn the notice as from the first day of January next
after the delivery of the notice of withdrawal.
For the purposes of this subsection, a notice may be delivered
personally or by any authorised agent and any notice shall be deemed
to have been delivered at the head or a branch office of a trade union
if it has been sent by post properly addressed to that office.
(2) All contributions to the political fund of a trade union from
members of the trade union who are liable to contribute to that fund
shall be levied and made separately from any contributions to the
other funds of the trade union and no assets of the trade union,
other than the amount raised by such a separate levy as aforesaid,
shall be carried to that fund, and no assets of a trade union other
than those forming part of the political fund shall be directly or indirectly applied or charged in furtherance of any political object to which
section three of the Trade Union Act, 1913, applies ; and any charge
in contravention of this subsection shall be void.
(3) All rules of a trade union made and approved in accordance
with the requirements of section three of the Trade Union Act, 1913,
shall be amended so as to conform to the requirements of this Act,
and as so amended shall be approved by the Registrar of Friendly
Societies (in this Act referred to as " the Registrar ") within six
months after the commencement of this Act or within such further
time as the Registrar may in special circumstances allow, and if the
rules of any trade union are not so amended and approved as aforesaid
they shall be deemed not to comply with the requirements of the
said section.
(4) Notwithstanding anything in this Act, until the thirty-first
day of December, nineteen" hundred and twenty-seven, it shall be
lawful to require any member of a trade union to contribute to the
political fund of the trade union as if this Act had not been passed.
(5) If the Registrar is satisfied, and certifies, that rules for the
purpose of complying with the provisions of this section, or for the
1 a and ¡ Geo. V, c. 30; Bulletin
vol. VIII, p. 296.

of Ihe International

Labour

Office (Basle), 1913,

GREAT BRITAIN

purposes of the Trade Union Act, 1913, as amended by this Act,
which require approval by the Registrar have been approved by a
majority of the members of a trade union voting for the purpose,
by the executive or other governing body of such a trade union,
or by a majority of delegates of such a trade union voting at a meeting
called for the purpose, the Registrar may approve those rules and
those rules shall thereupon have effect as rules of the union notwithstanding that the provisions of the rules of the union as to the
alteration of rules or the making of new rules have not been complied
with.
(6) Section sixteen of the Trade Union Act, 1871 ' (which
provides for the transmission to the Registrar of annual returns by
registered trade unions), shall apply to every unregistered trade union
so far as respects the receipts, funds, effects, expenditure, assets and
liabilities of the political fund thereof.
5. (1) Amongst the regulations as to the conditions of service
in His Majesty's civil establishments there shall be included regulations prohibiting established civil servants from being members,
delegates, or representatives of any organisation of which the primary
object is to influence or affect the remuneration and conditions of
employment of its members, unless the organisation is an organisation
of which the membership is confined to persons employed by or under
the Crown and is an organisation which complies with such provisions
as may be contained in the regulations for securing that it is in all
respects independent of, and not affiliated to, any such organisation
as aforesaid the membership of which is not confined to persons employed by or under the Crown or any federation comprising such
organisations, that its objects do not include political objects, and
that it is not associated directly or indirectly with any political party
or organisation :
Provided that the regulations made in compliance with the provisions of this section shall not prevent—
(a) any person who is at the commencement of this Act an
established civil servant from remaining a member of any
trade union or organisation not composed wholly or mainly
of persons employed by or under the Crown of which he had,
at the commencement of this Act, been a member for more
than six months, if under the rules thereof there had on
the fourth day of April, nineteen hundred and twentyseven, accrued or begun to accrue to him a right to any
future payment during incapacity, or by way of superannuation, or on the death of himself or his wife, or as provision
for his children ; or
(b) any person employed at the commencement of this Act by
or under the Crown who thereafter becomes an established
civil servant from remaining, so long as he is not appointed
to a position of supervision or management, a member of
any trade union or organisation, not composed wholly or
mainly of persons employed by or under the Crown, of
which he is a member at the date when he so becomes an
1 34 and 35 Vict., c. 31.

FREEDOM OF ASSOCIATION

established civil servant, if under the rules thereof there has
at that date accrued or begun to accrue, to him a right to
any future payment during incapacity, or by way of
superannuation, or on the death of himself or his wife, or
as provision for children ; or
(c) a person who in addition to being an established civil servant
is, apart from his service as such, also engaged in some
other employment or occupation from being a member,
delegate, or representative of any trade union or organisation, of which the primary object is to influence or affect
the remuneration or conditions of employment of persons
engaged in that employment or occupation.
(2) Subject as hereinafter provided, any established civil servant
who contravenes, the regulations made under this section shall be
disqualified for being a member of the Civil Service :
Provided that, in the case of a first offence, a civil servant shall
forthwith be warned by the head of his department, and the said
disqualification shall not take effect if within one month after such
warning the civil servant ceases to contravene the said regulations.
(3) In this section—
(a) the expression " established civil servant " means a person
serving in an established capacity in the permanent service
of the Crown, and includes any person who, having been
granted a certificate by the Civil Service Commissioners,
is serving a probationary period preliminary to establishment ; and
(6) the expression " conditions of employment " means in
relation to persons other than persons employed by or under
the Crown the conditions of employment of persons employed under a contract of service.
6. (1) It shall not be lawful for any local or other public
authority to make it a condition of the employment or continuance
in employment of any person that he shall or shall not be a member
of a trade union, or to impose any condition upon persons employed
by the authority whereby employees who are or who are not members
of a trade union are liable to be placed in any respect either directly
or indirectly under any disability or disadvantage as compared with
other employees.
(2) It shall not be lawful for any local or other public authority
to make it a condition of any contract made or proposed to be made
with the authority, or of the consideration or acceptance of any tender
in connection with such a contract, that any person to be employed
by any party to the contract shall or shall not be a member of a trade
union.
(3) Any condition imposed in contravention of this section shall
be void.
(4) There shall be added to section five of the Conspiracy, and
Protection of Property Act, 1875, the following provision, that is to
say :—
" If any person employed by a local or other public authority
" wilfully breaks a contract of service with that authority,
. " knowing or having reasonable cause to believe that the probable

GREAT BRITAIN

" consequence of his so doing, either alone or in combination
" with others will be to cause injury or danger or grave inconve" nience to the community, he shall be liable, on summary
" conviction, to a fine not exceeding ten pounds or to imprison" ment for a term not exceeding three months. "
7. Without prejudice to the right of any person having a
sufficient interest in the relief sought to sue or apply for an injunction
to restrain any application of the funds of a trade union in contravention of the provisions of this Act, an injunction restraining any
application of the funds of a trade union in contravention of the
provisions of section one of this Act may be granted at the suit or
upon the application of the Attorney-General.
In the application of this section to Scotland, there shall be substituted therein for references to an injunction references to an interdict, and for the reference to the Attorney-General a reference to
the Lord Advocate.
8. (1) This Act may be cited as the Trade Disputes and Trade
Unions Act, 1927, and shall be construed as one with the Trade
Union Acts, 1871 to 1917, and this Act and the Trade Union Acts,
1871 to 1917, may be cited together as the Trade Union Acts, 1871
to 1927.

(2) For the purposes of this Act—
(a) the expression " strike " means the cessation of work by a
body of persons employed in any trade or industry acting in
combination, or a concerted refusal, or a refusal under a
common understanding of any number of persons who are,
or have beeii so employed, to continue to work or to accept
employment ;
(b) the expression " lock-out " means the closing of a place of
employment or the suspension of work, or the refusal by an
employer to continue to employ any number of persons
employed by him in consequence of a dispute, done with
a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept
terms or conditions of or affecting employment ; and
(c) a strike or lock-out shall not be deemed to be calculated to
coerce the Government unless such coercion ought reasonably to be expected as a consequence thereof.
(3) This Act shall not extend to Northern Ireland, except that
the provisions of this Act relating to civil servants shall apply to
civil servants employed in Northern Ireland in the administration
of services with respect to which the Parliament of Northern Ireland
has not power to make laws.
(4) The enactments mentioned in the Second Schedule to this
Act are hereby repealed to the extent specified in the third column
of that Schedule.

FREEDOM OF ASSOCIATION

SCHEDULES
FIRST SCHEDULE (Section 4)
F O R M OF POLITICAL F U N D CONTRIBUTION

NOTICE

SECOND SCHEDULE (Section 8)
ENACTMENTS REPEALED
Session a n d
Chapter.
1 and 3 Geo. V,
c. 30.

Short

Title.

Trade Union Act,
1913.

Extent of Repeal.
In subsection (i) of section three
the words from • and for the
exemption ' to ' objects to contribute " ; subsection (a) of section
four; section five; section six; the
Schedule.

§ 2. — Presumed Effects of the Act
No authority whatsoever can be claimed for the following interpretation of the provisions of the Trade Disputes and Trade Unions
Act. Until cases have been brought before the Courts, and the Act
authoritatively interpreted, every individual must form his own
opinion as to the meaning of the various provisions.
RESTRICTIONS ON " GENERAL " AND " SYMPATHETIC " S T R I K E S
AND LOCK-OUTS

Disputes Covered by Section 1
The phrases " general strike " * and " sympathetic strike " are
not used in the Act. The Government's declared intention in this
section was to make a repetition of the general strike " of ig26
(a large-scale " sympathetic " strike in support of the miners) impossible. This historical fact may be borne in mind.
The first paragraph is declaratory ; that is to say, it declares
what was stated to be, in the opinion of the Government, the existing
law. It provides that a strike is illegal if it simultaneously fulfils
two conditions, i.e. (1) if it has an object other than or in addition
to the furtherance of a trade dispute within the trade or industry in
which the strikers are engaged, and (2) if it is a strike designed or
calculated to coerce the Government either directly or by inflicting
hardship upon the community.
Subsection (1) (a) explains what is meant by a trade dispute
within a trade or industry (the definition of " trade dispute " being
1
The text of section i in the original bill referred only to strikes. A Government
amendment subsequently placed lockouts on the same footing. It will be convenient, however, in dealing with this section, to speak of strikes, it being understood that t h e same
remarks apply (except where the sense makes it impossible) to lockouts, mutatis
mutandis.

GREAT BRITAIN

borrowed from the Trade Disputes Act, 1906), while subsection (1) (b)
provides for a particular case as to which doubt might otherwise
arise.
The words " designed " and " calculated " are not identical in
meaning. " Designed " presumably means " intended "; " calculated " is defined in section 8 (1) (c), and may be considered as
practically synonymous with " likely in fact " — i.e. it has no
reference to intention.
The following conclusions may tentatively be drawn as to the
extent of the illegality declared by this section :
(1) It covers some, but not all, sympathetic strikes. A strike
by workmen in support of other workmen within the same trade
or industry would, persumably not be held to be illegal, whatever
hardship it might inflict on the community. On the other hand
a strike by workmen in support of workmen employed in some
other trade or industry would presumably be held to be illegal
if the fact of their striking " ought reasonably to be expected "
to result in inflicting hardship on the community, and thereby in
coercing the goi'ernment.
(ii) It covers a primary strike, where the object of such a
strike exceeds the furtherance of s trade dispute within the trade
or industry and where the hardship inflicted on the community
is sufficient to coerce the government. It would presumably, for
instance, be held to cover a strike by the miners for the purpose
of securing nationalisation of the mines.
Opinions differ as to the extent, if any, to which section 1 alters
the existing law. Certain authorities hold, with Sir John.Simon,
that a " general " strike is in any case not a " trade dispute " within
the meaning of the Trade Disputes Act, 1006. Other authorities
maintain the contrary view, which has been very clearly set out by
Mr. A. L. Goodhart \ editor of The Law Quarterly Review.It is clear that a great deal will depend, for the purposes of the
practical application of this section, on the manner in which the
Courts assess (a) the objects of any particular strike and (b) the
effects of a strike on the community and the Government.
The definitions of " strike " and " lock-out " contained in
section 8 should be noted. If an employer locked out his employees
with the sole and direct object of coercing the Government, the lockout would apparently not fall within the definition, as it would not
be " done with a view to compelling . . . . persons, or to aid another
employer in compelling persons employed by him, to accept terms
or conditions of or affecting employment ". It could therefore not
be held illegal under the Act. On the other hand, of course, without
some such proviso it might be illegal under the Act for an employer
to suspend his business for purely economic reasons, to avoid carrying
on at a loss.
1 A. !.. GoonHART : The Legality
(See above, p. 68.1

Freeitoin of Association

of the General Strike in England,

Cnmbridee. 1927-

FREEDOM OF ASSOCIATION

The Consequences of Illegality
Criminal

Liability

The Act itself prescribes certain penalties which will be incurred
in the case of strikes held to be illegal under section i. These penalties are applicable only to any person who " declares, instigates,
incites others to take part in or otherwise acts in furtherance of "
such a strike. It may be noted that the maximum penalty — imprisonment for a term not exceeding two years — is the penalty
already inflicted at common law for participation in a " seditious
conspiracy ".
At the same time, apart from the penalties prescribed in the Act,
participation in or furtherance of an illegal strike would amount to
a criminal conspiracy at common law. The Act expressly provides,
however, that no person shall be deemed to have committed an
offence under section i or at common law " by reason only of his
having ceased work or refused to continue to work or to accept
employment ".
The object of subsection (3), the effect of which is that no
proceedings shall be taken under the section without the fiat of the
Attorney-General, issued either directly or through the Director of
Public Prosecutions, is, in the words of the Attorney-General himself \ " to ensure that the provisions of the Act shall not be oppressively invoked in an unsuitable case, and that the machinery of the
Act shall only be put into motion if the case is one which a responsible officer of the Crown regards as justifying a prosecution ".
Similar clauses are contained in a number of other Acts. The
language used in this case is copied from the Explosive Substances
Act, 1883.
On the other hand subsection (4) makes it possible to take
summary proceedings, under certain circumstances, without the fiat
of the Attorney-General. In virtue of this subsection, if a state of
" emergency " were proclaimed under the Emergency Powers Act,
1920 a , it would be possible for the Government to issue regulations
without regard to the proviso contained in that Act that no such
regulation 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. Offences against such regulations would
involve liability to criminal penalties, on conviction by a Court of
Summary Jurisdiction. Subsection (4) provides, however, that " no
person shall be deemed to have committed an offence under any
regulations made under the Emergency Powers Act, 1920, by reason
only of his having ceased work or having refused to continue work
or to accept employment ".
Thus criminal penalties in respect of strikes held to be illegal
under section 1 cannot be inflicted on account of the mere act of
withholding labour, whether the proceedings are taken in virtue of
the Act of 1927, with the consent of the Attorney-General, or in
virtue of the Emergency Powers Act, without such consent.
» Pnrliemtntary Debates, House of Commons, Tuesday 21 Jane, 1927, col. 1772.
s Cf. ahove pp. 54-55-

GREAT BRITAIN

The protection afforded by section 3 of the Conspiracy and
Protection of Property Act, 1875 \ a n d by section 2 (1) of the Trade
Disputes Act, 1906 2, is removed by subsection (4) in the case of
strikes held to be illegal under section 1.
Civil Liability
• The civil immunities conferred by the Trade Disputes Act,
IQ06 3, on trade unions and their agents are removed by subsection (4)
in respect of strikes held to be illegal under section 1. It may be
observed that whereas under the Act the Government maintains
control over criminal proceedings, and can prevent them from being
carried further than the exigencies of a particular situation may
appear to require, civil proceedings are naturally left to take their
course.
Procedure
Section 7 expressly empowers- the Attorney-General to apply
for an injunction to prevent the funds of a trade union from being
applied for the furtherance of a strike declared by section 1 to be
illegal. The Attorney-General has in any case power at common
law to apply for an injunction to restrain the execution of an illegal
act of a public nature provided that it is established that the act is
an illegal act and affects the public generally. Section 7 defines and
makes clearer the Attorney-General's rights in this respect in the
case of an illegal strike.
If proceedings were suitably accelerated it would be possible
for the Government, by applying for an injunction under section 7,
to obtain a decision, both from the High Court and from the Court
of Appeal, as to the legality of a strike, within the space of a few
days. An authoritative decision of the kind would guide the lower
courts in any subsequent proceedings which might be instituted under
section 1.
Protection of Non-Strikers
Section 2 affords special protection to persons who refuse to take
part in an illegal strike, and empowers the Courts to intervene on
their behalf notwithstanding the provisions of the Trade Union Act,
1871, which would otherwise in many cases protect the union *. The
clause Is made retrospective, so as to afford protection to trade
unionists who refused to support or take part in the strike of 1026.
RESTRICTION ON STRIKES BY EMPLOYEES OF LOCAL AND
O T H E R PUBLIC AUTHORITIES

Strikes in breach of contract by employees of local and other
public authorities are penalised, under certain circumstances, by
section 6 (4).
Section 5 of the Conspiracy and Protection of Property Act,
1875, to which this provision is added, is quoted above.
1
2
3
3

Cf. above p. 63.
Cf. above p. 58.
Cf. above, p. 60.
Cf. above, p. 60.

FREEDOM OF ASSOCIATION

INTIMIDATION AND PICKETING

Section 3 is to be read in conjunction with section 7 of the
Conspiracy and Protection of Property Act, 1875, and section 2 of
the Trade Disputes Act, igo6 \ The Government claimed in
subsection (1) to be defining the existing law, and the section is
therefore declaratory in form.
At the same time in subsections (2) and (3) a definition of
" intimidation " is provided, for the purposes both of this section
and of section 7 of the Act of 1875, which admittedly 2 goes beyond
thè previously accepted meaning of the term *. The definition of
the injury threatened includes, under subsection ( 1 ), " injury to a
person in respect of his business, occupation, employment or other
source of income, and . . . . any actionable wrong ". Thus intimidation for trade union purposes becomes under this section unlawful,
not merely if it involves a threat of personal violence, but if it involves
a threat of any injury in respect of which an action might be brought
— e.g. slander, libel, etc.
Subsection (4) reasserts the prohibition of " watching and
besetting " a person's residence contained in section 7 of the Act
of 1875. Its object appears to be to prevent section 2 (1). of the Trade
Disputes Act, which authorises attendance at or near a person's
residence for purposes of peaceful persuasion, from diminishing the
force of that prohibition.
PURSUIT OF POLITICAL OBJECTS

Section 4 substitutes " contracting-in " for " contractirig-out "
as regards contributions by individual members of trade unions to
the political fund of their union *.
Provision is made for the strict separation of political from other
funds of a trade union, and unregistered trade unions are brought
under the supervision of the Registrar of Friendly Societies in respect
of their political funds.
T R A D E UNIONS IN THE C I V I L SERVICE

- Section 5 prohibits the pursuit of political objects by trade unions
of civil servants, and the affiliation of such unions to outside bodies
of an industrial or political character.
Penalties are prescribed in case of infringement of this provision.
PROHIBITION OF COMPULSORY T R A D E UNIONISM IN CERTAIN

CASES

Section 6 is designed to prevent local and other public authorities
from imposing compulsory membership or non-membership of a
trade union (a) upon their own employees or (b) upon the employees
of contractors.

i l Cf. above, pp. 57-58.
3
Cf., e.g., Parliamentary
(Sir W. Joynson Hicks).
3
Cf. above, p. 58.
4
Sf. above, p. 49.

Debates,

House of Commons,

23 May 1927, Vols. 1700-1701.

IRISH FREE STATE
According to information supplied to the International Labour
Office by the Irish Free State, the position in the matter of freedom
of association in Ireland is similar to that in Great Britain previous
to the establishment of the Irish Free State.
The present position of trade unions in the Irish Free State is
accordingly the only point on which information is necessary.
The Present Position of Trade Unions
EMPLOYERS' ORGANISATIONS

The employers' organisations are, in the majority of cases, small
bodies, each operating in only one town. For instance, in the building industry there is a separate employers' association in almost
every town, but there is no central body similar to the Federation
of Building Trade Employers in Great Britain. The membership of
these local organisations is small and they have practically no influence outside their respective areas. There are, however, national
organisations in certain trades, e.g. in the flour milling, woollen
industries, etc., but they are comparatively few.
WORKERS' ORGANISATIONS

In the case of workers' organisations the majority of skilled
workers were, prior to the year 1920, organised in trade unions with
headquarters in Great Britain. Since 1920, for various reasons, new
organisations have been started in the Irish Free State, with the
result that a large number of workers who had previously belonged
to the British unions transferred to the Irish unions. This was particularly the case in the engineering trades, and the new organisation
in these trades, namely the Irish Engineering Industrial Union, now
caters for a large proportion of the skilled workers in the engineering

FREEDOM OF ASSOCIATION

trade in the Free State. The British unions are, however, still
operating in the Free State, and in a few cases, particularly in the
coachbuilding and cabinetmaking industries, the workers are
practically all organised in the British unions.
The Irish Transport and General Workers' Union, which caters
for unskilled workers, is the largest workers' organisation in the Irish
Free State. There are two other unions catering for unskilled
workers, viz. the Workers' Union of Ireland and the Amalgamated
Transport and General Workers' Union.
In addition to the unions referred to above, there are many local
workers' organisations in the Free State which merely cater for
workers in the various towns.
The Irish Labour Party and Trade Union Congress is the central
trade union organisation. Unions with a membership of approximately 120,000 (i Jan. 1926) are affiliated to it, the chief of these
being the Irish Transport and General Workers' Union with 40,000
members, the National Union of Railwaymen with over 14,000
members, and the Irish National Teachers' Organisation with 12,000
members. Trades and Workers' Councils with a membership of 94,000
are also affiliated, the most important being the Dublin Workers'
Council (50,000), Belfast and District (15,000) and Limerick
(10,00o)1.

Irish Labour Party and Trade Union Congress : Unions and Councils affiliated. Thirty-second Annual Delegate Congress, August 1926.

FRANCE
CHAPTER
HISTORY

AND

THE

TRADE
TRADE

UNION

LEGISLATION

UNION

MOVEMENT

§ 1. History prior to 1884
The 125 years which have elapsed since the French Revolutionhave seen the development of an ardent and continuous struggle for
freedom of association in general and for freedom of occupational
association in particular.
At the outset, the situation was clear. It consisted of a formal
and penal prohibition of all corporate groups and later of all forms of
association, whatever their objects or their composition. At this
period the objects of legislation were twofold. It was feared that in
some new form the recently abolished craftsmen's guilds might
be reconstituted, and that under the protecting emblem of economic
or occupational interests, plots might be hatched against the new
political constitution. The object was also, in accordance with the
then universally prevailing economic doctrines of the physiocrats, to
lower the cost of living as far as possible while leaving free play to
unlimited competition not only on the labour market, but on the
actual market, itself.
Hence, in 1791, we find a complete prohibition of all groups
and even of any temporary understanding in connection with
occupational interests. This prohibition was shortly afterwards to
be extended to all associations of whatever kind. Including a
period of slackness in the observation of the law, and of de facto
tolerance of combination, more than 75 years were to elapse before
association ceased to be a penal delict (the Act of 25 May 1884),
and more than 95 years before industrial associations became finally

FREEDOM OF ASSOCIATION

legal (Act of 21 March 1884). Finally, some 17 years later, an Act
of wide scope was promulgated (1 July 1901) proclaiming general
freedom of association.
It therefore becomes of importance to determine to what extent
industrial associations may take advantage of the provisions of this
general Act, and to what extent they come under the provisions of
the special legislation on industrial associations which was revised
later in important details by the Act of 12 March 1920.
T H E PERIOD OF ABSOLUTE PROHIBITION

The Act abolishing the trade guilds is dated 2-17 March 1791.
It states :
Section 2. — As from 1 April next, the offices . . . . of the associations
of masters and trade guilds and all their professional privileges are
abolished.
Section 3. — Any citizen will be at liberty to carry on any profession
or craft which seems good to him, after he has provided himself with a
licence and paid the price thereof.
A Decree of 21 October-19 November 1790 had granted all
citizens the right of forming " free societies ", provided that these
observed the laws of the land. The natural deduction from this
Decree was that the former masters and journeymen, artisans and
business men were free to group themselves as they wished and to
take concerted measures for the defence of their collective rights.
The persons concerned made this deduction from the. Decree :
Influenced by economic or occupational grievances or else harbouring political intentions, they constituted themselves into groups. A
certain amount of unrest resulted from this, and even local troubles
which soon aroused the attention of the authorities. By a Decree
of 23 April 1791 the Paris Commune prohibited any concerted
arrangement between craftsmen with a view to imposing given tariffs
or to obtaining certain advantages. Since, however, disputes
between employers and workers and traders and consumers tended
to become general, the Constituent Assembly took a hand in the
matter. On 14 June 1791 it adopted the eight sections of the famous
Le Chapelier Bill, which constitutes the most radical abolition of
all forms of industrial association that can be imagined.
This Act, which was fundamental in the new system of labour
regulation, was enforced in France, where it remained in operation

FRANCE

until 1884, but its principles were also adopted in the majority of
continental countries. I t is therefore of importance to summarise
the main principles appealed to by its author when supporting his
proposal.
" 1 am going to submit to you ", said Le Chapelier from the Tribune
of the Constituent Assembly on 14 June 1791 l, " a contradiction of the
constitutional principle which abolishes guilds . . . . Various persons have
endeavoured to recreate the abolished guilds by forming assemblies of arts
. and crafts in which presidents, secretaries, aldermen and other officers
have been appointed. The object of these assemblies, which are increasing throughout the Kingdom, and have already established contact
between themselves, is to compel the employers of labour, the former
masters, to increase the remuneration for the day's labour and to prevent
workers and private individuals who employ workers in their workshops
to conclude agreements between themselves . . . The workers ", he
added, are forced to leave their shops even when they are content with
the wages they are receiving. The object is to empty the shops and
already certain shops have protested against it and various disturbances
have arisen. "
Nor did Le Chapelier confine himself to demanding t h e
maintenance of the ban on guilds on the pretext of securing respect
for constitutional principles and safeguarding public order ; h e
wished to strike equally hard at the so-called m u t u a l benefit societies.
" The bodies in question ", he said, " have the avowed object of
procuring relief for workers in the same occupation who fall sick or
become unemployed. But let there be no mistake about this. It is for
the nation and for public officials on its behalf to supply work to those
who need it for their livelihood and to succour the sick . . . . It should
not be permissible for citizens in certain occupations to meet together in
defence of their pretended common interests. There must be no more
guilds in the State, but only the individual interest of each citizen and
the general interest. No one shall be allowed to arouse in any citizen
any kind of intermediate interest and to separate him from the public weal
through the medium of corporate interests. "
T h e author of the Act would t h u s appear t o proclaim the d u t y
of the State to prevent the growth of private agreements and, as an
indispensable counterpoise to the denial of any notion of collective
occupational activity, the citizen's right to work. On the other
h a n d , Le Chapelier condemns any interference by the State in the
relations between citizen and citizen :
" Free agreements between individual and individual ", he says,
" must fix the day's work for each worker. It is for the worker to observe
the agreement which he has made with his employer. "
1

Moniteur,

15 June 1791.

FREEDOM OF ASSOCIATION

On the conclusion of his speech, the Assembly voted the Le
Chapelier Bill without discussion. The essential provisions of the
Bill are as follows :
Section i. — Since the abolition of all forms of corporations in the
same grade or occupation is one of the bases of the constitution, it is
forbidden to recreate such corporations under any pretext whatever.
Section 2. — Citizens of the same grade or occupation, and workers or
journeymen in any art or craft, may not, when assembled together, appoint a president, a secretary or an alderman, keep a register, enact
decisions or establish any regulations concerning what they call their
common interests.
Section 3. — Administrative and municipal bodies are forbidden to
receive any address or petition from any grade or occupation or to make
any reply to such address or petition, and they are required to declare null
and void any decisions which may be taken by such bodies and to take
special precautions that no action is taken on them and that they are in
no way enforced.
The penalties provided in the event of the violation of this
prohibition, at least so far as workers were concerned, were rigorous
in the extreme. They involved a fine of 500 livres for the authors
or instigators of agreements the object of which was to establish any
fixed price for work, together with deprivation of civil rights for one
year and exclusion from public appointments of any kind (sections
4 and 5).
Section 7 provided for the criminal prosecution of persons who,
by threats or violence, prejudiced the freedom of labour and industry.
The regulations enacted under the Consulate and the Empire
(namely, the Act of 22 April 1803, the fundamental provisions of
which were amplified in sections 414-416 of the Penal Code)
strengthened this prohibitive legislation and increased the severity
of its provisions in respect to workers' coalitions.
Section 414 of the Penal Code, which prohibited employers'
combinations, punished any combination between persons who
engaged workers for the purpose of unjustly and abusively securing a
reduction of wages which was followed by an attempt or application
of measures to put such reduction into practice. The penalty was
imprisonment for six days to one month, and a fine of from 200 to
3,000 francs.
Section 415 prohibiting workers' combinations punished any
combination on the part of the workers for the purpose of causing
a simultaneous stoppage of work, prohibiting work in a workshop,
preventing workers from going thither, or from remaining there

FRANCK

before or after certain hours, and in general any combination for the
purpose of suspending, preventing or increasing the cost of work.
The penalty was imprisonment of from i to 3 months and the
leaders were liable to imprisonment of from 2 to 5 years. These
two texts clearly show a special, apprehension felt by the authorities
towards wage-earners' associations. Whereas employers' combinations were punished with imprisonment of from six days to one month
only, and with fines of from 200 to 3,000 francs, and that only on
condition that the combination was followed by some attempt to act,
workers' combinations were in all cases punished with one to three
months' imprisonment and in the case of leaders with imprisonment
of from two to five years.
During the years immediately following . the Revolution,
however, the abolition of freedom of association affected only
artisans, masters and workers. Other citizens could benefit by the
Decree of 20 October-19 November 1790. The political societies
and clubs afforded an inviolable sanctuary to the craft associations,
a sanctuary which was, however, only temporary, as succeeding
governments extended the prohibition of association to all combinations of any kind whatsoever. Thus the Act of 7 Thermidor of the
Year V of the Republic (July 1798) declared illegal " the formation
of any association for dealing with political questions ". This Act
was a prelude to the provisions inserted by the Empire in the Penal
Code, section 291 of which makes " any association of more than
20 persons the object of which is to meet every day or on certain
specified days to deal with religous, literary, political or other
questions " dependent on authorisation from the Government.
These provisions of the Penal Code were to be definitely enshrined
in the Act of 10 April 1834 which required preliminary Government
authorisation for all associations " even when such associations are
divided into sections with a smaller number of members (i.e. smaller
than 20) and even when they do not meet every day or on certain
specified days ". The 1834 Act also stated that authorisation granted
by the Government might be cancelled at any moment.
Thus the extreme logical conclusion of the system is reached,
namely, the isolation of the individual vis-à-vis the State is completely
realised in all spheres, the economic, the political, and the intellectual.
* *

FREEDOM OF ASSOCIATION

Despite legislation, administrative prosecution, and legal repression, craftsmen, workers and employers alike, continued to form
associations openly or sub rosa.
In the early part of the nineteenth century there arose a number
of questions of a general economic and social bearing which required
more than an individual or separate solution. Thus it came about
that " parallel with the legal regime there was a de facto regime
which allowed industrial associations to take form and exist in spite
of prohibition until their legal consecration caused the terms of the
law to be changed to harmonise with actual facts " '.
The first militant employers' group was the Carpentry Association, which dates back to 1808 '. This organisation, which in its
structure resembled the occupational organisations of the present
day, subsequently underwent considerable changes as a result of
the successive affiliation of all the various branches of the building
trade. It was the founder of the first Federation of Industrial
Associations (Chambre syndicale) known under the name of the
Groupe de la Saint-Chapelle 3.
The existence of the Carpentry Association was formally recognised by the Government which, influenced by public or political
interests, compromised with the legislative restrictions. The year
1858 saw the foundation, on similar lines to the Saint-Chapelle
Groupe, of the National Union of Commerce and Industry, which by
1869 included 55 industrial associations representing industries other
than the building trade.
In addition to these main groups of a centralised character, a
certain number of independent industrial associations were formed,
especially in the Paris district. At first these organisations existed
side by side without any effort at amalgamation. But in 1859, in
order to co-ordinate their activities, the group of Industrial Associa4

Etienne VILLEY : L'organisation professionnelle des employeurs
dans l'industrie française, p. 8.
2
For the history of the workers' and employers' movement see
notably : PAUL-BONCOUR : Le fédéralisme économique ; JOUHAUX *. Le syndicalisme français, 1913 ; Le syndicalisme et la C.G.T., 1920 ; LEVASSEUR :
L'histoire des classes ouvrières en France ; Paul Louis : Histoire du
mouvement syndical (1789-1910) ; Le syndicalisme français (1906-1922) ;
Martin SAINT-LÉON : Histoire des corporations de métiers du syndicalisme contemporain ; Etienne VILLEY, op. cit.
* In 1848 this organisation included eleven trades connected with the
building industry.

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tions of Paris and the Seine Department was formed, this being
followed in 1867 by the foundation of the Central Committee of
Industrial Associations, which its promoters intended to be the
supreme inter-federal organisation of the French employers' associations.
The growth of the employers' associations during a period when
freedom of association was absolutely prohibited had revealed the
moderation, if not the tolerance, felt by the authorities towards the
employers' efforts at organisation, for there had not been any hesitation on the part of the Government to encourage the formation of
associations considered as likely supporters of its policy and actions.
Quite otherwise, however, was the attitude adopted towards the
workers' organisations. Statistics show that while legal penalties
were seldom imposed upon employers, workers' organisations,
including these of the most harmless character, were ruthlessly suppressed '.
It is not astonishing, in these circumstances, that the character
of the workers' movement was at its outset somewhat incoherent
and sporadic. But it was the changing economic situation, more than
the legal regime, which was at the bottom of the methods of organisation adopted by the early workers' societies. Side by side with the
journeymen's guilds formed prior to 1880, which had survived, but
which were constantly decreasing, were arising new forms of
workers' organisations such as mutual benefit societies, militant
associations and trade unions.
Mutual benefit societies correspond to the beginning of the era
of large-scale production. In the early decades, of the nineteenth
century there was a wide expansion in the growth of charitable
and mutual aid societies which covered, although to a very unequal
extent, a large number of trades. Apart from their intrinsic value
in promoting trade union solidarity, the mutual benefit societies
were a definite stage in the evolution of the workers' trade union
movement : Their effect was to unite individuals on an occupational
1
During the reign of Louis Phillippe the relative proportion of
prosecutions was as follows: one employers' association for eight workers',
40 per cent, of the employers being acquitted as against 5 per cent, of the
workers. The relative proportion of prosecutions under the Second
Empire'was approximately the same, but acquittals were not so unevenly
distributed, viz. 27 per cent, for employers and 17 per cent, for workers.
(Cf. Chas. GIDE : Le droit de grève, p. 12.)

FREEDOM OF ASSOCIATION

basis, to introduce discipline among their members, and to build up
the framework of future organisation. Limiting their aims to providing for misfortune, they were viewed with tolerance by the
authorities and the provisions of the Le Chapelier Act of the Penal
Code were but rarely applied to them.
The second phase in the development of the workers' movement
was the formation of militant organisations (résistances).
These
bodies came into existence as a result of the great fall in wages which
took place during the early years of the monarchy of July, and
which was a direct result of improvements in industrial machinery
and the superabundance of workers which was continually fed by
the great exodus from the rural districts. At the outset these
organisations were formed under the protection of the mutual benefit
societies which, on account of the influx of militant elements, were
forced, in addition to their mutual benefit work, to take measures
and even to organise active resistance for the maintenance of existing wage rates. Whereas, however, the mutual benefit societies had
been able to reckon on the goodwill of the authorities, the situation
was quite otherwise for the militant organisations which, displaying
far more strongly developed class tendencies, were subjected to rigorous prosecution. Further, the authorities, alarmed by the wide
expansion of the movement, began to suspect all associations of being
centres of revolt and included the charitable societies in their prosecution '.
The revolution of 1848 raised hopes for the definite removal of
obstacles to the development of freedom of association. These hopes
were fostered by several enactments of the provisional government,
namely the proclamation of the right to work and the following
foundation of national workshops and, later, by the proclamation
of freedom of association. " The provisional government ", stated
the official declaration of 27 February 1848, " fully recognises that
the workers must combine among themselves in order to enjoy the
fruits of their labour. " Another sign full of promise was the
constitution of the committee for the workers of Luxemburg, a sort
of occupational parliament which supported the principles of State
socialism and advocated subsidised co-operative societies.
1

Between 1848 and 1925 1,251 societies were prosecuted by the authorities. During this period the courts judged 7,148 persons, of whom 1,981
were acquitted, 63 condemned to over and 4,397 to under one year's
-imprisonment, while 701 were fined. Cf. OFFICE DU TRAVAIL, Les associations ouvrières professionnelles, 1899, t. I, "No. 27.

FRANCE

These hopes were, however, of short duration, and in the very
next year, the Constituent Assembly revoked its decision on freedom
of association by the Act of 27 November 1849. This Act, which
maintained in all its rigour the offence of coalition, had nevertheless
the merit of subjecting both the employers and the workers to the
same penalties (section 414, revised version). The Constituent
Assembly intended nevertheless to authorise association in the form
of co-operative societies and with a view to encouraging this movement it opened a credit of three million francs in its favour. This
naturally led to the aims of the working-class. movement of this
period being concentrated on expansion of co-operation. The mutual
benefit societies and militant organisations, which represented
permanent means of mutual assistance and defence, continued to
exist, but co-operation which seemed to lend itself to the attainment
of complete social emancipation by peaceful measures became of first
importance in the eyes of the workers. During the years 1848 and
1849 more than 600 demands for credit were made by workers'
associations, and numerous were the societies which desired to make
the experiment with their own resources. We cannot retrace here
the history of a movement which, although arousing so much
enthusiasm was bound to fail for several reasons, including the want
of financial resources, the inexperience of the workers' organisations
and the lack of interest on the part of the Government. With the
failure of the co-operative movement coincides the disintegration of
the other forms of workers' associations, hastened by the policy of
repression which became increasingly rigorous after the coup d'état
of 2 December 1851 \
But the need for combination created by changed economic
conditions was too deeply rooted in the minds of the masses for it to
be possible for the Government to refuse indefinitely to recognise it.
Thus it was that from 1854 onwards the former mutual benefit
societies and militant organisations are seen to reappear although
under inoffensive titles. The programme of these associations, which
at the outset was limited to certain definite demands, tended to
improve conditions of labour as a whole. At the same time, their
1
Under the new regime 1,144 societies were denounced between 1848
and 1864, when altogether 6,812 persons were implicated. Of these, 1,034
were acquitted, 80 condemned to over and 4,765 to under one year's
imprisonment, while 933 were fined. (Cf. OFFICE DU'TRAVAIL, Les associations ouvrières proiessioìineUes, 1899, *• !• P- 4°)

FREEDOM OF ASSOCIATION

character underwent a change and it was about this time that the
mutual benefit and militant organisations adopted the structure of
industrial associations which had a great resemblance to the presentday trade unions.
Faced with this new development of the industrial associations,
the Empire, which in it.s early days had adopted high-handed tactics,
showed more tolerance. In 1862 Napoleon III himself sent a workers'
delegation to the exhibition of London for the purpose of studying
,on the spot the powerful organisation built up by the English trade
unions: .The various reports drafted by the delegates on their return
all agreed on the necessity of abolishing the delict of combination.
This was a prelude to the wide legislative reforms which had already
matured in thought and in fact ; in thought because freedom of
association had already been demanded by the representatives of all
the different economic doctrines — the Liberals from the time of
Sismondi ; the Socialists with Saint-Simon and his disciples ;
Proudhon, Fourier, Louis Blanc, Cabet and Bûchez ; the Catholics
with Leroy, de Gérando, Villeneuve-Bargemont and a number of
others ; — in fact because the antagonism of the social classes grouped
together under their respective organisations naturally led to the
collective stoppage of work, which from that moment it became
prudent to legalise.
This remarkable change was effected by the Act of 25 May 1864.
ABOLITION OF T H E OFFENCE OF COMBINATION

According to section 414 of the Penal Code, as amended by the
Act of 25 November-i December 1849, combination, whether between
employers with a view to securing a reduction in wages or between
workers for the purpose of enforcing a stoppage of work in a workshop,
was, ipso facto, an offence for which the authors were liable to from
two to five years' imprisonment, and their accomplices from six days'
to three months' imprisonment and a fine of from 16 to 3,000 francs.
The Act of 25 May 1864 * reduces the scope of the offence to
molestation, violence, and intimidation, or fraudulent action calculated
to cause or maintain a combined stoppage of work with a view to
, obtaining an increase or reduction in wages (section 414 as amended).
1

Cf. infra, Commentary of sections 414 and 415 of the Penal Code :
" Limits set by Penal Lav* ", p. 171.

FRANCS

Besides this offence, the instigators of which were liable to imprisonment of from six days to three years and a fine of from 16 to
3,000 francs, should be noted (section 416 as amended) that of an
attempt to restrict the free exercise of labour and industry by means
of fines, prohibitions, proscriptions, and combined interdictions, an
offence punishable by imprisonment of from six days to three months
and a fine of from 16 to 3,000 francs.
What was the exact effect of this Act ? In amending the
Penal Code, it abolished the offence of a simple understanding with
a view to a stoppage of work. The strike, the concerted and collective stoppage of work, legally organised and unaccompanied by
violence or fraudulent action, ceased to be in itself an offence. In
a word, it became legal to do, together and by agreement, that which
might legally be done individually. This was the one direct
consequence of the Act, but a very important consequence at that.
It legalised temporary agreements between employers or between
workers, and this was, most naturally, to lead not only to an increase
in the number of such agreements, but also in the number of
permanent agreements, that is to say real industrial associations. In
fact, it had to be recognised that the arguments which had been
strong enough to lead to the abolition of the delict of combination
were also valid as a means to obtain the recognition of freedom of
industrial association.
Moreover, a number of other factors of a different character
arose one after another about this time, and these were to contribute
to strengthen the movement in favour of freedom of association. The
large universal exhibitions (London, 1863 ; Paris, 1867) enabled the
French delegates, workers and employers alike, to get into contact
with industrial circles, which already had many years' experience in
the practice of industrial association on a wide scale. Again, in the
economic domain the Societies Act of 1867 was to give a striking
demonstration of the power of unity and solidarity.
Thus it was that the Emperor decided to publish in the Moniteur
of 31 March 1868 official authorisation to organise industrial associations under certain specified conditions.
" The Government ", said the report of the Minister de Forcade la
Roquette, in answer to a memorandum of the workers of Paris which
compared the leniency shown towards the emplo\-ers' associations with the
severity with which they were treated, " does not intend to interfere in
the formation of industrial associations ; it will intervene only if the association, in contradiction to the principles laid down by the Constituent
Assembly, seeks to prejudice the free exercise of trade and industry,
Freedom of

Association

FREEDOM OF ASSOCIATION

or if they abandon their real aims to become illegal political organisations
of any form whatever. " '
This authorisation did not, however, have immediate effect.
The foundation of the International Association of Workers, which
had played an important part in events during the Commune, had
aroused a feeling of antagonism towards workers' organisations, and
the Act of 14 March 1872, known under the name of the International
Act, stated in its first section that " every association which aims
at provoking a stoppage of work, the abolition of the right of ownership, family and national duties, religion or the freedom of worship,
shall constitute, by the mere fact of its existence and ramifications
on French soil, a danger to public order ". But, with the arrival
in power of a Republican Ministry in 1877, the Government adopted
a definite policy of toleration, and even of protection towards
industrial associations.
Favoured by the new political regime, the movement spread
widely. By 1881 there were in Paris alone 130 employers' associations, with 15,000 members, and 150 workers' organisations, with
60,000 members, while 350 workers' organisations were in existence
in the provinces.
Again, the demands for legal recognition of the right to combine
for trade purposes were becoming ever more insistent. The workers'
congresses held at Paris in 1876, at Lyons in 1878, at Marseilles in
1879, at Le Havre in 1880, and at Rheims in 1881, all called for it in
a most energetic manner. Nor were the Socialist circles alone in
demanding, from 1875 onwards, the abrogation of the Le Chapelier
Act. The Catholic Congress of Rheims, the prime mover of the new
Doctrinal Christian Socialist movement, associated itself with this
claim, while the National Union of Commerce and Industry was at
the head of a similar campaign on behalf of the organised employers.
Faced by a general movement of this character, Parliamentary
circles entered into action. In 1878 Mr. Edouard Lockroy introduced
in the Chamber a Bill for the legal recognition of industrial associations, but the political circumstances of the moment prevented any
discussion on this Bill. In November 1880, however, Mr. Cazot,
Minister of Justice, laid before the Chamber a Government Bill on
the freedom of industrial association. The introductory memoran 1

Paul Louis : Le Mouvement syndical en France,

IJ8Ç-IÇIO,

p. 44.

FRANCE

dum ' to the Bill laid emphasis on the fact that a large number of
associations had come into existence, in spite of the Act of 1791, and
without causing any disastrous results. The memorandum went on
to say :
As experience has shown that members of the same trade may found
a free and permanent association for the study and defence of their common interests, without any danger resulting, we consider that it is in
the general interest to adjust an irregular situation and to abolish a legal
prohibition which has no longer any raison d'être.
The Bill was adopted on first reading at the Chamber of Deputies
on 9 June 1881, and, on certain amendments being introduced, by the
Senate on 31 July 1882, after having been defended on behalf of the
Government by Waldeck-Rousseau. Sent back to the Chamber,
the Bill gave rise to important debates, in which the most diametrically opposed social doctrines were upheld by speakers such as de Mun,
Frederic Passy, Lockroy, Martin Nadaud, Floquet, and Clemenceau.
None of these persons, however, opposed the Bill, which was again
submitted to the Senate on 28 July 1883, the final text being adopted
by that body on 23 February 1884 and by the Chamber of Deputies
on 13 March, ultimately becoming law on 21 March 1884.

§ 2. — The Position since 1884
RECOGNITION OF FREEDOM TO COMBINE FOR T R A D E PURPOSES

What was the spirit of the Act of 21 March 1884 " respecting
the foundation of industrial associations " ?
Some parties desired to use the new Act to set up industrial
organisations similar in character to the former trade corporations ;
these organisations were to include all factors engaged in production,
and to be based on a certain hierarchy of these factors. Others, on
the contrary, advocated the extension of legal recognition to workers'
and employers' associations founded as class organisations with
compulsory membership for all wage-earners in a given trade. Backed
by the power of these united and inclusive organisations, the workers,
" organised and disciplined, would be able to pit their strength
1
Martin SAINT-LÉON : Histoire des corporations de métiers, pp. 660
et seq.

FREEDOM OF ASSOCIATION

100

against that of separate or organised employers, without having to
reckon with the disastrous effects of desertion " l .
The Government, however, rejected all ideas of corporatism as
well as of compulsion, thereby allowing the principles of freedom to
prevail. By repealing the Le Chapelier Act and section 416 of the
Penal Code, the Act of 21 March 1884 completes the right to combine.
Section 416 of the Penal Code as amended by the Act of 25 May 1864,
had inflicted imprisonment of from six days to three months and a
fine of from 16 to 3,000 francs, or any one of these penalties, on all
workers, employers and contractors who, by means of fines, prohibitions, proscriptions or interdictions imposed as the result of combined
action, had in any way endeavoured to prevent the free exercise
of labour and industry. From 1864 onwards these provisions had
been subjected to much criticism. It had been pointed out that the
presence in the Penal Code of an offence thus defined rendered
impossible the organisation and the maintenance of associational
discipline, and completely paralysed any possibility of intervention
by the industrial associations in the labour market. It was, in fact,
equivalent to the re-introduction in another form of the offence' of
combination. By the abrogation of Article 416, concerted action by
the workers, even with the help of fines, proscriptions, prohibitions
and interdictions, was no longer a criminal offence 2 .
Nor did the legislation of 1884 confine itself to strengthening
the right to combine by legalising the means of coercion inseparable
from really effective action on the part of the associations. In
recognising the associations as permanent institutions for the defence
of occupational interests, and in granting them moral personality, it
went a step further. Herein lies the fundamental character of the
Act, namely, that the State granted recognition without imposing any
conditions regarding the formation or the working of the industrial
associations. In a circular addressed to the Prefects on 25 August
1884, Waldeck-Rousseau, author of the Act, described the Government's attitude towards the new Act in the following terms :
In removing all barriers to the industrial associations' right to
combine, the Act of 21 March 1884 has, in the same spirit of freedom,
abolished all preliminary authorisation, all arbitrary prohibitions, all
special formalities. . . . Were the duty of the .State confined exclusively
1
2

G. SCELLE : Le Droit ouvrier, pp. 49-52.
As regards civil responsibility for black listing, see infra, " Limits
set by Civil Law ", p. 179.

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ÎOI

to t h e strict supervision of the enforcement of the laws, your intervention
would doubtless be rarely required. . . . Your duty, however, is more
comprehensive, and you are expected to encourage the development of the
spirit of association, to stimulate it, to facilitate the generalisation of this
act of liberty, to make its practice as easy as possible, and to smooth out
the difficulties which will certainly arise from inexperience and want of
habit.
In investing t h e industrial associations w i t h these new liberties,
the Act of 1884 w a s in n o way meant t o weaken the principles of
freedom of labour and industry which h a d been proclaimed by t h e
Revolution. T h e recognition of their right t o exist was intended
to complete t h e right to work, not in t h e narrow fashion conceived
by t h e Revolution, but in all its phases, of which freedom of association is one of t h e most essential. T h e worker was free to make use
of this privilege or not, to join or t o abstain from joining a union,
to withdraw from it when he so desired, and to belong to t h e union
of his choice. N o limit was made t o t h e n u m b e r of associations,
which all had equal privileges. W h i l e excluding any Government
interference in t h e formation and w o r k i n g of t h e associations, this
conception also abolished any idea of legal monopoly on t h e p a r t of
the associations themselves. A l t h o u g h t h e association had as a n
institution of civil law, a certain representative character, it was not
the incarnation of a trade in abstracto, i.e. it h a d not t h e sole charge
of t h e occupational interests of t h e workers as a whole i n a n y
district, region, or for t h e whole country.
" It is possible ", wrote Waldeck-Rousseau, " t o conceive a different
system, namely, a Government which believes itself wiser than the people
itself. This, however, is a tyrannical conception in the scientific meaning
of t h e word. Such a conception does not imagine or attempt to make any
concessions towards labour. In former times it expressed itself by the
corporations. Such a system regulates everything, the number of corporations, the number of artisans, journeymen, apprentices, production,
manufacture, and processes of manufacture. But such a system is cast
all in one mould, everything holds together, but once a breach is made
the whole edifice collapses, and tyranny becomes helpless and disorganised. We have chosen the way to freedom. Let us have confidence in
our choice. " '.
T h i s liberal regime, which is t h e base of t h e Act of 1884, did
not, moreover, offer any obstacle to the future development of t h e
legal status of t h e organisations. I n t h e first place, t h e Acts of
1001 and 1920 have considerably broadened t h e original legal

WALDBOK-ROUSSEAU : Preface to PAUT.-BOXCOCR'S work

fédéralisme

économique.

011 : Lc

102

FREELOM OF ASSOCIATION

structure and extended the prerogatives of industrial associations.
Again, the evolution of jurisprudence, the theoretical study of
Bills and Acts ever increasing in number, has resulted, by defining
the legal capacities and powers of the associations, in increasing
their character as representatives of combined occupational interests
and in making them the official collaborators of the public authorities and administrative bodies in all questions of direct or indirect
interest to them. This new tendency is in itself a result of the
development of the employers' and workers' industrial movements,
the main features of which are briefly summarised below.
SURVEY OF THE DEVELOPMENT OF EMPLOYERS'
AND W O R K E R S ' ASSOCIATIONS

The employers' associations, which the Act of 1884 put on a
footing of absolute equality with the workers' trade unions, are not
all formed on the lines laid down by the Act. The reason for this
is that, the chief aims of the employers' associations being of a
commercial character, the defence of occupational interests and
organised opposition to the workers are of but secondary importance.
In practice, however, the line of demarcation between the two
functions is impossible to establish. It is more a question of
specialisation and distribution of duties in the one organisation than
a definitely established separation.
The period of legality of employers' associations would seem to
include three phases, a preparatory period (from 1884 to 1900), a
period of defensive tactics (from 1900 to the War), and a period of
action (from the War up to the present day) \ Prior to 1884 the
employers' associations were slowly filling their ranks, but the
movement, although systematic in appearance, was at that time far
from being in a position to take any definite action. Employers'
circles, which were then very independent, showed themselves
antagonistic to any form of organisation likely to curtail their freedom
of action. For this reason the leaders of the employers' movement,
the heads of industrial associations, contented themselves at the
outset with educating employers up to the idea by creating an
atmosphere of mutual confidence and by encouraging measures
calculated to promote useful but restricted co-operation between
industrial establishments. At the beginning: of the XXth century
1

Etienne VILLEY, op. cit., pp. 387 et seq.

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IO3

this had already been achieved and the second stage, that of the
collective organisation of defensive measures of various kinds was
begun.
In the first place measures were to be taken against the possible
results of the development of social legislation. In the course of
a few years Parliament had voted the Workmen's Compensation Act
(1898), the amendment of legislation on hygiene and safety in
industrial establishments (Act of 11 July 1903), the amendment of
legislation on the work of women and children, the Weekly Rest
Act of 13 July 1006, and the Workers' Pension Act (5 April 1910).
These enactments and a number of other Bills, especially that
relating to the shortening of the working day (Ten-Hour Day Act)
drew attention to the effect of legislative measures on conditions of
output and cost prices, and forced the employers to unite more
closely for the purpose of finding common measures of defence to
counter this tendency.
Measures had also to be taken against international competition.
On account of the ever increasing industrial specialisation resulting
from the concentration of industrial establishments, a phenomenon
more advanced in other countries than in Prance, the infiltration of
foreign goods through the national customs barriers was threatening
the interests of French manufacturers on their own markets. Realising that individual efforts were useless to cope with this state of
affairs, French employers thereupon adopted the idea of industrial
concentration and thereby further prepared the way for increased
industrial co-ordination.
Finally, it was essential to take measures of defence against the
workers' trade unions, the power of which was becoming more and
more formidable and which forced the employers to join forces and
unite their means of defence.
The combined effect of these various factors was to strengthen
the ranks of the primary employers' associations, the membership
of which doubled between 1900 and 1908, and to give more life and
force to the unions and federations of associations. A general plan
of organisation was established for each branch of production and
inter-trade agreements arose and prepared the way for an allinclusive concentration.
This expansion of the employers' associations was accompanied
by a distinction being made in the various functions of the organisations, this distinction being more than necessary on account of the

104

FREEDOM. OF ASSOCIATION

increasing number and complexity of the problems with which the
leaders of the movement were faced. Thus it was that a distinction
was made between the two main spheres of activity of the employers'
organisations, namely, the economic field, which often interested
only the heads of enterprises manufacturing a certain industrial
speciality in their quality of producers, and the field of social
questions which was of interest to employers' associations on the
whole in their capacity of employers.
The War introduced thè phase of action. During hostilities the
State had the monopoly of the markets ; being the sole client giving
orders it was in the position to insist on concentration. In order
to intensify production and to impart flexibility into the running of
the establishments it brought about the formation in each branch
of industry of powerful central organisations or syndicates which
linked up the individual establishments. State intervention was also
responsible for the creation of the Confédération générale de la
•production française, a centralising body for the whole of the French
employers' associations. The impetus given to the movement
continued after the War when the concentration of the organisations
was accompanied by a more definite specialisation of their various
functions. The activity of the groups developed and extended in
all directions. There is not a single question, whether it be
documentary or technical, fiscal or relating to customs tariffs,
economic or social, whether relating to the organisation of production
or concerted lock-outs, whether dealing with a common wages policy
or strike-breaking measures, which is not thoroughly studied by
the special departments of the organisations, or which does not
provide an opportunity for direct negotiations with the authorities.
Like all associations which have attained an advanced state of development, the employers' groups do not hesitate to take definite action ; they
are not content with defending themselves, they act, they are constructive. What thev aim at is official intervention in all branches of
economic and social life and their vitality now permits them to stand as
general representatives of industrial interests. In all important questions
of this kind they claim the right to be consulted or to take part in the
discussions according to circumstances. While awaiting wider and more
general recognition, their claims are meanwhile to receive great satisfaction so far as concerns their relations with the two government
departments of most interest to them, namely, the Ministry of Commerce
and Industry and the Ministry of Labour . . . . This stage of the
(employers') movement will most probably mark a turning point of
great importance in the development of industrial association if those
concerned adapt themselves to the new conditions.
These conditions are to be clearly observed in the development of

FRANCE

IO5

industrial association which up to the present had been based on the
principle that private interests must give way to collective interests of a
national character . . . . it is hardly too much to say that in economiic
matters, even as in politics, questions of an individual nature no longer
count when compared with the importance acquired by problems of a
national character " '.
T h i s brief summary of the employers' movement clearly shows
the general tendency to subordinate business interests of a purely
individual kind to collective interests. A survey of the workers'
movement from 1884 to the present day will allow us t o make a
similar deduction.
T h e Act of 1884 in legalising industrial associations merely
recognised a state of t h i n g s which dated back for many years.
Therefore the connection between the Act and trade union expansion
should not be over-estimated 2 . T h e origin of the workers' trade
union movement as it is understood to-day dates back to 1884. T h e
workers' congresses which from 1876 h a d met without legal authorisation in a n u m b e r of towns, had all expressed the desire for national
unity. I n these labour assizes the main principles of the programmes
which was to characterise their future action were laid down. U n d e r
the influence of the then preponderating socialist doctrines the aims
of the unions were amplified and defined by formulae of the greatest
simplicity. T h e Marseilles Congress of 1879, which witnessed the
triumph of the new ideas over t h e more moderate programme of the
friendly societies, marks the decisive t u r n i n g point in trade union
evolution.
I t is impossible in these pages to recount the vicissitudes of this
movement which, full-blooded and passionate, was extremely dogmatic at the outset, but became more practical and constructive as
it matured. I t will be sufficient to show how the working classes
succeeded in setting u p a solidly constructed central organisation,
and to indicate the main features of their plan of action.
T h e efforts at concentration, which also date back previous to
1884, were made on two lines, namely, inter-trade concentration on
a regional basis, a n d industrial concentration on a national basis.
T h e Employment

Exchanges,

Etienne V I L L E Y, op. cit.,

which

were

originally

official

p. 392.

A large majority of the workers' congress held at Lyons in 1886
voted against the new Act on Trade Associations.

IOÓ

FREEDOM OF ASSOCIATION

organisations ' but which soon freed themselves from the trammels
of authority, were the prime movers in regional concentration.
Being the meeting place and rallying point of the unions in the
same town and of the same province, the exchanges were the first
to establish useful contact between the members of the various
trades and they may consider themselves as being the champions of
a wider conception of trade unionism which extended beyond the
narrow confines of corporatism and taught the wage earners the idea
of class solidarity. As centres of propaganda their ramifications
penetrated to the dephts of the provinces, which otherwise would
have remained deaf to the appeal of distant central organisations.
Besides this militant work the exchanges carried out practical
schemes of the greatest value. Trade union institutions, such as
strike and unemployment funds, mutual benefit funds, employment
offices, workers' vocational schools and libraries, co-operative
societies and temporary relief measures, all of which must of necessity
be extremely restricted if left to isolated groups, may be greatly
developed when supported by the united resources of the whole trade
union movement and when united under a common administration.
To sum up, it may be said that employment exchanges were
the indispensable link between the primary bodies and the central
organisations, and on their federation in 1892 their influence on the
future of French trade unionism was to become preponderant a .
Parallel with the consolidation of regional concentration, steps
were taken to achieve national unity between the unions of the same
trade, and to create industrial and trade federations. Formed in
1886 under the auspices of the Workers' Socialist Party, the federations passed through the same intestine broils as the political parties
and their efficiency suffered accordingly. It was only on breaking
away from all outside influence and on uniting with the employment
exchanges that they acquired strength and stability.
At the outset the formation of national federations was based on
the principle of organisation by trades s , but it soon became evident
1
The Paris Employment Exchange organised under the auspices of
the municipal council dates back to 1887. The example of Paris was
followed shortly afterwards by the majority of the large provincial towns.
2
Cf. PELLOUTIF.R : Histoire des Bourses du travail.
5
As a general rule "workers of the same trade" is taken to mean
persons engaged in the manufacture of the same article, " workers in the
same industry" being those engaged in the working up of the same raw
materials.

FRANCE

107

that the principle of federation by industries which widened the sphere
of activity by generalising it, was more likely to result in complete
industrial concentration. Therefore, in spite of the difficulty of defining the scope of trade unions and limiting their mutual spheres of
activity, this latter form of organisation, repeatedly advocated by
trade union leaders, finally prevailed and has nowadays become the
criterion of federal unity.
Nevertheless the federations of employment exchanges —
. provincial unions of which were formed by the amalgamation of
various local unions in the same region — and industrial federations
were merely steps towards the realisation of complete unity. The
idea of class interests had become more and more ingrained in the
minds of the wage earners ; but this idea makes no allowance for
trade limitations and territorial divisions, calling as it does merely
for general unity of effort.
Ever since the Marseilles Congress the proposal for a central
organisation had figured on the agenda of workers' meetings, but it
was only after much groping and effort, which led to nothing on
account of the rivalry between the employment exchanges and the
federations, that the proposals took definite form at the Congress of
Montpellier in 1902. It was at this Congress that it was finally
decided to arrange a friendly agreement between the exchanges and
the federations.
The Confederation générale du Travail (C.G.T.) in its present
form — the name was already in existence in 1895, but not the reality
to which it corresponds — is the result of the union of these two
secondary groups, each of which, however, keeps its administrative
and financial independence. To be eligible for membership'of the
C.G.T. local unions must belong to their national federation and
provincial union. In point of fact it was a process of welding and
not of amalgamation which took place, and the principle of centralisation which lays most importance on the general interests of the
working classes, always a somewhat abstract idea, was thus tempered
down by the recognition of wide regional and local autonomy. Nor
could this have been otherwise in view of the part played by the
employment exchanges in trade union evolution. On account of
their local origin the exchanges had developed a collective mentality
which was jealous of its independence, proud of its achievements and
opposed to any radical absorption. The form of construction adopted
by the C.G.T., which, while not excluding general co-ordination,

io3

FREEDOM OF ASSOCIATION

takes into account traditions of autonomy a n d decentralisation, gives
the F r e n c h trade union movement a peculiar character of its o w n .
Since t h e introduction of amendments in its constitution at t h e
close of t h e W a r 1, t h e activity of t h e C . G . T . is directed essentially
by t h e National Federal Committee.
Composed of one delegate from
each of t h e federations a n d provincial unions, this body is responsible
for bringing into operation a n d checking t h e decisions taken at
national congresses. U n d e r its orders are the other p e r m a n e n t
organs of t h e C . G . T . , namely, t h e Administrative
Committee
(30
m e m b e r s ) , responsible for internal administration a n d p e r m a n e n t
representation of t h e C . G . T . ; t h e Audit Commutée
(6 members)
which supervises t h e financial administration of t h e various departments of t h e Confédération ; t h e Federal Office, consisting of a
secretary-general, three assistant secretaries and a treasurer, which,
under t h e supervision of the Congresses a n d t h e National Federal
Committee, co-ordinates all trade union activities.
I n proportion as t h e concentration and co-ordination of t h e
t r a d e union movement advanced, i t s plan of action became more
defined. Socialist theories h a d been a powerful moral factor in t h e
movement in i t s early years and had served as a " lusty initial
weapon of propaganda " ".
But whether it w a s that t h e trade unions wished t o preserve
their organisation from t h e dangers of party secession, which
periodically r e n t t h e Socialist Party, or that they were p l a n n i n g to
widen their recruiting ground by limiting conditions of membership
to being a wage earner, it soon became obvious that a break between
the Socialist P a r t y and t h e Confédération was inevitable. T h e
definite break took place when t h e W o r k e r s ' Union w a s formed in
1902. T h e principle of t h e political neutrality of t h e industrial
organisations w a s formally reaffirmed a t t h e Amiens Conference in
1906 in t h e following terms :
The Federal Congress of Amiens approves Article 2 of the constitution of the C.G.T., which reads as follows :
The C.G.T. stands apart from all political schools of thought and
includes all workers consciously taking part in the struggle
to abolish the wage-earning system and the employers.
The Congress considers that this declaration involves the recognition
of class warfare which in the economic field opposes workers in revolt

Cf. JOUHAUX: Le syndicalisme

et la C.G.T., pp. 213 et seq.

Ibid., p. 59 (" indéniable force initiale de propagande").

FRANCE

IOC

to all forms of material and moral victimisation and oppression introduced
by the capitalist classes against the working classes.
The Congress adds precision to this theoretical declaration by the
following remarks :
In its daily work trade unionism aims at co-ordinating the worker'6
efforts and improving his welfare and condition by the immediate
introduction of steps to shorten hours of work, to increase wages, etc.
This however, is merely one side of its task. Using the general strike
as a weapon, it is preparing the complete emancipation of the workers,
considering that the trade union, nowadays a militant organisation, will
in future become a group of producers engaged in the re-organisation of
society.
The Congress declares that this twofold policy of present and future
action is actuated by the unsatisfactory position of the wage earners,
which handicaps the whole of the working classes and which goes to
show that all workers, whatever be their political and philosophical
views, should belong to so essential an organisation as the trade union.
The Congress consequently recognises the entire freedom of the individual trade unionist to participate, apart from his union, in any form of
struggle which corresponds to his philosophical or political opinions,
and restricts itself to requesting him in return to abstain from introducing into the Union the opinions which he professes outside it ; as
concernes organisations the Congress declares that if the movement is
to produce its full effect, all economic action should be directed against
the employers, it being no concern of affiliated organisations as such to
take any account of parties or sects which, outside them and side by
side with them, are free to pursue their work of transforming society.
T h e Declaration of Amiens has remained at the base of the
attitude of F r e n c h trade unionism towards the different, political
groups. T h e Charter, as it is called, proclaims that the status of
workers is a necessary and sufficient condition of membership of a
union. A t the same time it shows that trade unionism has its own
special ideals, plans and m e t h o d s which it adapts under the
circumstances \
But the programme mentioned in the Charter of Amiens, which
before the war was of an essentially critical character, contained
elements of constructive policy which were subsequently to develop
and lead to definite economic action. T h i s new tendency stood out
clearly in the m i n i m u m programme adopted by the C . G . T . some days
after the armistice, which claimed equitable conditions of peace and
the participation of Labour in the negotiations to establish such
conditions. I t demanded the re-establishment of all constitutional
r i g h t s and enumerated the social measures which were to be adopted
without further delay, namely, an eight-hour day, freedom of
association for civil servants, workers' control in establishments,
abolition of n i g h t work in bakeries, a complete social insurance
system, equality of treatment for foreign workers, etc. I t proclaimed,
1

Cf. JOUHAUX, op. cit.,

pp. 149 et

seq.

FREEDOM OF ASSOCIATION

and herein lies the original part of the demands, the right of organised
labour to participate in the management and working of national
production. For this purpose the nation was to take back its rights
of control over the riches of the country and entrust their sole
management, under supervision at first, to the institutions of common law, this administration to be transferred later to new collective
organisations composed of skilled representatives of the producers
and consumers.
At the same time the C.G.T. did not content itself with making
theoretical proposals, but took steps for their realisation. On the
Government rejecting its proposal made at the beginning of 1919 to
found a National Economic Council \ the C.G.T. decided to
undertake the work of economic organisation with its own resources.
The Lyons Congress of 1919 in fact ordered the formation of the
Economic Council of Labour, which was to be entrusted with
drafting plans for the general organisation of French production and
the nationalisation of industry. These simple chronological indications will suffice to show the contrast between the new and pre-war
trade union methods.
Yet the trade union leaders categorically deny that there has
been any change or interruption in the continuity of their policy.
As hitherto, the trade union edifice is to be founded on the working
class unions, a collectively conscious and homogeneous force. But
the meaning of the.term "working classes " is to be extended as
never before. No longer will it include only manual workers, but
will apply largely to intellectual and technical workers, civil servants
and co-operators who are to be considered, one and all, as "producers".
The " workshops " thus strengthened by all the live forces of the
nation are to become a complete smoothly-running and inclusive
organism which will find its emancipation in the trade union state,
which will depend not on the unstable equilibrium of political parties,
but on the converging activities of the collective organisations of
production and distribution.
It being decided to make an attempt to nationalise industry, a
railway strike, followed by an attempt at a general strike, was
declared in May 1920. The failure of this strike, besides being a
setback to the C.G.T., was to have still more serious results on the
1
This Council was to be set up some years later. Mention will again
be made of it later.

FRANCE

ill

general development of the trade union movement. This failure
marked the beginning of the decline of the organised trade union
forces of the C.G.T., which had nourished the hope that the vast
majority of the wage earners of France would rally round it at the
critical moment.
Still another and more serious reverse, however, was in store for
the movement : the split in trade union ranks which had been
brewing since the end of the war became an accomplished fact in
IQI2 when a group of trade unionists withdrew from the official
organisation and founded the Confédération générale du travail unitaire. The new Federation, modelled on the lines of its rival, also
found itself a prey to the party broils between communists, trade
unionists, revolutionaries and libertarians. In spite of the wisdom of
the Charter of Amiens, which condemns any interference by political
parties in the workers' movement, trade union unity does not exist
in France at the present moment.
The majority of the organised workers are divided between the
C.G.T. and the C.G.T.U.
Side by side with these two organsations, however, must be
placed the Christian trade union organisation. The character of
Christian trade unionism is best described by the well- known phrase
" a free organisation in the organised trade ". According to the
doctrine of the Christian movement all members of each occupation
are officially entered on a special list of the public administrative
authorities, the members so entered to constitute a corporate industrial
group (corps professionnel).
Each corporate industrial group has
its own special regulations which apply to all members of the occupation concerned. In addition to the organisation of trade union
institutions to which the Christian unions give their constant attention, their programme as defined by congresses and social weeks, has
a great resemblance to the plan of action laid down by the C.G.T.
The influence of the Christian trade union movement is strongest
among salaried employees and women wage-earners, being weakest
among the working classes properly so called. In November 1910 the
different Christian trade union organisations were linked up by the
foundation of the Confédération nationale des travailleurs chrétiens.
As documentary information mention must here be made of the
Confédération nationale du travail neutre and the Union générale des
syndicats réformistes, which, however, have very little influence on;
the organisation of the French working classes.

112

FREEDOM OF ASSOCIATION

The theory and practice of industrial organisation are no longer
limited merely t.o employers and wage-earners but are extending more
and more to the liberal professions, whose unions have been united
since 1920 in the Confédération des travailleurs intellectuels.
The conclusion to be drawn from this brief survey of the workers'
trade union movement coincides with that resulting from the analysis
already made of the employers' movement. The quotation made from
the utterance of an employer's organiser concerning the predominance
of collective activity over individual effort is matched by the following statement made by one of the workers' leaders at the inauguration of the Economic Council of Labour : " Neither in politics nor
economy has it been fully recognised that individualism is dead, that
it was killed by the war and that it was necessary to adopt a collective idea of business matters and the management of men. " '
As a result of the workers' and employers' industrial movement,
the legal position of the association has been enhanced in two ways,
first by the establishment of relations between the parties to the
contract of work, and, secondly, by the relations established between
the associations and the State. On the one hand the co-existence of
these two forces was bound to create a new legal status based on the
freedom of negotiations enjoyed by both parties, and which, pending
recognition by law, must outweigh principles of existing codes ; on
the other hand the industrial associations can hardly fail to leave
traces, if not of their management, at least of their participation in the
policy of state.
On account of this development in the rights of the associations,
the legal analysis of the movement contained in the following chapter
will include, firstly, a study of the position resulting from the law
of 1884-1920, and, secondly, a survey of the new forms taken by
freedom of association in the economic and social field. Finally,
the influence of general legislative measures on the status of the
industrial associations will be discussed.
Prior, however, to dealing with these matters, it would seem
advisable t.o give a brief description of the different types of presentday industrial associations, classified in accordance with the legislative texts governing their constitution, and to provide some statistical information on the growth of their membership since 1884.
1
Speech by Mr. JOUHAUX, Secretary of the General Confederation of
Labour, quoted by Maxime LEROY, op. cit., p. 108.
.

FRANCE

TYPES OF PRESENT-DAY INDUSTRIAL ASSOCIATIONS

Prior to the Act of i July iooi there were two sorts of industrial
associations : (i) industrial associations and unions of associations
legally constituted in accordance with the provisions of the Act of
2i March 1884 ; and (2) associations which did not conform to
these provisions and which were consequently illegal and liable to
prosecution.
The latter could be dissolved by the courts, and their directors
or administrators condemned to a fine of from 16 to 200 francs
(which could be increased to 400 francs in cases of false declaration
made in connection with their rules and the names and civil status
of their directors or administrators), section 8 of the Act of 1884.
General freedom of association was introduced by the Act of
1 July 1901 which recognises the three classes of associations :
(1) Non-declared associations which even when of more than
20 members, may be formed and function freely without
permission or formalities, but which have no legal status or
civil personality ;
(2) Declared associations which are subject to certain simple
formalities, in virtue of which they are granted civil
personality, the right to appear in court and limited capacity
to possess property (right to charge contributions, to own
premises for their administration and meetings of their
members, and the real estate strictly necessary for the
accomplishment of their objects);
(3) Associations recognised as being of public utility by Decrees
issued in the form of public administrative regulations ;
these may possess or acquire the premises necessary for the
accomplishment of their objects, must invest their personal
property in their own name and are empowered to receive
gifts and legacies by special permission.
It is not to be imagined that the Act of 1901 changed the
previous status of the industrial associations, as section 21, paragraph
2, of this Act states categorically that " no change shall be made
in the special laws respecting industrial associations. . . . "
But does it not follow, a contrario, from section 21 of the Act of
IOOI that the industrial associations may not, should they desire,

Freedom of Assot-iatiOTi

FREEDOM OF ASSOCIATION

remodel themselves on the types and according to the provisions of
the Act of 1901 ?
This question has lost much of its practical interest since the
Act of 12 March 1920 extended freedom of industrial association,
notably to the liberal professions, although it is still of importance
for civil servants' associations.
The question was decided legally by an award of the Court of
Cassation of 28 February 1902, when industrial associations were
refused the right of option '. But expert opinion is almost
unanimously opposed to this decision, which is equivalent to saying
that it is no longer possible to institute criminal proceedings against
an industrial association failing to carry out the formalities laid
down by the Act of 1884, as the association would be able to
justify itself by the provisions of the Act of 1901 relating to nondeclared associations.
Prosecution would appear to be possible only if the aims of the
association, clandestine or declared, are contrary to law and public
morals.
MEMBERSHIP

The fluctuation in the membership of the industrial associations,
both workers and employers, was extremely wide during and after
the war, being in correlation with political events and crises on the
economic markets.
It is particularly difficult to make precise estimates concerning
the large national federations. In order to obtain approximate
information on employers' federations, for example, it would be
necessary to make complicated calculations based on scanty figures
contained in their numerous and voluminous annual publications s .
The two principal national inter-trade associations of employers,
the one representing large scale and the other small scale industry,
are the Confédération générale de la production française and la
Confédération générale de l'artisanat français.

SIREV, 1902, I. 445, Note by Mr. Wahl criticising this decision.
The following information, especially that relating to the post-war
period,' whether emanating from the associations themselves or from the
Ministry of Labour must be accepted as approximate.
* For summary data, see E. VrtLEY, op. cit.
2

FRANCE

'Io

T h e first w i t h its 25 groups of similar branches of industry a n d
commerce includes more t h a n 1,200 powerful industrial associations 1.
A s regards the workers' organisations, the Confédération
générale du travail has a present membership òf 553,770 according to
figures published 2 by the International Federation of T r a d e U n i o n s
of Amsterdam.
T h e Confédération
générale du travail
members according to the Internationale
December 1925.

unitaire has -505,000
syndicale
rouge
of

According to reports made to the A n n u a l Congress on 1 J u n e 1925
the Confédération
française
des travailleurs
chrétiens
includes
530 affiliated unions divided into 16 regional unions a n d 9 corporate
federations, the n u m b e r of regularly paying members being
approximately 120,000 3 .
As regards agricultural associations — mixed organisations
which have been able to claim legal recognition under the law of
1884 — continuous development has been noticeable during t h e last
three years. .The Union centrale des syndicats des agriculteurs
de
France includes 28 regional a n d departmental associations w i t h
about 5,500 unions and 1,000,000 heads of peasant families.
The
regional South-Eastern Union (Lyons district) celebrated t h e affiliation of its thousandth union on 26 F e b r u a r y 1925.
A number of official tables * on the workers' and employers'
movement as a whole are given below.

1
To get an exact idea of the strength of employers' groups it is necessary to know in addition to membership figures the importance of the
capital invested .in their undertakings and the number of wage-earners
employed by them. For the most part this information is missing.
3
Bulletin of the l.F.T.U. Jan.-March, 1926.
' According to the census of 1911 the total working class population
was about 5,396,251. The number of persons occupied in industry and
commerce was about 8,000,000 (Information of the Ministry of Labour,
1925)4
Cf. Bulletin du Ministère du Travail, April-June 1922, p. 147 ; ibid.,
April-June 1923, pp. 152 and 233 ; ibid., Oct.-Dec. 1924, pp. 372 and 489 ;
ibid., Jan.-March 1925, pp; 16 and 115.

IlÓ

FREEDOM OF ASSOCIATION

ASSOCIATIONS

Industrial and commercial
associations

Year

Employers
1884

IOI

1905
i January
1 January
1 January
1 January

3,291
4»967
5.°7S
6,210
6,596

1914
1920
1924
1925

II.

Workers

Mixed

68
4.857
4,846
5.283
6,597
7,072

140
233
175
194
196

MEMBERSHIP OF T H E

1905

i
1
1
1

January
January
January
January

1914
1920
1924
1925

III.

FEDERATIONS

1884
1905
1 J a n u a r y 1920
1 J a n u a r y 1924
1 J a n u a r y 1925

167
208
363
392

FEDERATIONS :

175
11,841
l6,7I3l
17.055
21,634
22,905

Mixed

Agricultural

234,234
677.Î.50
1,029.727
1.083,957
1,204,946
1,222,534

ASSOCIATIONS

Workers

107
195
273
309

5
3,553
6,667
6,519
8,633
9,041

ASSOCIATIONS

132,692 14,096
836,134 28,178
1,026,302 51, 1 1 1
1,580,967 31,806
1,804,912 32,161
1,846,047 32.331

Employers

Year

IV.

93,4"
268,036
403,143
379.855
434.833
496,360

Total

Employers! Workers

1890

Agricul-

Mixed

Agricultural

52
99
162
176

6
7
7

NUMBER OF ASSOCIATIONS

INCLUDED IN FEDERATIONS '
Year

1905
1920
1

Employers

Workers

Mixed

Agricultural

2,127
3,856

3,572
4,696

44
22

3.553
3.951

The last official figures published date from rgio.

»'7

FRANCE

MEMBERSHIP OF ASSOCIATIONS AFFILIATED TO
FEDERATIONS '
Year

Employers

220,397
269,214

1905
1920

Workers

757.344
1.473.742

Mixed

4,036
1,027

Agriculture

667,150
597,993

1 The last official figures published date from 1920.

The following table shows the distribution of workers' and
employers' associations and their membership among the different
occupational groups on i January 1920.
Number of associations

Number of members

Occupational group

Agriculture,
fisheries '

forestry

Workers

Employers

Workers

281
IO
15

448
"5
43

26,079
306
229

41,932
119,790
9,164

1,609
109

306
181

154.394
6,055

53.603
51.302

126
137

257
178

6,958
6,826

21,665
43.440

148

318

6,317

174,325

169

278

7,775

58,920

182
351

289
514

8,083
23,077

36,415
234,720

129

2,208

23,759

344

625

23,3"

146,349

900

i,35i

62,133

508,657

124
524

7,204

26,602

153
5.283

38,840

30,324
1,580,967

Employers

and

Quarries
Food
and
drink
(manufacture a n d t r a d e )
Chemicals products
Paper, cardboard and printing trades
Leather and skins
Textile industries properly
so called
W o r k i n g u p of c l o t h , clothing, cleaning
W o o d w o r k i n g a n d furnishing trades
Metal-working
Fire clay and brick working,
B u i l d i n g and c o n s t r u c t i o n a l
trades (stone, wood, iron)
Transport
and
handling
trades, commerce
Toilet a n d d o m e s t i c accesL i b e r a l professions, d o c t o r s ,
p h a r m a c i s t s , etc
Total

5,078

379,855

1 Only employers' and workers' rural associations of commerce and industries are
included in these figures, agricultural associations properly so called, which are generally
mixed, number 6,519 and include 1,083,957 members.

ii8

FREEDOM OF ASSOCIATION

T h e following table shows the various institutions a n d establishm e n t s of the employers', workers' and m i x e d associations in
existence on i January 1920.

Founders
Institutions or

establishments
Employers

Employment bureaux or offices...
Trade libraries
Mutual benefit funds
Unemployment funds
Casual aid funds
Trade courses and schools
Analytical and experimental laboratories
Pension funds
Mutual credit funds
Accident insurance societies
Consumers' co-operative societies
Distributive co-operative societies
Trade competitions and exhibitions
Experimental institutions
Various publications
(bulletin,
newspaper, year-book)

416
190

67
4
25
152

Workers

976
686
743
576
635
352

17
53
51
62
13

72
61

7
156

4
5

303

339

1,441

4,662

CHAPTER II
LEGAL STATUS OF THE INDUSTRIAL ASSOCIATIONS

§ 1. — Legal Standing and Conditions of Existence
LBGAX STANDING

In appearance the present legal regime of the industrial associations in France is simple. Prior to 1884 the associations had no legal
standing, all forms being prohibited in principle. In 1884 special
legislation on industrial associations was promulgated, preceding by
17 years the general recognition of freedom of association. The
associations thus obtained a definite legal standing, which was based
on common, not on constitutional law, as the Constitution of 1875
makes no mention of this subject. Even after the promulgation of
the Act of 1 July 1901, this regime has kept its character of a special
legal status, as the 1901 Act did not change the special position
created for the associations by the previous Act. Thus it is that the
legal position of the associations is governed by the Act of
21 March 1884 and its subsequent amendments.
In point of fact, the associations are voluntary bodies with
optional membership. Although no person eligible for membership
may be prevented from joining them, nobody is forced to do so.
They are private institutions which, in principle, act only for their
members and engage only their responsibility. The associations have
therefore no general or public standing. The normal industrial
combination in France is therefore the trade union, a purely voluntary and private body, which is regulated by special legislative
measures.
It will doubtless be remembered that in the first chapter of the
present study, it was shown that a slow but sure evolutionary
process was causing the industrial associations to abandon their

130

FREEDOM OF ASSOCIATION

purely private character, and conferring on them the position of
representatives of general industrial interests. But so far, every lime
that the champions of the new ideas have obtained a partial legislative success, it has always been in favour of the industrial association
constituted of present-day legal form.
To comprehend the actual conditions of existence and the possibility of action and further development of the industrial associations, a thorough study must be made of the Act of 21 March 1884,
as interpreted by jurisprudence, completed by the episodic provisions
of a few special enactments and amended by the Act of 12 March 1920.
CONDITIONS OF EXISTENCE

In the study of the regulations governing the existence of
industrial associations, a distinction will be made between those
concerning (1), their constitution (2), their working, and (3) their
dissolution.
Constitution of the Associations
To facilitate matters, this heading is divided into basic regulations and formal regulations relating to the constitution of the
associations.
Baiic Conditions
The basic conditions prescribed by the Act for the constitution
of industrial associations relate to the members who go to compose
it (persons) and the aims which it pursues (objects).
1. Membership. Freedom to join or not to join an association.
— Any person is entitled to join an industrial association providing
he fulfils the legal and statutory conditions of membership. Inversely,
no one may be forced to belong to an association, or prevented from
withdrawing from one if he no longer desires to be a member
(section 7). Affiliation to and withdrawal from an association is
therefore absolutely optional, this being the main principle laid
down by the Act of 1884. In practice, however, the interpretation
of this text gives rise to the greatest difficulty, for it is just at this
point that clash two sorts of rights, which, if not wholly
contradictory, at least form a complete antithesis. These are the

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rights of the individual and the right of the association, and it will
subsequently be shown how jurisprudence has tried to reconcile
them '.
What are, in fact, the entrance conditions imposed in connection with age, civil status, nationality, civil capacity, personality,
and the trade exercised ?
Age. — To be a member of an association it is sufficient to
have attained 16 years of age. Parents' authorisation is no longer
required for minors under 21 years of age, this being taken for
granted in the absence of formal objections.
Such persons,
however, may not take part in the administration or management
of associations (section 4, subsection 7).
Civil Status. — Prior to the amendments introduced on
12 March 1920, married women were ineligible for membership of
an association without the authorisation of their husband. This
authorisation is no longer required, and women, whether married
or single, may take part in the administration or management of
associations (section 4, subsection 6).
Nationality. — No restrictions concerning nationality are
imposed as regards membership of an association, and foreigners
may be members in the same manner as Frenchmen, whether in
France or in her colonies. Nevertheless, in the colonies (section 10)
" foreign workers and persons engaged to work as immigrants " are
excluded from this privilege. According, however, to statements
made in the Chamber by the rapporteur of the Act and by the
Government, this provision is virtually a dead letter (D.P. 1919,
P- 3585). Only Frenchmen, however,, may take part in t b e
administration or management of an association (section 4, subsection 5).
Civil Capacity. — To administer or direct an association, it is
necessary to possess full civil rights (section 4, subsection 5).
Some explanation of the practical results of this provision will be
given later. This condition is, however, not necessary for ordinary
membership of an association.
Personality. — May a corporate body such as an industrial or
1
See " Intervention of Industrial Associations in Collective Relations
between the Parties to Contracts of Employment ", p. 149 ; " Legal
Limits of Freedom of Association ", pp. 171 et seq.

122

FREEDOM OF ASSOCIATION

commercial society, form part of an association ? The affirmative
is unanimously admitted, with the reservation that such institutions
must enjoy civil personality, and may consequently be legally
represented by proxy.
Exercise of Trade. — The essential condition laid down by the
Act for membership of an industrial association is that the applicant
exercises, or has exercised, a trade. What exactly is meant by " a
trade " ? A trade consists in the habitual performance of work for
profit, or which tends to be profitable to some extent.
A trade must not be confounded with an occupation for pleasure
or charity, a title or honour, or a social position.
Persons desiring to form an association among themselves must
in addition exercise " t h e same occupation,.similar crafts, or allied
occupations connected with the production of a particular article
(section 2). The Act does not require that the trade of members
of the one association should be identical, but its object is to
maintain among them a certain amount of common interest. The
term " similar crafts " includes trades whieh largely resemble each
other, as for example, bakers and confectioners, weavers and silk
throwsters, while the expression " allied occupations " means occupations which, while differing considerably, take part in the
manufacture of the same products, as for example, the various
branches of the building industry, or the different trades connected
with the manufacture of chemical products.
At first, jurisprudence tended to give a somewhat restricted
meaning to these legal terms, but the liberal tendencies shown by
the Acts of 1901 and 1920 have widened the outlook.
Again, it has been generally admitted from the very outset
that the same trade or similar trades might be exercised by the
members of the same union in different capacities. This means that
joint associations of employers, employees and workers are legal,
this fact being definitely admitted during the discussion of the Act
of 1884, as the result of an intervention by Mr. de Mun \
Following the promulgation of the Act of 1884 legal circles
were very undecided whether freedom of association should be
extended to the liberal professions. From the fact that legislators
considered it necessary to extend trade union liberties to physicians
1

Journal officiel, " Débats parlementaires ", 1883, p. 1352.

FRANCK

I23

by the Act of 30 November 1892 on the exercise of the medical
profession, it would appear that they held a negative point of view
on the subject. A positive interpretation was, however, definitely
established by the Act of 12 March 1920. Ifl consequence, occupational associations may be set up legally by teachers, sick attendants,
publicists, journalists, and even by ecclesiastics, in the latter case
not because priesthood is in itself a " trade ", but because a
priest may be considered as exercising a trade when he is engaged
in regular and remunerated work in connection with preaching,
education and other special branches \ This opinion is, however,
the subject of great discussion.
It was also asked whether liberal professions with a definite
legal status, such as government officials and advocates, for example,
admitted of the exercise of freedom of association, which was likely
to clash with their organic regulations. As the Act of 1920 makes
no reservation on this subject, it appears somewhat difficult to limit
its application on this point 3 .
The Act of 1920 extended rights of association to retired persons,
that is to say, to those who have ceased to follow their occupation or
trade. The provisions of the Act of 1884 were so imperative as
regards the exercise of a trade in order to be eligible for membership
of an association, that it was impossible to admit or maintain the
membership of former employers and workers whose experience,
competence and independence would have been extremely useful.
The Act of 1920, however, (section 4, subsection 8) stipulates that
a person who has ceased to follow his occupation or trade may
continue to be a member of an industrial association, provided he
has followed the said occupation or trade for not less than one
year.
Is this paragraph and are the words "continue to be a member",
to be taken to mean that the Act does not allow persons who have
previously ceased to exercise their trade to join an association, or that
it authorises them to remain members of an association only if they
have joined such association while they were exercising thentrade 3 ? This opinion is sustained by some, while others* consider
1

RIVET : De l'usage que peuvent faire les catholiques de la loi du
12 mars IÇ20. Documentation catholique 1920, pp. 555 et seq.
- G. P10T : Les syndicats professionnels, p. 6.
3
Ibid.
' Martin SAINT-LÉON : Histoire des corporations de métiers, p. 673.

FREEDOM OF ASSOCIATION

124

that a less rigorous interpretation must be given to the Act. In any
case, only those persons who have exercised a trade for at least one
year are retired persons in the meaning of the Act.
Civil Servants' Right of Association. — The question of the
right of civil servants to freedom of association being at present the
subject of much lively controversy, a survey of its various aspects is
given below.
Public officials, especially in Central and Western European
States, are showing an ever-increasing tendency to consider themselves, not as agents invested by the public authorities with duties,
during the execution of which they are constantly at the mercy of
the authorities and liable to dismissal, but as employees of the collectivity, engaged by the collectivity in virtue of a bilateral contract
of service, which carries with it all the legal consequences attached
to a document of this nature '.
With a view to imposing this new conception of civil servants'
duties, its advocates are multiplying the occupational groups and
corporate institutions. These are no longer confined within national
limits, but are becoming international 2 . French civil servants have
formed a number of powerful associations, some of which have
already been in existence for a number of years. Since the Act of
1884 a number of these have evinced the desire to adopt the character
and formation of industrial associations. The question as to whether
freedom of association should be recognised as extending to civil
servants therefore gained great practical importance.
In order to bring out the main points of this controversy, it is
necessary to study the arguments put forward by the supporters and
opponents of freedom of association for civil servants.
Civil servants, say those apposed to the idea, are not in the same
position as other citizens. Their situation cannot be compared to that
of workers in private industry. They enjoy a number of privileges
denied to those employed by private persons . . . . In exchange for
these privileges . . . . they are required to render special services, which
1

A. BOISSARD : " The Legal Position of Public Servants in France. "
International Labour Review, Vol. XII, No. 3, Geneva.
* Second Congress of the International Federation of Civil Servants
held at Paris on n May 1925. This congress received the affiliation of
groups of civil servants from Austria, Czechoslovakia, Denmark, France,
Germany, Great Britain, Greece, Hungary, Ireland, the Netherlands,
Norway, Portugal, Rumania, Sweden, Switzerland, and the United States.
The First Congress met in Vienna in July 1923.

FRANCE

i 25

is but j u s t . . . . By accepting the status of civil servant — and no one
is compelled to do so — they sign a tacit agreement by which they sell
a part of their freedom in the interests of the collectivity '..
In other words, the contractual agreement of civil servants being
of public law, it radically precludes any right to protect their interests
by association. These legal niceties are strengthened by practical
considerations. Civil servants, it is added, once grouped in unions,
will adopt the aggressive attitude common to the majority of the
workers' trade unions ; they will think only of having immediate
recourse to threats, strikes, and of affiliating with other associations
in the vast heteroclitic federations which direct their main energies
to political agitation and class warfare.
On the other hand, civil servants who demand freedom of association put forward their right to be considered as ordinary citizens.
They consider the right to benefit by the Act of 1884 as an exercise
of occupational freedom, which puts them on the same footing as
workers in other occupations, and precludes any possibility of their
exclusion from the main stream of the economic and social life of
their country and their century. They also lay claim to the special
privileges granted by the Act of 1884. As regards the right to
acquire and possess property, they demand certain material conditions
(unrestricted right to acquire personal and real estate, right to receive gifts and legacies without authorisation, freedom to dispose of
their resources). They also desire better guarantees of independence,
basing this demand on the fact that whereas trade unions can be
dissolved only by a legal enactment, associations founded according
to the provisions of the Act of 1001 may be dissolved through
administrative channels. To put it briefly, they ask that their legal
status should be assimilated with that of private wage earners.
What is the attitude of the legislator and the Government in
face of these two opposing theses ?
Prior to the Act of 1 July 1901 civil servants had no power to
form any kind of occupational association having a legal status. In
fact, section 123 of the Penal Code prohibited all forms of combination, and consequently any permanent association of civil servants.
On the other hand, the Act of 1884 was not applicable to civil
servants. The preparatory work in connection with this Act proved

Le Temps, 10 Ang. 1905.

I2Ò

FREEDOM OF ASSOCIATION

this in undeniable fashion. During the parliamentary debates preceding the adoption of the Act, the question had arisen several times
whether freedom of association was to be granted at least to certain
officials of the State, the provinces and the municipalities. But the
difficulty of making a precise and scientific distinction of these
categories finally led Parliament to send back for special legislation
the solution of this problem as a whole.
Nevertheless, a ruling adopted by the Chamber of Deputies on
22 May 1894 declared, for purposes of interpretation, that workers
and employees engaged in State, provincial and municipal establishments, and whose actual position was of great resemblance to that
of similar employees in private concerns, could not be refused freedom
of association. This ruling definitely rejected the distinction which
Mr. Jonnart, then Minister of Public Works, desired to make
between certain employees (confirmed employees) of the State
railways and those of private railway companies '. A considerable
change was, however, introduced in this connection by the Act of
1901. In a general manner, both in theory and in administrative
practice and legal jurisprudence, it was admitted thenceforth that
civil servants were entitled to form legal associations under cover of
the new Act. The only persons who refuse to accept this solution
are those who pretend that no association can base itself on any other
legal conceptions than those contained in the Act of 1884. Moreover,
in virtue of the same arguments as in the past, both theory and legal
practice continued to exclude civil servants from the privileges of
the Act of 1884.
The Act of 12 March 1920 then came on the scene, and during
the debates preceding the passing of this Act the question of freedom
of association for civil servants was raised on several occasions. But,
on account of the complexity of the question and the insurmountable
opposition of the Senate, Parliament once again sent back the
question of civil servants for special consideration in order not to
delay indefinitely the adoption of the other amendments to the Act
of 1884. Whereas the new Act definitely and favourably decided the
question of industrial freedom for the liberal professions, its ninth
1
" The Chamber, considering that the Act of 1884 applies to State
workers and employees in the same manner as to those in private industries, requests the Government to respect this Act and to facilitate its
enforcement. "

FRANCK

12J

section stated that " the rights and privileges of officials shall be
determined by a special Act ". The Chamber, however, obtained a
promise from the Government to suspend all prosecution of civil
servants' associations pending the adoption of the special legislation
promised.
What is the result of this situation from the standpoint of positive
law ? The majority of writers consider that nothing has been
changed, and that so long as the promised texts remain unpromulgated, trade union privileges, judging from the preparatory work in
connection with the two Acts of 1884 and 1920, and by the text
itself (section 9 of the latter Act) cannot be considered as extending
to civil servants. For its part, legal and administrative practice has
confined itself to interpreting the legislative texts to the letter,
therefore repudiating the right of civil servants to take advantage of
the provisions of the Act of 1884 ', although granting them the
privileges resulting from the Act of 1901 2. The public and
administrative authorities have also accepted the classic distinction
between State, provincial and municipal officials, agents of public
authority, and officials employed in managerial and administrative
affairs. While the latter are granted trade union rights, the former
see themselves refused all privileges of freedom of association. In his
famous report of 1904 on the reform of the Act of 1884, Mr. Barthou
adopted this criterion, pointing out that it had already been advocated
by men.like Mr. Laferrière, Mr. Dareste (Administrative Justice in
France), Mr. Arthur Fontaine, the Director of the Labour Office
(The Hire of Labour), Mr. Bourguin (The Application of Labour
Legislation of State Workers and Employees) and others. This
distinction, however, was interpreted in various forms according to
the more or less progressive tendencies of those preaching it.
The desire prevailed among certain persons — at least at the
outset — to restrict the term of " administrative official " to persons
performing work similar to that of workers and employees in
private industry. It was this principle that led the successive
Ministers of Education (Spuller, Léon Bourgeois, Combes and
1
See notably Civil Chamber of the Court of Cassation (in future
referred to as Cass. Civ.), 4 March 1913 (DAIXOZ, 1913, I, 321), Conseil
d'Etat, 20 Feb. 1925. (Gazette du Palais, 1925, p. 517.)
2
»See United Chambers of the Court of Cassation (in future referred
to as Cass. Ch. réun.), 15 June 1923. (D. 1924, I, 153), Conseil d'Etat,
10 Dec. 1924. (D. H. 1925, 65.)

123

FREEDOM OF ASSOCIATION

Rambaud) to refuse in a equally categorical manner trade union
status for members of public educational establishments.
Since then a wider interpretation of the meaning of the term
" administrative official " has been generally adopted, this term
now including all persons who do not take part principally in
enactments of the public authorities, and who merely perform
executive and technical work. Constant reference has been made
to this interpretation by speakers in the Chamber of Deputies — as,
for example, Mr. Lauche in 1919, and latterly by Mr. Chabrun.
It would appear, however, that a definite solution of this question
is now in view. This conclusion is to be drawn in the first place
from recent official statements that the Government has the intention
of granting recognition to civil servants' associations '. Again, in
order to put Parliament in possession of an Act which would allow
it definitely to solve the question of the status of civil servants'
associations, Mr. Chabrun tabled a Bill on 20 June 1925, which, in
the opinion of its author, is an interpretative text of the Act of 1884
on industrial associations. This Bill contains but one clause, which
is conceived in the following terms :
Section 4 of the Act of 12 March 1920 on the extension of the civil
capacity of industrial associations shall be amended as follows ":
" There shall be added to the Act of 21 March 1884 a new Section 9,
thus conceived :
" Section ç. — The present Act shall apply to the liberal professions
and to civil servants, employees, agents, sub-agents and workers in
State, provincial, municipal and public establishments. "
It should be pointed out, however, that the rights acquired by
civil servants through the medium of this Bill would not include the
right to strike, as the Act of 1864 abolished strikes as an offence
only for the generality of the workers. " As regards officials holding
positions of public authority, section 123 and the following sections
of the Penal Code, which punish with the greatest severity all
combinations with the object of planning measures contrary to the

Ministerial declaration of Mr. Herriot at the sitting of 17 June 1924.
Journal officiel, 17 April 1924. Circular of 25 September issued by
Mr. Chautemps, Minister of the Interior, recommending heads of Departmental Services to enter into official contact with civil servants' associations. — Ministerial declaration of Mr. Painlevé of 21 April 1925 : Journal
Officiel, 21 April 1925.

FRANCE

I29

labour laws, or to stop, even by resigning, the working of the public
services, should continue to remain in operation. " l
2. What aims may be legally pursued by industrial, associations?
— Section 3 of the Act of 1884, which is not amended by that of
IQ20, stipulates : " Industrial associations shall have no other
purpose than that of studying and defending economic, industrial,
commercial, and agricultural interests. " From this text it follows :
(a) That an association which does not aim at the protection of
the common economic interests of its members, but which
is formed for purposes of pleasure or for safeguarding certain
special interests, does not meet the requirements of the Act.
(b) That the discussion of politics and religion is strictly
forbidden for associations ; contraventions of this provision
render the directors and administrators liable to prosecution,
and may even justify the dissolution of the association
(section 8 of the present A c t 2 ) . It must, however, be said
in this connection that the line of demarcation between
political and economic questions is sometimes difficult to
establish. If the term " no other purpose " were interpreted
to the letter, it could always be used in moments of political
disturbances as a reason to dissolve the associations 3 .
1

Cf. explanatory notes to the Chabrun Bill : Journal officiel,
30 June 1925. — Cf. also report of Mr. Chabrun on the Bill concerning
the exercise of rights recognised by the Act on Industrial Associations :
Journal officiel, 12 Feb. 1926.
1
Judgments of the Court of Cassation of 18 February 1893 (SIREY,
1896, 1377), confirming the dissolution of the Industrial Association of
Employers of the North of France for having concerned itself with purely
religious questions ; and Court of Cassation of 16 November 1914 (DALLOZ, 1917, 1, 64), stipulating that an association is not justified in inflicting a fine on one of its members for refusal to take part in a political
manifestation.
* Thus it was that in May 1920, after the first railway strike, the
C.G.T. was prosecuted in the courts of law. Judgment was given on
12 January 1921. The findings reproached the directors of the C.G.T.
for not having limited " trade union action to the study and defence of
economic interests, but to have launched forth on the dangerous path of
political revolution ". Gazette du Palais, 15 Jan. 1921. — Questioned by
the judge, Mr. Léon Jouhaux had defended the broad interpretation of
section 3 in vain. He had pointed out that the General Confederation of
Labour " had in view the occupational and economic interests of its
members ". " Are these occupational and economic interests ", he added
" not directly determined by the state of industry and by the general
development of the economic situation of the country ? ". The case,

Freedom of Association

FREEDOM OF ASSOCIATION

130

(c) That the trade unions, as associations of study and defence,
may not transform themselves into commercial concerns,
especially co-operative production societies l . The Act of
1867 is the legal statute of societies working for profit.
The attributions of the industrial associations have, however,
been so greatly extended since 1884, especially by the Act of 1920,
that the term " no other purpose ", included in section 3, has really
lost a great part of its meaning, and the principle it stood for is
meeting with an ever increasing number of set-backs.
Moreover, it is to be noticed that section 3, when it speaks of
" economic, industrial, commercial, and agricultural interests ", does
not add " of its members ". There is no doubt, however, that when
the Act was passed it was intended by the Legislature to limit the
scope of associations to the study and defence of their own private
interests, and not to tolerate any claim to action of general bearing
and administrative character. Present tendencies, on the other hand,
point in an opposite direction, and it is not without interest to note
that after all there is nothing in the original wording of section 3 to
prevent associations from pursuing " the study and defence of
economic, industrial, commercial, and agricultural interests " of an
entire trade, and consequently from performing work of a representative character 2.
Formal Conditions
The conditions imposed by the law concerning the constitution
of the industrial associations are reduced to a strict minimum. No
preliminary authorisation is required any more than registration.
Drafting of the agreement. — L,ike companies and societies, the
industrial association is based on an agreement. Neither the Act of
1884 nor that of 1920 lays down any special form for the agreement.
All that is necessary is that the acceptance of the rules and regulations by the original members be established by private deed drawn
up in one copy, or more simply by a record of the proceedings of the
however, had no definite result, and the dissolution was never put into
practice. (See summary of the questioning of Mr. Léon Jouhaux in
L'Information ouvrière et sociale, 18 July 1920.)
1
Paul Pic : Traité de legislation industrielle.
2
Cf. " Collaboration with the Public Authorities ", pp. 160 et seq

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'31

constituent assembly. Neither of these documents, which properly
speaking, are not " synallagmatic contracts ", are liable to registration.
Notification Formalities. — The first four paragraphs oí section
4, which lay down these formalities, were not modified in 1920. They
state simply that at least two copies of the constitution and rules shall
be filed at the local mayor's office or, in Paris, at the Prefecture of the
Seine (Ministerial Circular of 25 August 1884). They shall be drawn
up on unstamped paper, and shall include details of the names, occupation and domicile of all persons who are connected in any way with
the administration or management of the association.
These
documents will be transmitted by the Mayor or the Prefect of the
Seine to the Attorney General (Parquet). Third parties may demand
information regarding their contents '. All changes made in the
management or in the rules and regulations must be filed as above
(section 4, subs. 3) '. No such deposit need be made until the rules
and regulations have been definitely established s .
Working of the Association
The provisions governing the working of the associations refer to
their internal organisation and the supervisory measures to which
they are subject.
Internal

Organisation

The regulations governing the internal organisation of an
association relate to general discipline and special conditions respecting its directors.
General discipline. — Legislation is silent on almost all points
regarding the regulation of the internal organisation of associations.
This therefore depends almost exclusively on the provisions
introduced in the rules and regulations, and in regard to which the
founders enjoy wide liberty, limited only by the necessity to respect
the main principles of the law. Generally speaking, the rules and
regulations govern the admission of members, their financial obligations (contributions), penalties which they may incur, and conditions
1

Conseil d'Etat, 5 July 1912 (D. 1916, 3, 7).
G. P10T, op. cit., p. 8.
' See speech of Waldeck-Rousseau to the Senate on 29 June 1884.

132

FREEDOM OF ASSOCIATION

of their withdrawal from the association by resignation and their
exclusion.
Conditions of Admission. — In this connection the rules and
regulations may lay down much more severe and restrictive conditions than are exacted by the Act. They may notably establish
detailed and prohibitory conditions regarding domicile, nationality,
age, sex, and moral and social tendencies. They may require certain
preliminary formalities, such as proposal, introduction, acceptance
by the Committee, etc., while final admission may be subordinated
to a vote of the general assembly or a decision of the bureau or committee authorised to this effect.
In a general manner, and contratry to the procedure adopted
for the exclusion of an admitted member, which prejudices an
acquired right, the body entrusted with the consideration of a demand
for membership may reject the demand without stating its reasons '.
Contributions. — The rules and regulations are the sovereign
authority in all matters connected with the contributions exacted
from members of an association, such as the amount of the contribution, method of payment, utilisation, etc.
Penalties. — The rules and regulations of associations may
include penal provisions applicable to those members who fail to
comply with conditions of membership. They may, and in the
absence of statutory provisions to this effect, the general assembly
may also impose fines for any act on the part of a member which is
prejudicial to any measure in defence of occupational interests,
prescribed by the association, as, for example, the performance of
work in a black-listed workshop (in virtue of the repeal of section
416 of the Penal Code by the Act of 1884). On the other hand, it
has been seen that an association cannot inflict a fine on one of its
members for refusal to associate himself with a political manifestation, these being forbidden for industrial associations.
Is an association entitled to sue a member against whom disciplinary measures have been taken, and who refuses to submit to
such measures ? This question is of great importance for the
assurance of discipline, especially in the organisation of strikes and
lock-outs. Contrary, however, to the principles of common law, the
1

Tribunal de la Seine, 18 Oct. 1912. {Gaz. Pal., 1912, 2, 532.)

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133

tendency to refuse thé right to take legal action against defaulting
members prevailed for some time in theory and in judicial practice x.
Nowadays, however, jurisprudence appears, to recognise the legality
of such proceedings : " Judgment has been passed that if the
general meeting of an employers' organisation decides by a majority
vote that all members shall stop work on a given date (lock-out) the
organisation is fully entitled to sue any member for damages who
continues to keep his staff at work, since such action injures the
organisation, both morally, by derogating from its authority and
economic power, and materially, by encouraging the other party. At
least, this holds if the member who refuses to comply with the
decision of the majority does not "resign from the organisation, and
continues to enjoy all the benefits of his membership. " 2 Similarly,
" if, for defensive purposes, a trade union orders a strike by constitutional decision of the executive committee, to which the general meeting has delegated its powers, it should be allowed the right to sue
for damages a member who, without resigning from the union,
knowingly breaks the strike order and continues to work. " 3
Resignation. — The rules and regulations of an association may
not restrict the right enjoyed by members to leave the association as
freely as they joined it. On this point the law is categorical, and
herein may be seen a consequence of the insistence on voluntary
affiliation which is one of the fundamental principles of the Act.
Section 7 stipulates that " any member of an industrial association
may at any time withdraw from the association, notwithstanding any
rale to the contrary ". The association is, however, entitled to claim
from the retiring member " the subscription for the six months following the date of his withdrawal ". The retiring member retains " the
right to be a member of the mutual assistance funds and old age
pension funds to which he may have contributed by subscription or
by payment of capital amounts ".
Exclusion. — The Act is as silent on exclusion as it is on admission. The rules and regulations are therefore free to define the causes
1
a
a

Tribunal civil du Havre, 26 Oct. 1894. (D. 1895, 2, 202.)
See Tribunal civil de Lyon, 11 Nov. 1921. (D. 1923, 2, 150.)
See Tribunal de paix d'Annonay, 16 Feb. 1924. (Revue des Conseils
de prud'hommes, 1924, p. 249.) quoted by Paul Pre : " Judicial remedies
in recent French legislation for the enforcement of agreements of trade
associations " (International Labour Review, Vol. XII, No. 1).

FREEDOM OF ASSOCIATION

134

and methods of exclusion. They may not, however, either explicitly
or by pretention, deprive the member of his right to state his
defence \ In all cases the courts may be asked to decide whether the
decision to exclude a member is based on legal grounds provided for
in the rules and regulations 2 . Although the Act is silent on the
matter, it would appear that exclusion cannot entail, any more than
can resignation, the loss of the right to remain a member of the
" special welfare funds ". But contrary to resignation, exclusion does
not render the person concerned liable to pay his subscription during
the following six months, and only outstanding subscriptions may be
collected in such circumstances 3 .
Managevient of the Association. — Industrial associations must
of necessity have directors or administrators. Although the Act makes
no stipulation regarding their number and title, its insistence that
their names be filed simultaneously with the rules and regulations
may be taken to indicate that their designation is essential. That
this is so is shown by the fact that these administrators are the legal
representatives of the association as a corporate body. The rules and
regulations of the association may therefore contain provisions
defining the manner of appointment, the duration, character and
scope of the respective functions of all persons forming part of its
administration or management in any capacity whatsoever.
It would be well if these same rules were to contain some definition regarding the division of duties between the management committee and the general assembly of the association. The Act itself
makes no mention of the general assembly. According to common
law the general assembly has the right to exercise all functions which
have not been definitely delegated to the management committee,
and indeed there would appear to be nothing to prevent the functions
usually reserved for the general assembly from being delegated by
the rules of the association to some other more restricted body, the
members of which would be appointed either by seniority, election,
or by nomination of the management committee of the association.
The Act has laid down a number of special conditions which
must be fulfilled by directors or administrators of the association.
According to section 4, subsection 7, these officials must have at1

Paris, 9 Jan. 1008. (D. 1919, 2, 372.)
* Cass., 15 March 1910. (I). 1913, 5, 30.)
* G. P10T, op. cit., p. T6.

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»35

tained their majority, be French citizens, and in full possession of
civil rights (section 4, subsection 5).
The first condition is a measure of prudence which is perfectly
natural on account of the responsibilities attached to the position of
director.
The second, which may seem surprising, was inspired and
maintained for political and national reasons. It is the cause,
however, of a number of difficulties of a practical order, as without
it foreigners, who in France are granted trade union rights, would
legally be empowered to set up and administer industrial associations
among themselves.
The result of the third condition is that the functions
of director or
administrator
of an industrial
association
may not be held by (1) persons who have incurred the penalty of
" civil degradation ", (2) persons who have been deprived of their
civil rights as a result of a criminal condemnation (section 42 of the
Penal Code), and (3) persons deprived of parental authority (Act
of 24 July 1889).
The civil responsibilities and penalties attached to the position
of director or administrator of an industrial association will be
discussed later in the part of the study devoted to the consideration
of the various spheres of activity of the associations.
Administrative

Supervision of the Association

No special administrative or legal supervision of the associations,
especially as regards their financial management, is provided for by
the Act. The associations are consequently subject only to the
ordinary police and legal provisions of common law, and to prosecution for infringements of civil, commercial and penal law in the same
conditions as other bodies enjoying civil rights.
Section 8 embodies a certain number of penalties which may be
applied in cases of non-observation of the main provisions of the Act
of 1S84, notably those concerning the structure of the association
(section 2 and section 4, subsection 8) ; its object (section 3) ; constitutive and registration formalities (section 4, subsections 1-3) ; the
civil capacity of administrators (section 4, subsections 5-7). Two
classes of penalties are provided, namely, a fine of from 16 to
200 francs, which may be increased to 500 francs in cases of false
declaration in the documents which must, be filed with the authori-

130

FREEDOM OF ASSOCIATION

ties, this fine being imposed
secondly, the dissolution of
of the attorney-general may
will be further discussed in

on the directors or administrators, and;
the association, which at the instance
be ordered by the courts, and which
the following chapter.

Dissolution of the Association
The dissolution of an association may be either voluntary or
compulsory.
Voluntary

Dissolution

Section 7, subsection 3 (added by the Act of 1Q20 to put an end
to controversy) states that an association may be dissolved in pursuance of the rules (statutory dissolution) or by a decision of the
general assembly (voluntary dissolution).
Statutory dissolution may be effected on the expiry of the
period of existence laid down in the rules and regulations, or in the
event of any other contingency which of necessity terminates the
agreement.
Voluntary dissolution may result from a decision of the general
assembly even if this body desires to bring it about before the expiry
of the period of existence mentioned in the rules or, if the association
has been formed for an unlimited period, at any moment whatsoever.
It is not without interest to ascertain whether this decision must be
unanimous if no ruling on the subject is included in the regulations.
As the Act throws no light on this point, a number of authors
maintain that unanimity is necessary, and base their argument on the
fact that it is in the general interest to strengthen the existence of
organisations working not for profit but in the defence of occupational interests, and that their right to resign affords to those who
are not content with the management of the association the means
of withdrawal from it. But it would seem that if unanimity were
required to dissolve an association, it would in fact be virtually
impossible to realise this. It must be admitted, however, that it may
often be to the advantage of a majority wilfully obstructed by a
dissenting minority to declare the association dissolved, with the
intention of forming a similar association in which unity would
prevail.
The question, however, is not of great importance. The dissolution of the association entails the liquidation of its property. Sec-'

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tion 7 decides all points of controversy likely to arise in this
connection, stating that " the property of the association shall be
dealt with according to the rules, or, in default of such rules, according to the decision of a general meeting. It shall in no case be
distributed among the members. " Therefore the refund of vested
interests is not admitted as for ordinary societies.
But it would appear that a donor in making a gift to an association may insist, in conformity with common law, on the right to a
refund in case of dissolution.
The dissolution of an association would not of necessity appear
to entail legally that of the special welfare funds instituted by it,
as these, as will be seen later, are distinct corporate bodies.
Compulsory

Dissolution

Compulsory dissolution is pronounced through legal channels.
It is a controversial point whether this form of dissolution may
be demanded by one or several members of the association if the
management committee or the general assembly refuses to apply one
of the statutory regulations on this point, or by application of
section 1780 of the Civil Code and for " good reasons " such as acute
difference of opinion between the members of the association which
prevent the latter from achieving its objects. The question has not
yet arisen in jurisprudence which would seem to indicate that it is
of small importance.
Section 8 of the Act provides for the legal dissolution in all
cases of contraventions of certain other sections enumerated, and as
an additional penalty to the fines imposed on directors. In such
circumstances dissolution may be ordered by the criminal court at
the instance of the Attorney-General of the Republic but the court
is in no way bound to take such a decision. It must, moreover, be
recognised that under present circumstances the decision to dissolve
an association has lost much of its efficacity and even interest, as
no penalties are provided against an association which, after having
been declared disbanded, continues to exist or reconstitutes itself.
The whole process of dissolution may therefore be taken to have
importance only as a political or sentimental gesture

138

FREEDOM OF ASSOCIATION

§ 2. — Possibilities of Acting
As justification for its recognised economic and social activities,
the association has its own civil status and legal personality.
The association has a civil status. It bears the name given to
it by its founders which has been made public by the filing of its
rules and regulations, an action which is a sort of notification of
birth of this new corporate body. The association has the exclusive
right to its declared name, by which it pledges itself towards third
persons but which, on the other hand, it may claim erga omnes l.
At the same time the association has acquired the status of a corporate
body (section 5, subsection 1, as amended by the Act of
12 March 1920). This status is, of course, vested in its representatives, i.e. the directors or administrators (whose names and titles
must also be filed with the authorities), who act for it. But the
association is pledged by them in its quality of a corporate body.
A survey of the powers of the association resulting from its
corporate status will now be made under the following three headings:
fi) Powers under civil law.
(2)
(3)

Legal penalties incurred.
Collaboration with social and economic institutions.
POWERS UNDER CIVIL L A W

The activity of the association in the field of civil law may be
considered from the point of view of its right to acquire and possess
property, its contractual capacity, its right to bring legal actions,
and the responsibility incurred by it.
Right to Acquire Property
The original section 5 of the Act of 1884 and its restrictions,
expressed and understood, had given rise to frequent controversy on
the capacity of the association to acquire property. Their right to
real property in return for a consideration was limited strictly to
premises necessary for their meetings, libraries and vocational
courses. A number of writers deny them all right to accept real or
personal property as a free gift.
1

Paris, T March T8SS. (Revue des Sociétés 1888, p. 297.)

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I39

Nowadays these controversies and distinctions have no object as
section 5, as amended, confers on associations the widest rights to
acquire, possess and administer property.
Subsection 1 of the new section stipulates most broadly and
clearly that an association may " acquire; without, authorisation, real
or personal property, either as a free gift or in return for a consideration ". Greater latitude cannot be imagined, as absolutely no reservation is made regarding the acquisition of real property and the right
to accept gifts and legacies of all kinds, without State interference.
Consequently the directors are entitled to manage this property
(and therefore to use the funds, make investments and transfers,
purchases, etc.) as they please, subject only to the supervision of the
General Assembly of the association and in so far as the Assembly has
invested them with powers to that effect.
Included in this wholly absolute right of administration which has
devolved on associations is the right to establish various kinds of
provident institutions for their members, either granting such institutions a certain autonomy by organising them on the lines laid down
by special acts as regards one or another form of assistance or
insurance fund, or by financing them entirely from the general
resources of the association and managing them according to their
own methods.
A singularly noteworthy provision of the Act which declares
undistrainable certain parts of the property owned by associations,
consolidates still further their right to acquire and reassures those
workers' circles which have a tendency to fear that the large amount of
property owned by certain associations might be seized as a guarantee
during periods of acute social unrest.
The Chamber had even adopted a text which exempted the entire
property of associations from distraint, but this measure led to a
prolonged and sharp dispute between the Chamber and the Senate.
Finally, the adoption of section 5, subsection 18, restricted exemption
from distraint to " the land and buildings and furniture necessary for
their meetings, libraries and courses of technical instruction ", i.e.,
all the property to which the association's right to acquisition was
previously restricted.
Subsection 19 of the same section grants the same privilège for
the funds of some special institutions established by the association.
These provisions will be discussed later on.

140

FREEDOM OF ASSOCIATION

Contractual Capacity
Whether it be for purposes of administration, acquisition or
investment or for any other purpose, the association has unrestricted
freedom of action to borrow, pledge, mortgage, compound with or
compromise. More particularly, it may " enter into contracts or
agreements with any other association, society, or undertaking ".
" Any contract or agreement affecting collective conditions of labour
shall be made under the conditions specified in the Act of 25 March
1919 " (section 5, subsection 11).
The right to participate in collective labour agreements and its
consequences will be examined in the part of this study devoted to
the association's right to intervene in an occupational capacity.
But does this contractual capacity, wide as it has been proclaimed
and without restrictions, and of which M. Chéron, speaking in the
Senate, said that " it includes all rights belonging to a person in
possession of full civil rights " *, give the association the right
incidentally to carry out commercial transactions, or perhaps even to
engage in commerce in a regular manner ?
The legislation of 1920 would seem to repudiate this right. This,
at least, was the conclusion arrived at in a parliamentary and theoretical controversy in which the Barthou Report of 1904 played an
important part 2 . When he declared that he intended to deny the
association's " commercial capacity ", Mr. Chéron did not intend to
contradict this theory. But in the light of the solution given by trie
Act of 1920, this formula would appear to be legally inexact. " It
is not the capacity of the association which is questioned. The proof
of this lies in the fact that nowhere does the law proclaim the nullity
of commercial transactions made by the industrial association, and
annulment is the characteristic penalty of incapacity. When, under
the regime of 1884, the association could not legally acquire real
estate except in special cases, article 8 (original text) was careful to
pronounce the nullity of the acquisition. It is not therefore a
question of capacity which is raised here, but rather one of attribution.
Legislation has not withdrawn the capacity from associations, it
merely forbids them to carry on commerce ". This prohibition is,

Senate, Session of 21 June 1917, pp. 600-611.
BARTHOU,

syndicats. "

Chap. 4., II : " De la capacité conìnrrcialc accordi e HHX
-

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I4I

moreover, more implied than expressed, and it is the result of the
narrow confines in which subsections 8, 9 and 10 of the amended
section 5 authorise the associations to buy, for the purposes of resale,
and to accumulate for purposes of sale ', as will be seen in analysing
these paragraphs when considering the question of the participation
of the associations in certain economic institutions.
Right to Bring Legal Action
The widened capacity of the association, as a corporate body to
acquire, hold and administer property, entails as a corollary the right
to bring legal action. This right has never been doubted when it
was a question of protecting their personal and capital interests in
the courts of law and it has always been exercised naturally through
the medium of its legal representative. Only the names of these
representatives figure in the instruments of procedure to the
exclusion of those of ordinary members who are in no way drawn
into the proceedings. If the rules and regulations or a special decision do not delegate this power ad litem to some other person, it is
on the president of the association that the legal representation of the
association falls 2 .
" If the association is in the position of defendant, it must,
according to common law, be sued in the local court ; if the association includes several distinct sections or sub-organisations enjoying
a certain amount of autonomy and having their seats in different
localities, each of these sections may be liable to legal prosecution. " 3
Apart from cases in which it is a question of the protection of
personal and capital interests, may the association be considered to
have the right to act when it is a question of the collective interests
of a trade as a whole ? After much opposition this point has come
little by little to be recognised by jurisprudence 4 . The question
was finally decided by the Act of 1920, which sanctioned the decisions
adopted by legal practice and confirmed the représentative rôle of
the association. Section 5, subsection 2, stipulates that associations
" may in any court of justice exercise the rights of a civil plaintiff
(that is to say, claim damages, publication of judgment and all other
1

V. G. P10T, op. cit., pp. io-n.
- Lyon, 3 Juh- 1890. (D. 1891, 2, 30.)
3
Paul Pic, op. cit.
4
Cass. Ch. réun., 5 April 1913. (D. 1914, 1, 5.)

142

FREEDOM OF ASSOCIATION

measures calculated to repair a wrong) in respect of matters which
may, directly or indirectly, prejudice the collective interests of the
trade which they represent ". Thus, a prejudice, even indirect,
arising either from a fault committed or from damage suffered by a
person exercising a given trade, is sufficient basis for legal action
on the part of the association on behalf of the whole trade \ This
is a decision of the highest importance as regards the conception of
the character and rôle of the association.
This conception has been further developed by the provisions of
certain special laws which will be discussed in another part of this
study 2.
Liabilities Incurred
The privileges enumerated above carry with them certain
liabilities.
In principle, administrators acting for the association do not
pledge themselves personally towards third parties, the association
alone being bound by the acts committed by them within the limits
of their powers. This is, of course, merely an example of the
principles of representation. It is only the capital of the association
as a corporate body which is affected by the civil liabilities arising
from engagements made in its name and from acts done on its behalf.
The administrators only become responsible to third parties when,
erroneously or with intent to defraud, they exceed or execute their
mandate so as to cause prejudice to such persons.
Administrators may be held responsible to the association if, on
account of incompetency or dishonesty, they cause material or moral
prejudice to the association, but as a rule, when administrators have
not exceeded their powers it is the association which bears the civil
responsibility for their management.
PENAL LIABILITIES INCURRED

May an association as a corporate body be held to be directly
responsible as for a quasi-delict, " over and above the responsibilites
of the administrators, if the tort for which damages are claimed can

G. PIOT, op. cit., p. 9.

See " Collaboration with the Public Authorities ", pp. 160 et seq.

FRANCE

be considered as a result of concerted action between those who have
a right to speak in the name of the association, and consequently as
the work of the association as a whole "? Certain legal enactments
seem to admit in this case the direct responsibility of the association
(section 1382 of the Civil Code), and not a simple indirect responsibility arising out of the illegal actions of its representatives (section
1384 of the Civil Code) '. This opinión is largely contested in theory.
" Corporate bodies " writes Mr. Planiol, " cannot commit an offence.
This solution is an invention for the convenience of certain legal
enactments, but which cannot serve as a screen for the authors of
illegal acts. This is evident if the offence is liable to punishment
under penal law. An offence presupposes an imputation which,
logically, is not to be met with in corporate bodies . . . . The answer
to this question must be the same when the offence does not entail
a penalty properly so1 called, but exists as a civil offence 2. "
In any case, real penal sanctions can be applied to administrators
personally only when they are guilty, under cover of the association,
of offences entailing punishment.

COLLABORATION WITH INDUSTRIAL, SOCIAL AND
ECONOMIC

INSTITUTIONS

In the following chapter a study will be made of the particular
cases where the association is entitled to intervene as an industrial
authority. This intervention may take the form of collaboration
with the legislative and executive authorities in the elaboration and
enforcement of social laws in general, co-operation in the regulation
of industrial contractual conditions, and the supervision of the
enforcement of these conditions and of the development and settlement of industrial disputes to which they may give rise. In addition,
section 5, subsections 3-10 of the Act of 12 March 1920 mentions a
number of special institutions which the industrial associations may
either establish and administer themselves or subsidise and support.
This list is, however, purely indicative and in no way restrictive.
The statement made in this connection to the Senate by the rapporteur (Session of 22 June 1917, p. 622) clearly proved that the institu-

1
3

See notably Cass., 22 March 1892. (D. 1892, I, 449.)
Paul Pic, op. cit. Note under D., 94, 2, 305.

144

FREEDOM OF ASSOCIATION

tions are mentioned as examples intended to stimulate the initiative
of industrial associations.
The institutions in question may be divided into three classes,
viz.
(a) Institutions of a purely industrial character ;
(b) Welfare institutions ;
(c) Health and economic schemes.
Institutions

of a Purely Industrial

Character

Section 5, subsection 5 of the Act mentions " offices for persons
requiring workers and persons seeking work ". This is a reproduction of a paragraph of the original section 6 of the Act of 1884, which
mentioned the right " freely to establish and administer these
offices ". The provisions of the Act of 1884 on this subject had
already been confirmed by the Act of 14 March 1904 on employment offices. But this latter Act had removed the necessity for
preliminary authorisation, and insisted only on newly created offices
being formally declared at the mayors' office (Labour Code, I,
sections 83 and 84). The new law maintains the necessity of this
declaration.
Subsection 6 of section 5 mentions a number of " bodies which
industrial associations may establish, administer or subsidise ",
including in the first place, industrial provident institutions. These
institutions are to be considered as distinct from the special funds
for mutual assistance and pensions provided for by special legislation,
and which will be mentioned later.
The aim of the authorities was to promote the foundation of
special autonomous organisations adapted to purely industrial risks,
such as involuntary unemployment, occupational diseases and
invalidity, strikes, etc., which were not covered by the general texts,
of social legislation.
The intention of the Legislature would seem to have been to
leave the industrial associations a wide latitude in creating and
administering such funds, but as will be seen later, the capital of
these funds is not exempt from distraint like that of other trade union
institutions.
3. Subsection 6 of section 5 goes on to mention " laboratories,
agricultural experiment stations institutions for scientific, agricultural
and social education, lectures and publications of interest to persons

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I45 «

engaged in trade ". The field thus opened up to the initiative of
industrial associations is very wide as regards the foundation of
institutions of welfare, publicity, and technical and social education,
and it would seem to extend to the very limits of the competence
of the associations, if not actually beyond it.
Welfare

Institutions

Secton 5, subsection 3, states that industrial associations " may
establish among their members special funds for mutual assistance
and pensions, provided that they conform to the legal provisions in
force ". There is no question here of specific industrial interests,
" and the mutual insurance funds set up by the industrial associations are occupational only in their methods of recruitment ". The
Act therefore places them on the same level as mutual assistance
funds, and they must in consequence conform to the Act of
1 April 1898, or, as regards pension funds, to that of 5 April 1910
(section 19).
Industrial associations might also be tempted to set up other
forms of welfare institutions not specially occupational, such as life
insurance or capitalisation funds, with their various systems for
providing their members with a capital sum in case of death, or a
capital payment after a certain number of years' insurance, (e.g. the
so called " dotal " funds), capital amounts increased in every case
by compound interest, bonuses or money prizes. Although the Act
contains no ruling on the matter, it is to be supposed that associations are not in a position to found such funds without confirming to
the laws governing undertakings of this nature, namely, the Act of
17 March 1906 respecting societies " contracting liabilities, the fulfilment of which depends on the duration of human life " ; the Act of
19 December 1907 respecting enterprises which, apart from the
question of mortality, " promote thrift for the purposes of capitalisation " and " contract ", vis-à-vis their members, " definite liabilities ";
and the Act of 3 July 1913 respecting concerns which " capitalise
the savings of their members without undertaking definite
liabilities ".
It would indeed be scarcely logical to consider industrial
associations as legally and implicitly exempt from these legislative
measures, which are applicable to all persons and societies, since
they continue to remain subject to the " legal provisions in force ",

Freedom of As=ocÎRtîon

140

FREEDOM OF ASSOCIATION

when they undertake the formation of funds for mutual societies
and pensions. Between all these institutions there are obvious
analogies. Some of them undertake mutual insurance, and even
those which have not this character, such as funds which limit
themselves to capitalisation schemes pure and simple, still require
to provide their members with guarantees of which it would be
imprudent to deprive them.
It is to be noted that the " special funds for mutual assistance
and pensions " and all other kinds set up in accordance with " the
legal provisions in force " are societies legally distinct from the
associations, having a separate legal personality and funds in virtue
of the Laws quoted above, and especially that of i April 1898. It
therefore follows that in exempting from liability to distraint the
capital of their special funds for mutual assistance and pensions
(section 5, subsection 19) in the limits defined by section 12 of the
Act of 1 April 1898, i e. " up to 360 francs per annum for income
and 3,000 francs for insured capital ", the legislation does not
grant a favour to the industrial associations, as these sums do not
form part of their capital, and cannot in any case be claimed by their
creditors. This exemption from distraint benefits only the members
of the special funds, and serves to protect them alone against claims
by their creditors.
Health and Economic

Schemes

Under this heading are included in the first place " cheap dwellings " and " acquisition of land for workers' gardens and for purposes
of physical culture and hygiene ", as mentioned in section 5, subsection 4. The Act states that associations may devote to such purposes
only " a part of their funds ", and not the whole, for it could easily
be argued that, such aims not being of a purely occupational character,
the associations were departing from their real aims, violating
section 3 of the Act of 1884, and were no longer real industrial
associations.
But by far the most important privilege granted to associations
in this connection is that relating to co-operative societies. In
subsection 7 of section 5-, the Act stipulates that the associations
" may subsidise productive or distributive co-operative societies ".
No mention is, however, made of "co-operative credit societies",
although it is difficult to understand why this distinction is made

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I47

Nevertheless, the Act of 13 March 1917 respecting " the g r a n t of
credit to small and medium scale commercial and industrial establishments " recognised the industrial associations ' " right to subscribe to
the capital of people's b a n k s " (section 10), while the Act of
5 August 1920 " respecting mutual credit and agricultural co-operative
societies " allowed the associations to participate in the formation of
agricultural credit societies. Finally, the Industrial Associations Act
of 1920 capped previous legislation and settled once for all a question
hotly disputed under the terms of the Act of 1884, by authorising
(section 5, subsections 8, 9 and 10) the industrial associations t o
organise their own co-operative buying a n d selling departments, in t h e
following terms :
If their rules allow, and provided that they do not distribute profits,
even in the form of rebates, to members, they (industrial associations)
may :
(1) Purchase for letting 011 hire or for loan or distribution among
their members, all goods necessary for carrying on their occupations, raw
materials, tools, implements, machines, manures, seeds, plants, animals,
and foodstuffs for cattle '.
(2) Give their services as intermediaries, free of charge, for the sale
of produce resulting exclusively from the personal efforts of members
or of business carried on by members ; they may assist this sale by
exhibitions, advertisements, publications, combination for the ordering
and delivery of goods, provided that they shall do so in their own name
and on their own responsibility.
I t is to be noticed that one of the conditions attaching to the
above privileges is that the associations do not distribute profits
" even in the form of rebates to members " As is well known, the
term " rebates " means the sums paid out at the e n d of the financial
year by co-operative societies to their members in proportion to t h e
member's business with t h e m . I n principle, then, these rebates
are not " profits ", but only the refund of " overcharges ". " I t
would be otherwise only if they were granted to members only in
proportion to the amount of shares held, or to certain clients to t h e

' On Senator Henry enquiring (Senate, Session of 22 June 1917,
Journal officiel, pp. 611-612) whether the word " distribution " applied
only to previous orders, or whether it allowed associations to buy in
anticipation of and with a view to fulfilling further orders, he was
informed, both by the reporter on the question and on behalf of the
Government, that " to distribute means to supply without profit . . . .,
provided that the buyers effecting the distribution be members of the
association ".

148

FREEDOM OF ASSOCIATION

exclusion of others, on whom a profit would thus be made. " ' It
seems evident that the Act only intended to prevent the industrial
associations from making rebates having the character of distributed
profits.
Be this as it may, it will be seen that the Act of 1920, even
although it does not allow the associations to carry on commerce,
at least grants them in very wide measure the right to set up cooperative societies.
Finally, the new Act authorises the associations to certify, on
their own responsibility, by means of association marks or labels,
the origin and the conditions of manufacture of products to which
they had consented to give this certificate, even in cases where such
products have been turned out by a manufacturer not belonging to
the association. In this connection, section 5 (subsection 12, 13
and 14) states as follows :
Industrial associations may file their marks and labels, provided that
they comply with the formalities prescribed in section 2 of the Act of
23 June, 1857, as amended by the Act of 3 May 1890. They may
thenceforward claim exclusive proprietory rights in these marks aad
labels under the said Act.
The said marks or labels may be affixed to any product or article
of trade for the purposes of certifying its origin and the conditions of
its manufacture. They may be used by any individual or undertaking
offering such products for sale.
The penalties prescribed in Sections 7-11 of the Act of 23 June 1857
against persons convicted of counterfeiting or fraudulent use (contrefaçons, apposition, imitation ou usage frauduleux) of industrial association marks shall apply to all counterfeiting or fraudulent use of individual
association marks or labels.

» G. P10T, op. cit., pp. 12-14.

CHAPTER III
DEVELOPMENT OF INDUSTRIAL ASSOCIATIONS
OUTSIDE THE LEGAL PROVISIONS

§ 1. — Intervention of Industrial Associations in Collective
Relations between the Parties to Contracts of Employment
The industrial association, conceived by the authors of the
Act of 1884 as the representative of individual groups of industrial
interests, was not long in getting itself recognised in ever wider
circles as the authorised mouthpiece of the entire trade it
represented.
The trend followed by jurisprudence and legal
measures helped to develop this wider conception. A survey will
now be made of the more interesting examples of the intervention
of industrial associations in the relations between employers and
employed, and of their relations with the public authorities.
COLLABORATION IN T H E REGULATION OF EMPLOYMENT
BY CONTRACT

The precautions taken by the Act of 1884 to guarantee complete
freedom of entry and withdrawal for members of the associations
show clearly that the legislature had intended to confine the
activities of the associations within the traditional limits of the
individual contract. As a result, however, of the constantly
increasing generalisation of collective agreements, the contractual
prerogatives of the associations have widely extended. Although
not legalised by any Act or Code, their new form of activity
became a fact which jurisprudence was finally forced to recognise \
1
See notably Cass. Ch. réun., 5 April 1913 (D. 1914, I, 65). This
Order recognised the validity of collective agreements concluded by the
industrial associations, as well as their right to take legal action " in
order to assure the protection of the collective interests of the trade
represented as a whole by the association. "

FREEDOM OF ASSOCIATION

150

The Act of 25 March 1919 respecting collective labour agreements
(Labour Code, Book I, sections 31 and 32) therefore merely
confirmed and defined the rights of the industrial associations
regarding the conclusion of agreements and their legal enforcement.
It has already been seen that the rights of industrial associations
to participate in the conclusion of collective agreements had been
formally recognised. by section 5, subsection 11, of the Act of
12 March 1920 \ This right was defined in all its details by the
Act of 25 March 1919, which conferred a predominant rôle on the
association in all such matters. The association may conclude
agreements in its- own name not only for its members 2 but also, in
virtue of a legal presumption, on behalf of certain third parties not
belonging to the association, who consequently cannot be considered
as having given any mandate, even tacit 3 , to the association.
The field of application of the collective agreement, though
widened by these provisions, does not of necessity extend to third
parties foreign to the contracting industrial association for which
it continues to be considered as res inter alias acta. This results
in a certain amount of uncertainty which is prejudicial to trade union
solidarity and the uniformity of conditions of labour, and which
seems to be a contradiction of the real aims pursued by collective
agreements. For these reasons several legislative measures recently
proposed aim at introducing on divers lines a collective agreement
of common law, by conferring on the public authorities (prefects or
Minister of Labour), or on institutions of conciliation and arbitration,
whose award would be ratified by ministerial decision, the power to
1

Section 5, subsection 11, reads as follows : " They may enter into
contracts of agreements with any other association, society or undertaking. Any contract or agreement affecting collective conditions of labour
shall be made under the conditions specified in the Act of 25 March 1919. "
2
The representatives of an industrial association, or of any other
group, may conclude agreements in the name of the whole group, in
virtue either of the statutory provisions of this group or of a special
decision of this group, or of special powers granted them individually
by the members of the group. In default of these, and in order to be
valid, the collective labour agreement must be ratified by a special
decision of the group. The groups determine their own methods of
deliberation. (Section 31 b.)
3
When only one of the parties to the labour contract is to be
considered as bound by the clauses of the collective agreement, these
clauses are presumed to apply to relations arising from the contract of
work in default of contrary provisions. (Section 31 r, first paragraph.)

FRANCE

»SI

e x t e n d to a whole region or district the collective agreement
concluded between the most representative organisations of the
employers a n d workers '. These Bills, which all tended t o e n t r u s t
industrial associations with the regulation of conditions of labour
for the whole trade, have been temporarily laid aside o n account of
the technical a n d economic difficulties which they raise.
Apart from e x t e n d i n g their r i g h t to conclude collective
agreements, the Act of 1919 has increased the prerogatives of the
industrial associations in another direction by g r a n t i n g them the
right to take legal action in order to secure the enforcement of
agreements already concluded.
I t will be recalled t h a t the Act of 1884 as amended in 1920 had
conferred upon industrial associations the right to take proceedings
in respect of matters only which directly or indirectly prejudice the
collective interests of t h e trade which they represent. I n virtue of
t h e Act of 1919 they m a y not only act in their own n a m e , b u t i n
derogation of the legal m a x i m that " in France none may plead b y
p r o x y ", they m a y also take proceedings on behalf of their members
without having to prove t h a t they hold a power of attorney from the
interested party or parties (provided always t h a t the latter have
neither made opposition to such action, nor surrendered their
individual rights of a c t i o n ) . Articles 31 (t) and 31(11) of Book 1 of
the Labour Code, conceived as follows, are categorical on this point :
ARTICLE 31 ( i ) ; — Groups entitled to take legal proceedings (e.g.
legally constituted industrial associations), being parties to a collective
labour agreement, can, in their own name, bring an action for damages
either against the other adhering groups, against the members of such
groups, against their own members or any other parties bound by the
agreement who violate their pledges.
ARTICLE 31 (v). — Groups entitled to take legal proceedings, parties
to a collective labour agreement, can exercise the right of action arising
out of this contract in favour of their members without having to prove
that they hold a power of attorney from the interested parties, provided
that the latter have been advised and that they have not objected to such
an action being entered. The interested party is entitled to intervene
in the proceedings taken by the group.
When an action arising from a collective labour agreement is brought
by a person or a group, the other groups capable of suing and being sued
whose members are bound by the agreement, have also the right to
1
The Bill of the Joint Commission of the Seine. See Strauss' report,
Journal officiel, Senate, 1910, p . 771 ; the Strauss Bill inspired by the
preceding motion, ibid.: Senate, 1919, No. 103, p. 158 ; Lerolle Bill, ibid.,
Chambre, 1918, p. 1824 ; the Millerand Bill on the amicable settlement
of industrial disputes, ibid., Chambre, 1920, No. 489.

FREEDOM OF ASSOCIATION

152

intervene in the proceedings in view of the collective interest which the
settlement of the dispute may present for their members.
These new principles have been wholly confirmed by jurisp r u d e n c e '.
T h e act of 1919 confined itself to providing the legal framework within which the associations are free to draw up provisions
best suited for the defence of their occupational interests, with the
sole reservation t h a t such provisions are not in contradiction to
e x i s t i n g laws a n d public order. T h e interpretation of certain of
these provisions has led to the downfall of certain principles of public
order, a n d certain theories hitherto accepted as such (e.g. the freedom
of labour and industry) can no longer be placed in so important a
position. I t is proposed only to mention a single one of these
provisions, b u t one so important as to be likely to have a preponderating influence on the future action of industrial associations. T h i s
is t h e provision respecting " the exclusion of non-trade unionists ".
T h i s clause has been judged legal by several courts, and by the
Court of Cassation, provided that the expulsion pronounced is limited
to a certain period of time and place and t h a t it does not aim a t
prejudicing the position of the excluded workers 2 .
Whereas — says notably the court of Douai — freedom of labour and
the liberty of the worker to join or remain outside an association must
be respected and whereas it is the duty of the court to maintain these
principles ;
it is none the less true that these liberties, however precious they
may be, are of necessity limited by the principle of the freedom of
agreements, provided that these are neither contrary to public order nor
morals ; that there is no doubt that the clause on compulsion would be
illegal if employers had pledged themselves for an unlimited period not
to use their right to choose their staff outside the workers affiliated to
the trade unions with which they are in relation ; that the clause, instead
of being general and absolute is limited as regards both time (six years)
and place.
T h e Court of Cassation accepted the decision of the Douai court
in the following sentence :
1

See Civil Tribunal of St. Nazaire, 21 July 192a (D., 1925, I I , i,
and note Pic). For further details see the article by Paul Pic, International Labour Review, Vol. XII, No. 1.
2
Civil Tribunal of Lille, 28 November 1912 ; Court of Appeal, Douai,
13 June 1913 ; Cass, civ., 24 October 1916 (S., 1920, I, 17). Note by
BONNECASE criticising the judgment as contrary to the principle of the
freedom of labour and to section 7 of the Act of 1884 on industrial associations.

FRANCS

*53

If, according to section 12 above mentioned (the section providing
ior the exclusive employment of trade unionists), the employers pledged
themselves to engage their workers only from a special class of wage
earners, athus renouncing their right to select their staff in all liberty,
this surrender, purely temporary and not aiming at prejudicing the other
workers, was not contrary to the provisions of the Act of 21 March 1884 l .
The importance of this decision is obvious. If this judicial
theory spread and were definitely recognised by the Joint Session
of the Chambers of the Court of Cassation, it would allow the
industrial associations to exercise full control over non-unionists 2.
The increased prerogatives of intervention in the conclusion of
collective agreements and in the supervision òf their exact enforcement
entail, as a counterpoise, a certain number of responsibilities for
industrial associations. Article 31(5) of the Labour Code (Book 1,
Chapter II) states :
Groups of employees or employers, bound by a collective labour
agreement, are required to abstain from all action likely to compromise
its loyal fulfilment. They are guarantors of its fulfilment only to the
extent laid down by the agreement itself.
It may be asked whether this responsibility is not to a certain
extent platonic. In order that action against defaulting members be
efficacious it is essential, as stated by Mr. G. Scelle 3 " that it should
be backed by proceedings against the association of which they are
members, and that the association should be bound by the act of
its members, and responsible. . . . Does the Act hold associations
parties to the agreement responsible for the acts of its members ?
As a rule, no. Collective signatories or parties are, in the absence
of contrary provisions, responsible only for their personal actions.
They may not be considered responsible for its fulfilment by their
members unless they have agreed to accept this responsibility by a
special clause inserted in the agreement. Indeed, the law could
hardly saddle associations with a responsibility which was not accom1

Quoted by Barthélémy RAYNAUD in Le contrat collectif en France,
pp. 224 et seq.
2
See clause on the non-dismissal for striking (Cass, civ., 24 November 1Q14 (D., 1918, I, 41) ; clause on the preferential employment of
workers who have taken part in a strike [Douai Court, 25 June 1913
(Recueil Douai, 1913, 257)] ; and clause on employment of non-unionists
[Cass. Civ. 9 March 1915 (S. i6, I, 72)] judged legal in a special
hypothesis.
3
Droit ouvrier, p. 67.

154

FREEDOM OF ASSOCIATION

panied by the necessary authority. Actually the enforcement of
collective agreements depends upon the good will of industrial associations, for although they are forbidden to do anything of a nature
likely to compromise its loyal fulfilment, this is an obligation too
vague to be efficiently insisted on, and one which, after all, is based
merely on good faith. "
Nevertheless, jurisprudence has endeavoured to secure the
respect of legally constituted collective agreements by making a
distinction between a strike or lockout which aims at promoting the
loyal fulfilment of the agreement, and which is therefore considered
legal and exempts the association from all responsibility, and a strike
or lockout which, on the other hand is declared despite a collective
agreement signed for a definite period in accordance with the Act
of 25 March 1919 and which is therefore considered as an abuse,
rendering the leaders and the associations promoting it liable to be
made responsible '.
Up to the present, convictions under the latter heading have
been purely a matter of form.. If a different attitude were to be
adopted in future, and if the capital of the associations were to be
held pledged according to principles of common law (section 2092 of
the Civil Code) for all damages caused directly or indirectly, would
not the financial stability of the industrial associations be seriously
shaken 2 , and would not, in consequence, the whole system of collective agreements, which is founded on the existence of firmly
established organisations, run the risk of collapsing ?
In view of these contingencies, there is a general preference to
seek the solution of the question of the responsibilities of industrial
associations in the amicable settlement of labour disputes by conciliation and arbitration.

See Civil Tribunal of St. Nazaire, 21 July 1922 (D. 1925, 2, I), and
District Tribunal of Mulhouse, 28 June 1923 (D. 1925, 2, I and note by
Paul Tic).
5
It will be recalled that the Act of 12 March 1920 on extension of
the civil capacity of industrial associations, while authorising the associations to increase their capital, refused to extend exemption from
distraint to the resources of the associations as a whole. Cf. English
Legislation, Act of 21 December 1906, " Trade Disputes Act, " which
relieves the trade unions from all penal and civil responsibilities in
connection with strikes.

FRANCE

155

CO-OPERATION IN THE SETTLEMENT OF INDUSTRIAL DISPUTES

Ever since 1892 legislators have done their best to provide parties
at variance with amicable methods for the settlement of industrial
disputes. Without going into a detailed discussion of the machinery
of the Act of 29 December 1892 on voluntary conciliation and arbitration in regard to collective disputes between employers and workers,
a brief survey will now be made of its main features.
The two essential features of the 1892 Act are that it lends
itself to the settlement of all disputes, and that it imposes no obligation on the parties concerned to take proceedings and to follow the
procedure proposed. It is based on two institutions, conciliation
committees in the first place and, in the event of their failure,
arbitration committees.
The conciliation committee is composed of equal numbers of
representatives of the parties in dispute, who are chosen by these
parties. When a strike is called, the conciliation committee is immediately convened by the local magistrate, who must-be present at
the deliberations of the committee and hold himself at the disposal
of the parties for the purpose of directing the debates, but who has
no deliberative status. If an agreement is reached, a record of the
proceedings is made and signed by the delegates present, this record
being, in fact, equivalent to a collective agreement. If no agreement
is reached, the magistrate calls on the parties to appoint their respective arbitrators or a common arbitrator, but as arbitration is as free
from compulsion as conciliation, both parties are free to decline this
proposal. Once, however, arbitration procedure is agreed upon, an
award must be given. Where the arbitrators themselves fail to agree,
they may nominate an umpire, and in default of an agreement in the
choice of such umpire, the president of the civil court proceeds to
nominate one who has the right to give a casting vote. A record of
the proceedings and the final award is forwarded for filing in the
registry of the justice of the peace. Thus was it hoped to establish
in time an accepted system of procedure which would be equivalent
to the introduction of actual measures of labour legislation.
The authors of the Act of 1892 did not consider it opportune to
attach legal penalties to the decisions of conciliation and arbitration
committees.
The system whereby fines are imposed seems vain when it is
applied to workers without resources, and legislators were loath to

156

FREEDOM OF ASSOCIATION

punish non-compliance with the decisions of the arbitration bodies
by fines or corporal restraint, which, moreover, would have been in
contradiction to the optional character of the Act. The only
possible pénalités were of a moral order, and consisted in the posting
up of the records of the proceedings and awards given, in order that
public opinion might judge the attitude of the parties concerned.
The Act of 1892 does, not appear to have had the results that
were expected '. Some lay the blame for this on the optional character of the Act and the absence of all penalties, while others condemn
a system which comes into force only after the strike has begun,
instead of preventing it. Even if the Act were amended to give
satisfaction on these different points, it would still seem to have a
congenital failing, which lies in the fact that the legislators, faithful
to the liberal principles of the Act of 1884, refused to base its
structure on the permanent organisation of industrial associations
which alone would have been able to offer the necessary guarantees.
It is therefore not astonishing that the desire to associate the
question of the settlement of industrial disputes with industrial
organisation has inspired the whole series of legislative measures
placed before Parliament since 1892. Such, indeed, was the intention of the labour code of Mr. Groussier (Articles 840 et seq.), which
tended to combine compulsory arbitration with strike organisation
by the introduction of a system of voting whereby the will of the
majority would be imposed on the recalcitrant minority 2 .
The organisation of the working classes by the institution of
shop delegates in the industrial and commercial establishments
employing at least 50 workers, the regulation of stoppages of work
through the introduction of compulsory and periodically renewable
ballots to be taken prior to all strikes, the introduction of arbitration
procedure exercised by the competent sections of the Superior Labour
Council, and the safeguarding of decisions taken by imposing certain
industrial penalties (ineligibility to the Conseil des Prud'hommes)
in cases of non-compliance were still the main features of the Mil1

See Publications of the Ministry of Labour, Statistique des grèves
et des recours à la conciliation et l'arbitrage depuis iSqo à 1Q22. Of the
177 collective agreements in 1924, of which 47 were concluded after a
strike, only 5 were based on the Act of 1892. Bulletin du Ministère du
Travail, 1925, p. 139.
a
Labour Code, Groussier, 13 June 1898. (Ch., Doc. Pari., No. 33)
and motion of P. Constans, 4 July 1906 (Ch., Doc. Pari., No. 184).

FRANC«

»57

lerand Bill respecting the amicable settlement, of collective disputes l .
This Bill was naturally to lead to compulsory arbitration in State
industrial establishments and in private concerns each time that
employers accepted its principles.
The logical conclusions
implied by this system were the generalisation of collective agreements
and the standardisation of conditions of labour in the same trades and
in the same district.
The Government took up this Bill in 1920 2 , introducing several
amendments in it. In place of the system whereby compulsory
arbitration had previously to be accepted by both parties, the new
draft included measures which subjected private industry to
compulsory conciliation, but left arbitration itself optional. Again
the Government draft — and this is the most important amendment
— no longer limited compulsory arbitration to State industrial
establishments, but extended it to all private concerns considered
indispensable to the economic and social well being of society as a
whole, such as railways, mines, undertakings engaged in the distribution of water, gas and electricity, hospitals, etc. Contravention
of these provisions entailed liability to certain real penalties.
The authors of this Bill had imagined they could take advantage of certain precedents. Under the pressure of the necessities of the war, a rapid conciliation and arbitration procedure,
compulsory for private establishments, factories and concerns
engaged in the manufacture of armaments, munitions and articles
of war, had been introduced by the Decrees of 17 January and 7
September 1917, and this had virtually resulted in the abolition of
strikes and lock-outs. But it was soon to become evident that
measures necessitated by force majeure in time of war, might, in
normal times, be obstacles to social pacification. This Bill, which
implied without any obvious recompense the sacrifice of the right
to strike or to lock-out for a large number of persons, roused at one
and the same time the almost unanimous opposition of workers'
circles and that of a large part of the employers. For this reason
the French Superior Labour Council, at its session in November
' Bill on the amicable settlement of disputes relating to conditions
of labour, 15 November 1900 (Ch., Doc. Pari., No. 1973). The Bill was
placed before Parliament the second time on 12 June 1906 (Ch., Doc.
Pari., No. 14. Colliard report (Ch., Doc. Pari., No. 1418).
3
9 March 1920 (Ch., Doc. Pari., No. 489); Lafarge, report, 30 July
1920 (Doc. Pari. No. 1478).

1¿6

FREEDOM OF ASSOCIATION

1924, contented itself with proposing a draft Bill, which made
measures of conciliation compulsory in some cases, but left arbitration entirely voluntary \
In the opinion of many the change from volition to compulsion
in collective disputes will never be accomplished by a simple legislative measure, however strongly it be justified by law. It is feared
that parties will refuse to submit to the decisions of an arbitrator,
however high his technical competence and impartiality, every time
vital interests or interests judged to be such, form the subject of
litigation. All criteria which might be suggested to them as a guide
for the judge-arbitrator in the consideration of his award (equity
or the superior interests of the nation) appear to them to be lacking
in precision, and to admit of as many interpretations as there are
interests in play. They consider that it is impossible, in regard
to collective relations, to replace violent action by a labour jurisdiction unless identity of interests and unity of action can be
established in fact between the two parties. In such manner do
these persons set forth the question of workers' participation in the
profits and the management of undertakings.

T H E INDUSTRIAL ASSOCIATIONS, P R O F I T

SHARING

AND CO-PARTNERSHIP

The claim advanced by the trade unions for an actual share in
the profits and management of undertakings constitutes one of the
most important items of the programme of trade unionism. It might
even be said that since the war, the action of the workers' organisations has centred round this claim, which is considered by them to
be essential. With the exception of some few cases of partial
realisation, however, it may be said that the question as a. whole
remains unsolved. Nevertheless, attention must be drawn to several
Acts which have endeavoured, if only to a limited extent, to
introduce the idea. The first of these is the Act of 1910 on mines,
which agrees to their concession for a limited period and on condition only that a part of the profits be paid back to the workers,
who are to remain free to dispose of this offer as an individual
payment or by the purchase of shares, or as a payment to the

Bulletin du Ministère du Travail, 1924, pp. 344 et seq.

FRANCE

autonomous miners' fund. The Act of 12 November 1921 on the
reorganisation of the railways, likewise institutes profit sharing in
favour of railway employees grouped together in a staff commercial
co-operative society ; the delegate of this society is eligible for
membership of the Superior Railway Council. In a field which
lends itself admirably to the experiment, the Act of 18 December
1915 on productive co-operative societies had already introduced
profit sharing, which extended even to workers engaged by a society
after its introduction. These legislative measures respecting profit
sharing gave rise to the question of co-partnership, but did not
broach it in a direct fashion.
On the other hand, the Act of 28 April 1917 on limited
companies based on labour co-partnership was intended to associate
the wage earners with the management of the undertaking. For
this purpose, workers holding shares are required to form a workers'
co-operative society, which has the right to delegate several of its
members to the management board of the undertaking. The system
introduced by this Act did not meet with the success expected.
Essentially voluntary and based on single establishments, it met
with opposition from the employers and workers alike ; employers
were suspicious of the workers' participation in the management
of the undertaking, while the workers considered that this
supervision should only be exercised on a national basis, under
the control of their central organisation. It is just this latter
idea which is at the base of workers'-control as it is advocated nowadays. A partial attempt to realise this had been made during the
war, when, in virtue of the Decree of 17 January 1917 on the settlement of industrial disputes, and of the regulations published by
the Ministry of Munitions on n June 1917, workshop delegates
chosen by the workers of the undertakings, had been authorised to
supervise the improvement of conditions of labour, and to take
steps to prevent strikes. But it is to be noted that these shop
representatives exercised their powers as delegates of the labour
employed in the undertaking, and not as trade union delegates.
Since then the question has remained stationary. Conscious of
the economic and technical difficulties to the introduction of such
a system, the C.G.T. confines itself for the moment to calling for
the social control of undertakings. At its Congress in 1923 the
Confederation defined as follows the branches to which supervision
should extend : the engaging and dismissal, of workers, control of

lOO

FREEDOM OF ASSOCIATION

the enforcement of collective agreements (wages, hours of work,
discipline, penalties, etc.) and enforcement of social legislation.
The resolution adopted points out that in limiting their claims to
these three heads, the wage earner will be certain to find in their
midst wise and competent elements to assure the success of this
initial and essential system of supervision.
§ 2. — Collaboration with the Public Authorities
A brief description is given below of the indirect part played
by the industrial associations in the preparation of labour legislation
through their representation on a large number of consultative
bodies, and of their direct collaboration with the legislative
authorities and in the enforcement of labour legislation.
DRAFTING OF LABOUR LEGISLATION

From the beginning of the present century the French Government had felt the need of surrounding itself with technical advisers,
but Government appeals to their competence have mainly been of
an individual character. The industrial associations however, as
they grew and expanded, endeavoured to attach to themselves, or
to form, a select body of technical experts in the persons of their
directors, and these are now destined to take their place in the
counsels of the Government. The collaboration of the associations
with the authorities extends both to economic and labour questions.
In most cases appeal is made to both sides, who are represented in
a joint manner. In certain matters, however, in respect of which
employers' interests appear to be predominant, employers' organisations alone are represented.
Initiated prior to the war by occasional and desultory consultations, this collaboration has nowadays taken on a permanent
and regular character. The necessity for such collaboration has
been officially admitted in the report of the Ministry of Commerce
by a resolution conceived in the following terms : " That permanent
and regular collaboration between the industrial associations and
the public authorities be established for the drafting of all legislative
measures of a social, industrial, commercial or fiscal character,
previous to their promulgation. " *
• MINISTÍ-RE DU COMMERCE.: Rapport général sur l'industrie fran
çalse, icio, Vol. Ill, p. 427.

PRANCE

IÓI

The aims expressed in this resolution have been widely realised,
both in economic and social spheres. ¿Some examples of an
economic nature are given below. In the interests of the technical
study of production the Act of 29 December 1923 providing for the
foundation of the National Office of Scientific Research laid down
that a part of the members of this institution should be elected by
industrial, agricultural, and workers' associations. The administrative regulations in connection with this Act, which were issued in
the form of a Decree dated 16 January 1924, state that of the 116
members of the Office, 30 shall be nominated by industrial groups
and 12 by trade unions. Similarly, the rules of the Permanent
Standardisation Committee, founded by Decree of 10 June 1918,
make special provision for the collaboration of the industrial organisations.
Customs questions have always held quite a special interest for
employers' associations, as the establishment of tariffs has the most
far-reaching results on conditions of labour and competition. The
whole history of tariff policy may be said to bear signs of intervention on the part of the employers' groups. Employers' associations
have taken part to an ever-increasing extent in investigations and
enquiries preceding tariff reforms, although their intervention was
at first unofficial. Since the war this unofficial collaboration has
become official, and their representatives now sit in the permanent
Financial Readjustment Committee (commission permanente des
valeurs) '.
Employers' interests are also represented and safeguarded in all
matters relating to commercial expansion. When the regulations
concerning foreign trade advisers were amended by the Decrees of
6 March 1921 and 5 and 13 August 1922, a considerable number of
directors of employers' associations were nominated to these posts.
Although the efforts made by the industrial associations to
reform the Superior Council of Commerce and Industry and to obtain
a larger share in its deliberations have not so far succeeded, their
delegates sit in the majority of the consultative technical commissions and committees attached to the Ministry of Commerce, and it
has become a Government habit to obtain collaboration of the
organised groups in the preparation of legislative measures which
are of direct interest to them.
1

See Act of 9 January 1920, Journal officiel, 11 January 1920.

Freedom of Association

1Ó2

FKEEDOM OF ASSOCIATION

A particularly happy realisation in this order of ideas was the
foundation by Decree of 17 January 1925 of the National Economic
Council, a body attached to the Office of the Prime Minister. It is
well known to what extent the foundation of an institution
co-ordinating the whole of the nation's activities met the desires
of the industrial organisations. This council, which brings
together representatives of the population and the consuming
public, labour in its various forms and capital, represents all the
live forces of the nation, and, to a certain extent, may be considered
as satisfactory answer to the efforts made in this direction by the
workers' trade union movement.
The functions of this institution were described as follows in
a report made to the President of the Republic :
The creation of this institution is justified by the complexity of our
economic and social life, which is such that the different Government
departments whose duty it is to develop and direct the economic activity
of the nation, have no adequate link one with another. Moreover,
economic interests are so vitally important that the Government and the
public authorities must at all times be in a position to take advantage
of the advice of persons who, in addition to^ possessing special and
technical experience, can be regarded as representing the opinions of the
big organisations which return them to the council.
The existence of this advisory body will enable the Government to
pursue a constructive policy and to avoid the ever-present danger of
detached and inco-ordinate decisions, having regard to the fact that the
various economic forces of the country are mutually dependent and
complementary. . . . It should also form a valuable centre of economic
information for the use of Government departments, Parliament and all
who are concerned *.
Some information will now be given concerning the collaboration of industrial associations in social affairs.
The idea of consulting the industrial associations with regard to
drafting of labour legislation goes back to the beginning of the
twentieth century. The Decrees of 17 September 1900 and 2 January
1901 given by Mr. Millerand, then Minister of Commerce, first set
up labour committees, which were required, in addition to their
duties in connection with the settlement of labour disputes, to give
their opinion on all labour questions, to take part in official enquiries
and to watch wage movements in certain definite areas. The most
striking feature of these committees was their structure, as their
members were elected in equal numbers on both sides, not by the
1

See text of the Decree and notes thereon : INTERNATIONAL LABOUR
Industrial and Labour Information, Vol. XIIT, pp. T47-151.

OFFICE,

FRANCE

IÖ3

masses concerned but by the associations themselves, which were
thus made the official representatives of the various trades. At that
period, this decision roused much hostility in Parliament, which
declared it to be in contradiction to the private and individualistic
character of the Act of 1884. Moreover, the committees themselves
met with disfavour, both in workers' and in employers' circles. For
these reasons the Act of 17 July 1908 respecting the introduction of
consultative labour committees, which repeated and rendered more
general the ideas contained in the Millerand Decrees, has virtually
remained a dead letter.
Since that time, however, the number of these joint committees
has multiplied '. But with a view to getting the best results from
their intervention in labour matters, the industrial associations have
bent their efforts mainly towards obtaining access to the Supreme
Labour Council, a department which is attached to the Ministry of
Labour and directly responsible for the conception and drafting of
social reforms. This council, which was set up by a Decree dated
22 January 1891, included at the outset only ex officio members and
persons nominated by Decree. The total absence of direct representatives of the industrial associations subjected this committee to
great criticism in labour circles and hindered its working. As a
result of pressure brought to bear by the associations, its constitution
was fundamentally amended by the Decrees of 1 September 1899,
27 January 1904, 24 June 1907, 30 April 1909, 1 July 1913,
22 April 1919 and 31 January 1921. At present the Supreme Labour
Council includes 78 members, who are divided up into three groups
as follows : (1) 32 employers' delegates, of whom 22 are elected by
ballot by the chambers of commerce and the consultative chambers
of arts and crafts (each delegate corresponding to a separate occupational group); two agriculturists nominated by the Superior
Agricultural Committee, and eight employers, members of the
probiviral courts (conseil de prud'hommes) ; (2) 32 workers' delegates, including 8 prud'hommes and 24 workers or salaried employees
' Mention will be made here only of the most important of these
bodies : joint committees for the enforcement of the Act of 10 July 1915
on home work ; research committees on the cost of living set up by
Decree of 19 February 1919 ; joint wages committees in the mining
industry. (Circular of 24 September 1918); National Labour Committee,
Decrees of 3 February 1920 and 7 April 1925 (for more complete list see
Paul Pic, op. cit. p. 121.)

IÓ4

FREEDOM OF ASSOCIATION

elected by a uni-nominal ballot by the legally constituted associations
of workers and salaried employees, these delegates being divided
into 24 industrial or commercial groups to correspond with the
employers' groups ; (3) - 14 members chosen from representatives
of the Chamber of Deputies, the Senate, and technical and learned
institutions.
A glance at the multifarious duties of the Superior Labour
Council, whose part in the preparation of social legislation is usually
predominant, is sufficient in order to appreciate the value of this side
of the association's activities.
From this brief description it will be seen that the collaboration
of the industrial associations is assured in all the more important
parts of the machinery of social administration. Nevertheless,
important as it is, this collaboration is still of an advisory character,
the associations being no more than auxiliary assistants of the
legislative and administrative authorities.
The actual part taken by the industrial associations in the
preparation of labour legislation is described below.
PARTICIPATION IN LEGISLATION

Two distinct periods mark the development of this aspect of the
activities of the industrial associations. During the first period the
authorities associated the industrial associations in their work by
entrusting them with the drafting of certain special clauses in the
laws and decrees. During the second period, which began during
the war, the authorities confined themselves to supplying the framework, but allowed the associations to draft the substance of the law.
The difference in the two methods is not merely a matter of degree,
— it is also a matter of principle. In the first case it is a question
of technical collaboration, in the second, the industrial associations
are substituted, to a certain extent, for the legislative authorities.
The three Decrees of 10 August 1899 respecting the conditions
attached to the award of contracts for public works, fall within the
first phase. As is well known, these Decrees forced contractors
whose tenders were accepted, to observe certain clauses bearing on
conditions of labour, such as current wage rates, hours of work, the
employment of foreign workers, weekly rest periods, etc. Section
3 states that the verification of current wage rates and the normal
duration of hours of work is to be made by officials of the adminis-

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prative services, who, in this work are required to take into account
in every possible way, t h e ' e x i s t i n g agreements between employers'
and workers' associations of the locality or district. W h e r e there
are n o such agreements, these officials must request the advice of
joint committees composed of equal numbers of workers a n d
employers, and obtain all requisite information from industrial associations, probiviral courts, engineers, provincial and municipal
architects, and other competent persons. Non-compliance with these
clauses is punished by m a k i n g deductions from the wages bill, from
the sums due to the contractor or from his caution and by the
temporary or definite black-listing oí m e contractor guilty of repeated
contraventions of the stipulated conditions of labour (sections 4
and-5)1.
Similar regulations are to be met with in the Act of 10 July 1915
(Labour Code, Book 1, Chapter I I I , section 30-42) respecting a
minimum wage for home workers in the clothing industry. I n virtue
of section 32 E of the Labour Code, the labour committees a r e .
entrusted with fixing this minimum in accordance with the average
wage and skill of shop operatives in the same trade. I n cases of nonintervention by the labour committees — a contingency which
frequently arises -^- their prerogatives devolve on two institutions, •
namely, the wages committee, formed of the magistrate (juge de
paix, two or four workers and women workers, and an equal n u m b e r
of employers ; and the valuation committee, formed on the same
lines but whose members are appointed by the president and vice
president of the local probiviral court, or in their absence, by the
prefect (section 33 F ) . T h e most characteristic feature of this Act
is that the enforcement of its provisions is entrusted directly to the
industrial associations. F o r this purpose the Act, besides permitting
individual legal action to be taken, authorises all legally constituted
societies and notably industrial associations to take collective legal
proceedings without having to show prejudice (section 33 K ) .
T h e second form of intervention by the industrial associations
in labour legislation was inaugurated by the Act of 11 J u n e 1917
on week-end rest in the clothing industry. T h i s Act merely lays

The application of this Decree was extended during the war to
private industries engaged in war work (see the Dalbiez Act 1917 ;
Circular of the Ministry öf Shipping 10 February 1926, Bulletin du Ministère du Travail, 1917, p. 98).

166

FREEDOM OF ASSOCIATION

down the principle of Saturday afternoon rest for that industry.
As to substance, it states that administrative regulations shall be
based, whenever they are required, on agreements concluded between
district employers' and workers' organisations, where such agreements
exist.
This practice was generalised (and its intrinsic value was proved
by the matter regulated) by the Act of 23 April 1919, which
sanctioned the principle of the eight-hour day (Labour Code,
Chapter 2, Part 1, Book 1, sections 6-8). Section 7 leaves to public
administrative regulations the duty of determining the conditions
of application of the Act, be it by trade, industry, commerce, or
by occupational groups, for the whole territory of France or for different regions. These regulations are drawn up officially or at the
request of one or several of the national or regional workers' or
employers' organisations concerned. In any case the workers' and
employers' organisations must be consulted, being required to give
their opinion within one month. Amendments to the regulations
are made in the same manner. The regulations must be based on
the agreements concluded between the national or regional workers'
and employers' organisations concerned wherever such agreements
exist. The imperative manner used by the legislator undoubtedly
proves that in this instance the agreement is an essential element in
the preparation of the law.
This principle was further upheld by the Act of 29 December 1923 on weekly rest (Labour Code, Book I I , sections 30-51).
In order that the prefect may order the closing of undertakings in
a given trade, states in substance section 43 A, an agreement must
previously have been concluded between the workers' and employers' associations of the trade concerned.
These enactments, therefore, all oblige the legislative authorities to take account of the agreements concluded between the organisations of the two parties. The question has, however, arisen as to
what extent the administrative authorities are bound by these contractual conditions, it being obvious that the efficacity of the whole
procedure depends on the reply made to this question. Raised
for the first time during the discussion of the Week-end Rest Bill,
it was decided in two different ways by the Chamber of Deputies
and the Senate. The opinion of the Chamber was that " public
administrative regulations must confine themselves to ratifying or

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107

sanctioning such agreements where they exist " 1. The Senate, on
the other hand, desired to give the legislative authorities some power
of amending agreements, and stated that " public administrative
regulations shall take into account all existing labour agreements,
as this is a method likely to facilitate the enforcement of the Act. It
would, however, be neither desirable, reasonable, nor legal to decide
to ratify them. The agreements between the two parties are concluded
of their own free will, and the legislative authorities, in referring to
them, will define the details necessary for the enforcement of the Act,
while taking into account the labour requirements of each trade and
each district " 2 . This would also appear to be the opinion of the
Government, as expressed in the following quotation : " Public
administrative regulations shall, of course, take into account the
agreements concluded between workers' and employers' associations,
but these agreements are in no way indispensable for the enforcement
of the A c t 3 .
When the eight-hour day Bill was going through Parliament the
same policy was again advocated in a circular issued by the Minister
of Public Works to the Prefects on 27 May 1919, which stated :
" These regulations shall be drafted after consultation with the
workers' and employers' organisations concerned ; their opinion must
in every case be asked. The legislator has even shown his preference
for preliminary agreement between these organisations, but this
agreement is not binding upon the legislative authorities. " Brought
before the Council of State in connection with the charge of abuse
of power lodged against certain public administrative regulations
which modified an industrial agreement, the question was again
decided in favour of the possibility of revising the intervening
agreements 4 . It should, however, be mentioned that, .in fact, the
regulations in question had been replaced by another Decree, which
gave full satisfaction to the plaintiffs. It is thus an accomplished
fact (the theoretical discussion is of less importance here than actual
1

Speech by Mr. Léon Bourgeois, Minister of Labour, 29 May 1917
(Journal Officiel, Chambre, 1917, pp. 1428-1429) and the Lauche Report
(Ch., Doc. Pari. 1917, p. 698).
2 Report by Mr. H. Chéron (Senate, Doc. Pari. 1917, No. 188,
P 259-)
3
Circular of 29 November 1917 (Bulletin du Ministère du Travail,
I9I7. P- 47-)
* See Council of State, 27 March 1925 (Dalloz, hebdomadaire, 1921,
P- 313)-

168

FREEDOM OF ASSOCIATION

practice) that agreements between employers' and workers' associations have, as a general rule, served as a foundation for the drafting
of administrative regulations, which fact transforms the agreements
from purely contractual instruments into legal acts having all the
consequences attached to such acts. One of these consequences lies
in the fact that the application of these administrative agreements
extends to all members of the trade concerned whether a party to the
agreement or not.
An examination of the powers conferred on the industrial association in connection with the enforcement of labour legislation further
strengthens and confirms this conclusion.
COLLABORATION IN T H E

ENFORCEMENT OF LABOUR

LEGISLATION

French legislation does not provide for any general and
permanent collaboration by the industrial associations with the labour
inspectors, except in the case of the mining industry, where delegates,
nominated by the associations and elected by the miners in accordance
with the Act of 1890, although it should be said that this institution
was at the outset coldly received by the trade unions, which feared
that it might pass out of their control. Nevertheless, the Ministerial
Circular issued on 19 January 1900 by Mr. Millerand, then Minister
of Commerce and Industry, requested the divisional factory inspectors
to solicit the collaboration of the workers' organisations, unions
and federations alike, in their work of supervising the enforcement
of protective labour legislation *.
1

Basing themselves on this precedent, the French Section of the
International Association for the Legal Protection of the Workers adopted
in 1909, after discussing a report of Mr. Lorin on " Collaboration of the
Organised Workers in Factory Inspection " the following two resolutions :
(a) That the Minister of Labour, in confirmation of his previous
circulars, orders the factory inspectors to secure the regular collaboration
of the workers' organisation for the detection of infringements of the
laws regulating the conditions of labour, and to include detailed.information on this collaboration in their annual reports.
(b) That the factory inspectors be required to bring to the notice of
the workers' and industrial organisations concerned in their districts all
derogations immediately these are authorised, and to keep a note of the
observations submitted to them by these organisations (see Report of
Mr. Lorin in the pamphlet of the International Association for the Legal
Protection of the Workers, Series 5, No. 5.)

IOC

FRANCE

A t t h e present time a movement is gaining ground among t h e
dockers, building operatives a n d railwaymen in favour of a system
similar to that practised i n the mining industry, which will allow
the workers in these trades to collaborate in t h e supervision of the
strict enforcement of t h e laws on hygiene, safety a n d factory inspection \
I n addition to their direct co-operation in t h e work of factory
inspection mentioned in t h e above examples, industrial associations
also have wide powers in connection with t h e enforcement of social
legislation. I t is in this domain that their right, sanctioned by the
Acts of 25 March 1919 a n d 12 March 1920, to take proceedings in
respect of infringements of labour legislation can be best used. I t
may even be said that in this respect they assume t h e functions of
a ministry of social legislation.
A s . a result of t h e numerous
proceedings taken by t h e associations in t h e ordinary law courts
and t h e administrative civil law courts, a n d t h e decisions there
upon given, t h e following conclusions of direct interest to t h e study
may be made :
(1) in cases of contraventions of labour laws, t h e industrial
associations are entitled to take legal proceedings even in
favour of non-members without having to show that they
have been granted a power of attorney from- such persons 2 ;
(2) agreements concluded between t h e most representative
workers' organisations extend de facto t o all members of
the trade concerned 3 •
(3) Industrial associations m a y plead abuse of power before
the Council of State in respect of public administrative
regulations which tend to modify agreements between
employers' a n d workers associations 4 .

See

INTERNATIONAL LABOUR

OFFICE :

Industrial

and

Labour

Information, 25 Dec. 1924.
2
See Trib. Corr. Seine, 27 Nov. 1924 {Gaz. Pal., 1925, I, 120). This
decision declared admissible all action by the Associations in favour of
non-unonist workers for contraventions of the Act on Night Work in
Bakeries.
a
See Cass, critn., 8 May 1925 (D. 1925, I, 217). This decision stated
that all public administrative regulations issued after an agreement
between employers of workers' organisations for the enforcement of the
Act on Weekly Rest, are also binding for employers working on their
own account.
* Council of State, 19 Dec. 1924 (D., 1925, 3, 31).

170

FREEDOM OF ASSOCIATION

In truth, legislators and judges would appear to join hands in
infusing a new policy into the traditional regulations respecting the
output of labour.
This policy becomes evident from the fact that, in economic
and social relations (and in this field alone), the principle of freedom
of labour — the economic version, of the principle of individual,
political and spiritual liberty — hitherto considered as a foundation
stone of French public law, is subordinated, in all these cases, to
the rights of organised associations. The result of this new concept
tion is to make the industrial associations — the essential elements
in this evolution — the direct champions of the freedom of association and the pioneers of a new conception in legislative practice.

CHAPTER IV
LEGAL LIMITS OF FREEDOM OF ASSOCIATION

The exercise of the right to associate, with all its logical
consequences and in conditions which ensure its full efficacy,
naturally in the course of things runs foul of other liberties of a
general and individual character, such as freedom of labour and
freedom of contract. As all these various forms of liberty would
seem to be equally essential and inviolable, it is interesting to
ascertain which must give way to the others.
In face of a possible clash between freedom of association and
the individual right to work, French legislation has nip to the
present been content to deal with specific cases and to find practical
solutions under penal law, civil law and administrative law. These
solutions will now be examined. Since, however, this is a question
of the application of provisions of common law to individuals and
groups of an inorganic character as well as to legally constituted
associations, no attention will be paid either to the details connected
with these decisions or to the criticisms to which they give rise.
All that will be done will be to show to what extent they are of a
nature to hinder the free development of the right of freedom of
association. Any other method would necessitate a combined study
of collective agreements, the legality of the strike, the right of assembly and manifestation ; questions which go beyond the limits
v
of the present study.
\
§ 1. — Limits set by Public Law
L I M I T S SET BY PENAL L A W

The Offence of Interfering with the Freedom of Labour and its Penal
Consequences
Legal penalties attached to the collaboration of the industrial
associations in the conclusion and renewal of collective agreements
have been considerably restricted in the course of time.

I72

FREEDOM OF ASSOCIATION

Prior to t h e Act of 25 May 1864, a simple understanding between workers and employers with a view to influencing conditions
governing the supply of labour and the execution of work was
prohibited as a form of combination (sections 414 a n d 415 of the
original text of the Penal Code). Similarly, section 416 forbade
the blacklisting of workers, but whereas section 416 was definitely
repealed by the Act. of 21 March 1884, sections 414 and 415 a s
amended by the Act of 1864, have so far been detained, notwithstanding all,efforts for their abolition.
W h a t is the real m e a n i n g of these Articles ?
W h e n the legislator of 1864 abolished the offence of combination
which, according to the original text of sections 414 and 415,
consisted, both for workers and employers, in the simple fact of
agreement as to measures to be taken to influence conditions of
labour, the remuneration of labour or its suspension, he still wished
to maintain rigorous penalties, out of all proportion to those attached
to similar offences, against all acts calculated to enforce obedience
to orders in cases of stoppage of work.
T h e s e acts are regarded as attacks on the freedom of labour,
and constituting a special delict which is quite distinct from the
former delict of combination. In the first place it does not presuppose any preliminary agreement or any collective understanding;
it may emanate from single individuals w h o need not necessarily
be either employers or workers. T o the penalties already mentioned
however, section 415 adds police supervision (replaced by prohibition of the right to remain in a given place, since the Act of
27 May 1885) when such acts are committed as a result of a concerted
plan. W h a t are the conditions necessary to prove the existence
of this special offence described and punished by the revised t e x t s
of sections 414 and 415 ?
(1) It is essential, says Mr. Paul Pic ', " that there be acts of
violence or molestation, intimidation or fraudulent acts. The term
" acts of violence " refers to blows or injury, while the expression
" molestation " covers assault which does not result in injury, including
molestation of a simple character which, under common law. merely
entails ordinary police penalties in accordance with section 605 of the
Code of Brumaire of the year IV. Molestation in the conditions mentioned
in section 414 becomes at once a criminal offence, entailing the penalties
mentioned in the said section. Section 414 leaves the widest possible
latitude regarding the definition of intimidation. In order that intimidation be deemed a punishable offence, it is not necessary, when it is
' Les lois ouvrières.

Part I, Chapter III.

FRANCE

I73

carried out in the interests of a combination, that the conditions
mentioned in sections 305 and 309 of the Penal Code should be present,
that is to say, that the perpetration of written threats or verbal threats
attended by orders or conditions is required. Simple verbal threats,
even attended by conditions, on the part of a member or an association,
are sufficient to constitute the offence provided for in section 414, provided
always that they are of sufficient gravity. On the other hand, civil law
steps in and the disciplinary and criminal penalties provided for in
sections 305 et seq., sections 309 et seq., 400 and 436 of the Penal Code are
applicable when the acts of violence and intimidation have the
character of gravity stipulated in the said clauses. Section 414 therefore
results in increasing rather than diminishing the force of the penalties
incurred.
The meaning of fraudulent action is more elastic than that of the
other offences mentioned. Mr. E. Ollivier, the reporter of the Act of
1864, nevertheless, defined its meaning by surbordinating the existence
of the offence to the presence of the following three circumstances .:
(a) fraud, i.e., an act carried out in bad faith, (b) the use of false pretences to inspire confidence, (c) the use of acts calculated to make an
impression on person whose submission it is intended to force.
. As examples of such acts may be mentioned the spreading of false
news, defamation of character in respect of the managers through the
medium of the press or any other medium ; threatening letters conceived
so as to deceive the recipient regarding the personality and quality of
the sender. It is extremely doubtful, on the other hand, whether the
simple assembly of strikers at the entrance of factories, mines or workshops with the avowed purpose of intimidating non-strikers leaving or
proceeding to work, and the removal of tools from the vicinity of
workshops, can be considered as threats or fraudulent action when the
strikers preserve an expectant attitude and refrain from proffering threats
or acts of violence.
(2) The second condition required to prove the existence of the
special offence mentioned in sections 414 and 415 lies in the aims pursued.
It is essential that the acts mentioned should aim at prejudicing the
freedom of labour with a view to assuring success for an association
which might otherwise meet with a check. Nor is it indispensable that
the aim pursued should be realised ; all that is necessary is an attempt
in the meaning of section 2 of the Penal Code, that is to say, the beginning
of an act suspended by circumstances beyond the control of its author.

Whereas, however, when an association is compromised by acts
of the nature described above, committed by its leaders or militant
members, only its funds m a y be affected ; the leaders may, on the
other hand, either by reason of their official position or their direct
participation in incriminating acts be liable in person to the stipulated
corporal or pecuniary penalties.
T h e opponents of sections 414 and 415 sometimes question the
wisdom of repressing acts of violence or bad faith endangering
freedom of labour. T h e y are especially doubtful, however, as to
whether the means of repression set u p by these sections are not
both useless and dangerous. Acts of violence and intimidation are

174

FREEDOM OF ASSOCIATION

both dealt with in common Law according to their gravity by
sections 309, 310 and 311 of the Penal Code. Section 311, in particular, mentions injuries (wounds, blows or acts of violence which
do not result in more than 20 days' incapacity for work) very
similar to those which section 414 is meant to punish. But, whereas
the penalties mentioned by section 311 include imprisonment of from
six days to two years and a fine of from 16 to 200 francs, those
provided for in section 414 are from six days to three years imprisonment and a fine of from 16 to 3,000 francs. Why is the gravity of
the offence thus increased by the fact of its taking place in connection with the strike ? It is extremely rare, moreover, that judges
inflict more than the maximum penalties embodied in section 311.
Under common law, intimidation is a punishable offence according to sections 306 and 308, which stipulate that the offence
must consist of acts themselves punishable under the Penal Code.
" But, according to section 414, and when there is an attack on the
freedom of labour, the meaning of intimidation becomes much more
wide and vague and includes all illegal acts calculated to inspire
fear of injury in a normal person. "*
It is, however, the charge of. fraudulent action, introduced by the
new text of section 414 which has been most greatly criticised for
its want of precision. " This expression does not figure either in
the Act of 22 Germinal of the year X I , nor in sections 414 or 415 of
the Penal Code of 1810 ; it made its first appearance in the Act
of 25 May 1864. It is to be observed that acts which were exempt
from punishment in a period of severest prohibition became
punishable offences under an Act which was supposed to introduce
liberty ! " 2
In the original draft of 1864, as amended and adopted by the
Council of State, mention was made of " criminal acts ". This
wording, however, met with unanimous criticism in legislative
circles, but the term " fraudulent acts " which was substituted was,
if anything, less precise. " The meaning of fraudulent acts is so
wide ", wrote Mr. Garraud, " that it is possible through the insertion
of these words in section 414 to incriminate the most peaceful associations ".

1
2

BARTHOU : L'action syndicale, p. 277.
Ibid., p. 281.

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A proof of the abuses to which it may lead was given during
the famous Carmoux strike in 1895 :
During the strike the two treasurers of the Committee were arrested,
their houses searched, the funds seized and proceedings taken under
Ariele 414 of the Penal Code and on the ground of fraudulent acts and
attacks on freedom of labour. The proceedings themselves showed there
was no ground for prosecution. The magistrates were thus shown to
have made a mistake in the middle of a strike and at a critical period,
and on the avowal of the Government, and the magistrate in charge of
the case, to have given a false and inexact interpretation to the charge
of fraudulent acts mentioned in Article 414, which had it been maintained
might easily have led to the most serious conflict and the most disastrous
consequences '.
The révisai of legislation respecting industrial associations in
1920 did not lead to the repeal of sections 414 and 415 which had
been so unanimously demanded by the trade unions movement, a
criminologist of the value of Mr. Garraud, republicans of the old
liberal school like Jules Simon, Jules Favre and, more recently
Mr. Barthou, and by Christian socialists like Messrs. Raoul Jay and
Henri Bazin.
The Offence of Interfering with the Freedom of Association
While, on the one hand, limits were imposed on the free
exercise of the freedom of association, a certain number of measures
for the protection of this right have been considered from time to
time, as witnesses the Bill introduced by Mr. Justin Godart, Minister of Labour, on 2 February 1925.
As far back as 13 May 1890, the Chamber of Deputies had
adopted an almost similar measure proposed by Mr. Bovier-Lapierre,
which imposed fines and other penalties on all acts calculated to
prevent a worker from joining or being a member of a trade union a .
This Bill, however, passed back and forward between the Chamber
and the Senate for twelve years, the former voting it and the latter
obstinately refusing to do so.
The text of the Rousseau-Millerand Bill of 14 November 1899,
taken up later by Mr. Millerand himself, who tried to vanquish the

BARTHOU, op. cit., p. 288.

Bill " to suppress attempts to prevent the exercise of the rights
granted by the Act of 21 March 1884 to industrial associations of
employers and workers " (Journal Officiel, 4 March 1886).

176

FREEDOM OF ASSOCIATION

objections of the Senate by giving equal importance to the offence
of attempts t o prevent a worker from joining a union and t h a t of
a t t e m p t s to force him to join it, had n o better effect. I t was Mr. Mill e r a n d ' s t e x t which Mr. G o d a r t got the Cabinet of Mr. H e r r i o t to
approve, although here again there was a repetition of all the
previous objections. Moreover, the partisans of freedom of association declared t h a t this text was a double-edged weapon, more
dangerous for the militant trade unionists than for the employers
opposed to the workers' movement.
Faced with these objections Mr. Justin Godart fell back on a
unilateral text. H i s explanatory memorandum to the Chamber was
couched in the following terms :
By the Act of 21 March 1884 on industrial associations, very energetic
measures for the promotion of social progress had been placed in the
hands of the employers and workers. It is through the organised action
of both sides that the various problems arising out of relations between
workers and employers are settled. Regarded as a source of trouble for
many years, the industrial association is now seen to an ever greater
extent in its true light, that is to say, as an instrument of peace.
It is taking its place more and more in the habits of the people ;
individual relations between employers and workers are being replaced
by collective relations of a more stable, freer and more logical character.
As a rule, it may be said that the right of association is recognised
as an aspect of liberty against which no attack is justifiable. Nevertheless, there are still too many cases where the use of this right provokes
reprisals, the consequences of which are always regrettable.
Doubtless, obstacles put in the way of freedom of association may
result in legal action before the civil courts and in damages being
granted tö the injured party. But this is not enough. Public policy is
concerned with the. free exercise of the privileges granted by the Act of
1884, and the addition of penal provisions to the existing civil sanctions
must prove once and for all the essential character of the principles laid
down by that Act.
Various bills and proposals have been introduced for this purpose
without result, as the evolution of ideas was not sufficiently advanced.
The moment appears to have come for taking up this question again
and, in the interests of social peace, to provide the public authorities
with the means of breaking down the last traces of organised resistance
to which the wider enforcement of the. Act of 1884 may give rise.
It is of course to be understood that the refusal to engage or the
dismissal of a trade unionist by an employer is an offence only when
such refusal or dismissal is based on the fact of the worker being a trade
unionist.
W i t h this purpose in view we submit the following Bill :
Clause 1 : Any person guilty of having hindered or of having
endeavoured to hinder the free exercise of the right to belong to a trade
union legally constituted in accordance with the Acts of 21 March 1884
and 12 March 1920, by one of the following acts, namely, refusal to
engage, dismissal or request for dismissal, threat of refusal to engage
or of dismissal, offers or promises of work, gratuities, acts of violence,

FRANCE

I77

intimidation or assault, shall be liable to imprisonment of from six
days to one month and a fine of from 200 to 1,000 francs, or to any one
of these penalties, without prejudice to thè damages which may be
claimed by the injured party..
Clause 2: The provisions of article 463 of the Penal Code shall apply
to the penalties imposed by the preceding clause except in cases of
repetition of the offence.
The desire to abolish by penal sanctions all attacks on freedom
of association was again manifested in a Bill which reproduced the
substance of the above-mentioned Bill and which was submitted to
the CEamber of Deputies on 5 November 1925 by Mr. BovierLapierre 1. Üp to the present, however, none of these measures
have been adopted.
L I M I T S SET BY ADMINISTRATIVE L A W

The general legislation applies to industrial associations without
any limitations whatever ; it makes no distinction regarding the
right of assembly aiid public manifestations (meetings, assemblies or
processions) for individuals, unauthorised groups and legally
constituted associations.
The extent to which these rights may be exercised by collective
bodies or individuals therefore depends on the broadness of the
point of view and the tact of the police authorities, general or
municipal, as the case may be.
Only the use by an association of the right of assembly or
manifestation for some other purpose — political, social or religious
— than that which it may legally pursue, can justify, for that
association, the penalty of legal dissolution.
§ 2. — Limits set by Civil Law
It has been shown that the penal liabilities incurred by the
development of the right to associate for trade purposes has been
greatly curtailed despite the maintenance of the special provisions
embodied in sections 414 and 415 of the Penal Code. A brief
examination will now be made of the civil liabilities arising from the
clash of treedom of association with the freedom of labour or the
freedom of contract. In this survey a study will be made of the
1

Journal Officiel, 5 Dec. 1925' (Ch. Dep., No. 2136).

Freedom of Association

178

FREEDOM OF ASSOCIATION

consequences wliich the compensation of abuses in respect to (1) the
conclusion of the labour contract, and (2) interruptions of the labour
contract entails in regard to freedom of association.
CIVIL LIABILITIES ARISING FROM THE CONDITIONS OF CONCLUSION
OF THE LABOUR CONTRACT

Employers' Refusal to Engage or Dismissal on Account
of Trade Union Membership
Even if no penalties existed for attacks on the freedom of
association, " it would not be permissible for employers to hinder
the free working of trade unions by the application of measures of
restraint on trade unionists. " Therefore, the dismissal of a worker
by his employer for the reason only of his being member of a trade
union and, a fortiori, the mass dismissal by the employer of those
of his workers who in spite of his warning have founded an industrial
association (or joined an existing trade union organisation) may give
rise to an action for damages. "
Such action may be based not only on section 1382 but also on
section 1780 of the Civil Code, the modification of which by the Act
of 28 December 1870 was intended " to authorise the judge to consider
the abuse of the right of dismissal as an offence entailing the
responsibility of the author ; nowadays, moreover, such abuse is
recognised when an employer dismisses a worker because he is a
trade unionist " J .
As regards the trade union thus defied, there is no doubt that it
is entitled,- when facts of this kind occur, to sue the employer for
compensation for the material and moral prejudice which it has suffered 2 .
Thè legality of the demand for compensation for dismissal in the
1

Paul Pic; op.. cit. p. 229.
The Rousseau-Millerand Bill of 1899 already recognised this right
of action of the trade union. " This prerogative ", they explained in
their memorandum to the Bill, " does not in any way contradict the
principle nowadays sanctioned (1S09) which does not allow the industrial
association to intervene in private disputes which concern one of its
members, for in the given instance the association itself suffers a prejudice if, in order to escape dismissal or to be engaged, its members must
withdraw from its ranks ".•
1

I79

FRANCE

conditions stated above is very rarely questioned, but when a demand
for compensation is based on a refusal of. employment for similar
reasons, much more doubt arises. " Arbitrary decisions and inquiries
are generally dreaded. It is commonly stated that the employer is
master of his works and that he is not required to explain to anyone
the reason why he refuses to engage one or another worker. This
may be so. But it is also impossible to allow actions of this sort to
go scot free when it is clearly proved that they constitute a wilful
attack " often openly planned, " on trade union rights " \
Legal practice is fixed on this point and " legal decisions have
repeatedly affirmed that, although the employer has the right
freely to choose his workers, he abuses this right if he refuses to
engage certain workers for the explicitly stated reason that they
belong to a trade union or if he forces workers already engaged to
withdraw from a union on pain of dismissal " 2 .
Section 11 of the Rousseau-Millerand Bill of 14 November 1899,
had it not been thrown out by Parliament, would have had the result
of giving an unquestionable legal basis tó this practice.
. ..

Black-listing

by the

Workers

If employers are to be punished for hindering the trade unions
in the exercise of their rights, are the trade unions to be permitted
to elude section 7 of the Act of 1884 and by devious methods to make
membership of the unions compulsory ?
This is just what section 416 intended to prevent by imposing
penalties on the black-listing of a workshop or of a worker. According to this section " all craftsmen, employers and contractors, who,
by means of fines, prohibitions, prescriptions and interdictions
imposed as a result of a concerted plan, hinder the free exercise of
the freedom of labour or industry, shall be punished by imprisonment
of from 3 days to six months and by a fine of from 16 to 300 francs
or by any one of these penalties ".
This article was repealed by the Act of 1884. Consequently the

BARTHOU, L'Action syndicale, pp. 248-249.
Paul Pic, op. cit. Footnote io- p. 32.9. See notably Dunkerque
Tribunal, 28 July 1899. (Annuaire des syndicats, 1900, p. 601); Bordeaux
Tribunal, 1 Dec. 1903 [Bulletin de l'Office du Travail, 1904, p. 626) ;
Seine Pröbiviral Court, 20 October 1903 {Ibid:, 1904, p. 43).'
2

i8o

FREEDOM OF ASSOCIATION

prohibition issued by a union to its members against accepting
employment in any given establishment, and that issued to an
employer concerning the employment of a certain worker are no
longer punishable under penal law. But, on the other hand, may they
not give rise to an action for damages on the part of the undertaking
or by the worker prejudiced ? Theory is divided on this point.
Certain writers consider that the establishment or individual
affected by a prohibition of this nature may claim compensation for
the prejudice resulting from being black-listed, in virtue of section
1382. This arbitrary reading is, however, not usually accepted.
The more general opinion is that not only has the repeal of
section 416 abolished the criminal character of the various acts
described therein, but that it has also conferred new privileges in this
respect on individuals or associations, privileges which are inseparable
from complete freedom of association and " of which the normal use
does not compromise their civil rights in any way whatever " l.
The question which arises here is to ascertain whether persons
who have been sued for damages in this, connection have confined
themselves to the normal use of these rights, or whether, on the
contrary, they have abused them. The legal basis of their liability
would appear to lie in the theory of an abuse of their rights. Legal
decisions are agreed on a certain number of cases. If, for example,
the black-listing of an establishment is based on malevolent intentions,
without there being any justification for such malevolence, legal
practice is unanimous in recognising that the injured party has a
right to compensation. If, on the other hand, this measure has been
decided on for the protection of industrial interests, or is based on the
non-compliance with measures for the protection of labour or on the
violation of certain conditions concerning the remuneration of the
labour or of trade union wages, no condemnation even civil may be
incurred by the trade union, which has merely exercised its normal
right of action. The. same argument holds good where workers
endeavour, through the medium of prohibitions, to defend themselves
against attacks on the free exercise of their civil rights or their
freedom of conscience.
Logically, it should follow from this theory that all action taken
with intent to prejudice an individual, be he a worker or an employer,
1

Paul Pic, op. cit.

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lSi

or a whole class of worker, on account of political, social or religious
opinions, is an offence justifying action for damages '.
It was on these points that the Rousseau-Millerand Bill aimed at
fixing jurisprudence, by the following provision : " Black-listing by a
trade union for any purpose other than that of securing the enforcement of conditions of labour which it has established, and the exercise
of rights granted to citizens by the law, is a civil offence and justifies
an action for damages in respect of the prejudice caused ". This
text, however, passes over a very delicate question on which
agreement is far from being general.
This is the case of black-listing solely because the worker in
question is not a trade unionist. On this question there is almost
complete disagreement in legal circles.
The Court of Cassation considers as " an attack on the rights of
other persons, all threats of strike when such aim at compelling an
employer to dismiss a worker because he has withdrawn from an association or refused tp become a member of an association. " The
Chambéry Court declares " the principle of individual freedom of
labour, which is maintained in the interests of public policy, would
be purely imaginary for a workerjf he could not use it without being
threatened with the loss of his work which more often than not is
his sole means of existence. "
Contrariwise, Mr. R. Jay, discussing an award of the Court at
Grenoble, says :
All these facts are merely a manifestation of a general tendency
common to all workers' trade unions. The leaders of these associations
quickly come to understand that the workers ' organisations will be in a
position to play an important part in the amendment and improvement
of conditions of labour only when the associations will include the large
majority, if not the totality, of the workers in the various trades.
Therefore, with this in view, all their endeavours are bent in the one
direction, namely, to make membership of the unions compulsory for the
greatest possible number of workers.
The policy of compulsion on the part of the trade unions has
been advocated by men like Jaurès, Paul-Boncour, R. Jay and
H. Bazin. For example, the latter says : .
1

See notably : Cass. 22 June 1892 (D., 92, 1, 449 ; S., 93, 1, 41) ;
Chambéry, 14 March 1893 (D., 93, 1, 191 ; S. 93, 2, 139) ; Lyons, 2 March
1894 (D., 94, 2, 305 and Planiol's Note) ; Paris 31 March 1896 (D., 96, 2,
184) ; Trib. Paix, Nice, 30 March 1906 (D., 1906, 5, 62) ; and in an opposite sense : Grenoble, 20 October 1890 (D. 91, 1, 281 ; S., 93, 1, 41 and
Jay's Note).

182

FREEDOM OF ASSOCIATION

It is a natural tendency for industrial associations to endeavour to
secure the affiliation of the totality of. the workers in an establishment.
This sentiment is based on a just appreciation of the irresistible solidarity which draws together all members of the same trade, and of the
necessity to organise this solidarity. It answers, moreover, to the
practical need for the protection of occupational interests. As a. means
of obtaining improved conditions of labour and of supervising the
observance of such conditions, trade union action cannot be either efficient
or durable so long as the presence of nou-members provides the means
for reducing and neutralising its influence and puts obstacles in the way
of complete cohesion among the working class elements *.
The real reason for the difficulty in finding a legal solution for
this Question lies in the two-sided character of present day trade union
legislation, and the fact that it is perfectly obvious, as Mr. Barthou
says " that the controversy is between those who give more
importance to the industrial association than to individual liberty
and, to some extent, freedom of labour, and those, who, on the
other hand, while supporting the industrial association, do not intend
to sacrifice to it the individual worker's liberty to earn his living
outside the association " 2 .
How is it possible in such circumstances for legal practice to be
other than " subject to sudden changes and doubts " ? If, for
example, jurisprudence admits that an establishment may be blacklisted because it employs non-union workers, it is obvious that it is
sacrificing the freedom of labour to trade union interests. If, on the
other hand, it lays down that it is inadmissible to black-list an
individual worker because he is not affiliated to a union, it. sacrifices
trade union interests to freedom of labour, for if anything, the existence of " blacklegs " is certainly prejudicial to the trade concerned,
the " blackleg " being for the trade union as odious as a deserter.
The main aim of the union is to break down the resistance of these
turncoats. Jurisprudence is perfectly aware of this, and it frequently
happens, when actions of non-trade union workers are particularly
offensive, that it admits the legality of black-listing.
In this manner, legal practice only prohibits black-listing when
the sole underlying reason is a refusal to join a trade union ) and
admits it as legal when it is really a measure for the protection of
occupational interests, devoid of all violence 3 .

1
L'Association catholique, 15 Nov. 1903, p. 403.
-' BARTHOU : L'Action syndicale, p. 461.
* G. SCELLE : Le droit ouvrier, pp. 75-76.

FRANCE

Civil,

i 63

LIABILITIES IN ..CONNECTION W I T H BREACH OF CONTRACT

The strike is no longer a penal offence. In consequence the
trade union which has taken part in the preparation and calling of a
strike does not incur any penal liability other than those which may
follow from complicity in events which are still illegal according to
sections 414 and 415 of the Penal Code.
The strike may, however, entail civil liabilities. What then is the
extent of these liabilities, and in what measure may a trade union
be affected by them ? What are the consequent legal limitations of
a union's right to take part in a collective stoppage of work ? What
then is the legal nature of a strike ?
In view of the importance of this question, a brief description of
its theoretical and practical aspects is given below, when it is shown
that the majority of writers make a distinction between strikes called
to ensure the enforcement of stipulated conditions and which
consequently constitute a simple stoppage of work, and those which
aim at modifying the collective labour agreement and which, therefore, entail a breach of contract with all its consequences.
In actual practice, however, the Court of Cassation and legal
practice assimilate the strike to a collective breach of the Labour
agreement in the great majority of cases. In ceasing work, says the
Court, the workers evince a desire to break their contract. " This
desire is also to be presumed even where it is not obvious. Further,
even if the absence of such intention be proved, the fact of ceasing
work means that they are no longer fulfilling their engagements, and
this being so, a breach of contract with all its consequences for
workers and employers becomes an accomplished fact. The workers
become liable to be pursued for damages in respect of absence of notice
or abusive breach of contract, while the employers become entitled to
replace defaulting workers without delay or preliminary notification.
When a strike takes the form of a sudden breaking of a labour
agreement signed for an indefinite period of time and in the absence
of the usual time notices, legal practice generally bases its verdict for
damages on section 17S0 of the Civil Code.
Even if the legal argument be adopted that a strike is a breach
of contract, section 1780 " authorises the dismissed parties to take
proceedings for damages only if the other party has abused its legal
rights to terminate ad nutum a contract for an indefinite period of
time." A civil condemnation, even based on this clause, cannot be
pronounced against organised workers or trade unionists who have
suddenly declared a strike, unless there is an abuse of the right of

184

FREEDOM OF ASSOCIATION

combination, that is to say, if they have used this right for a purpose
other than that for which the right of combination was legally recognised in 1864, and definitely established in 1884, namely, to reach
an end quite foreign to the defence of occupational interests \
When a strike results in the breaking of an agreement entered
into for a definite period of time, it is on the violation of contractual
obligations that an action in damages may be based. The question
may then arise as to what extent the judicial theory of unforeseen
circumstances may be used to attenuate the liability of the party
which has broken a contract which has become too onerous for it.
As regards the consequences arising for the workers from
decisions of current legal practice in respect to the employer's right
not to re-employ strikers, it is certain that these are exceedingly
grave. The situation would be quite the contrary if the strike were
not considered as equivalent to a breach of contract. " The absolute
liberty enjoyed by the employer in connection with the re-employment
or otherwise of strikers would no longer exist. The employer would
be required, provided always that the workers had not committed the
imprudence of taking the first step and acting as if they considered
themselves already freed from any contractual engagements, to give
the usual notice to the strikers if he desired to cancel their contract.
Such notice would allow the authority of the judge to step in,
conformably with section 1780, and the courts would be in a position
to grant or refuse damages to workers whose employer refused to
employ them at the conclusion of the strike, according to whether,
after examination of the actual circumstances, they considered the
employers' attitude as legitimate or abusive. The employers' refusal
to re-employ trade union workers solely because they were members
of their trade union would moreover be an abuse " '.
In the meantime, it is obvious that the gravity of the liabilities
which, in the present state of legal practice, may result from a strike
for a trade union or for its members, is such as to hinder the
unrestricted use of this means of combat which at times appears to
be the sole weapon available to obtain those improvements in industrial conditions which constitute the goal of the unions \
1

2
Pauli Pic, op. cit., p. 215.
Ibid.
See Bill by Mr. Victor-Jean of 3 February 1927, providing that
" collective stoppages of work by exercise of the right to strike do not
terminate the labour contract ". Ch. Dép., 1927, No. 3919. Industrial
and Labour Information, Vol. XXI, p. 488. The passing of this Bill would
free industrial associations from all liability in connection with strikes.
3

CONCLUSION

The conclusion to be drawn from the present study is that
freedom of association in France is in full evolution. An endeavour
has been made in these pages to describe various phases and to sketch
certain tendencies of the movement, but it is virtually impossible to
give a complete idea of the position of the associations as a whole.
It would almost appear as if the very spirit of the movement were
opposed to being confined by legal shackles, and that it. were destined
to over-run the boundaries which legislators insist from time to time
on ordaining for the working elements of the nation.
•When an effort is made to bring within the scope of a single
legal formula the various aspects of development which freedom of
association (essentially a collective right) has assumed in a number
of different fields, it becomes evident that the growth of the movement
is in inverse ratio to the legal extension taken by the principle of
individual freedom of labour.
At the outset this fundamental principle of the Napoleonic Codes
excluded all idea of combination, both in the labour market (former
Sections 414 and 415) and in the commercial market (sections 419
and 420).
Combination, and in general, all forms of association, whether or
not its aim is to influence the price of labour or commodities by
threats of a strike, is still considered as an association for an illegal
end. Thus interpreted, the principle of freedom of labour would
seem to fit into an economic conception in which individual
competition was regarded as the sole and perfect means of regulating
social relations, and in which the State intervened only to abolish
obstacles, more or less artificial, to the free play of competition.
Towards the middle of the X l X t h century, however, collective
competition began to replace individual competition, and the
concentration of industrial establishments and labour power engendered organised association. From that period the legislator could

l86

FRBBDOM OF ASSOCIATION

no longer ignore this phenomenon, which thereupon took its place
in the conception of freedom of labour. The result of this was that
combination and, in consequence, the cessation of work, which is
one of its main objects, were no longer considered illegal. Nevertheless, freedom of labour continued to be the dominant factor,
combination being but of secondary importance. Moreover, the
concessions made to the associations were of a very half-hearted
character, as the offence of combination was replaced by the special
offence of interference with the freedom of labour (sections 414
and 415 of the Act of 1864), the Legislature repressing by a stern
and unreasonable application of the provisions of common law, all
illegal influence. Civil judges, moreover, have up to the present
continued to show great suspicion towards the trade-movement by
considering stoppages of work, be they the results of strikes or lockouts, as equivalent to a breach of contract. It was only recently
that, as a result of the general adoption of the collective agreement,
they have begun to make a distinction between strikes and lock-outs
called for the purpose of protecting agreements, and the illegal
cessation of work begun in defiance of existing agreements.
The Act of 21 March 1884, which conferred legal recognition
on industrial associations, marks a distinct turning-point in the
evolution of these bodies. The real importance of this Act lies not
so much in the practical results it has had, as in the facilities for
future development which it provides. Here again, association is
only considered as a form of the freedom of labour, every possible
precaution being taken to prevent the groups from exerting pressure
on their members, who are free to join or withdraw from a union
at all times. Trade union discipline is but imperfectly guaranteed,
and the deed of association does not receive legal sanction under
common law if it restricts freedom of labour in any way.
Although endowed with legal personality, the association has
no representative or public character. It can claim no legal protection against parties who undermine its work by the organisation of
counter measures. It has the right to acquire and possess property,
to enter into contracts and to appear in court, but only so far as the
protection of its closely defined financial and occupational interests
is concerned. It was only when the development of the movement
had pushed back legal barriers that the Act of 1920 gave formal
recognition to an extension of its prerogatives in this connection.
The law encourages the associations to found welfare and health

FRANCE

l87

institutions and workers' co-operative societies, but forbids all
enterprise of a non-occupational character. In fact, association
would appear to have been regarded only as an exercise of the
individual right.
Nevertheless, the spirit of liberty which is at the base of the
legal standing of the associations, has opened up ways and means
for the future development of occupational organisation.
Preliminary administrative formalities in connection with the
constitution of the associations are reduced to the strict minimum,
being required merely for publicity purposes. The public authorities
refrain from all interference in the internal organisation and working of the associations and their federations.
Freedom of association is a recognised right of all social classes,
the liberal professions and administrative officials. At present a
Bill is before Parliament for the extension of the privileges of the
Act of 1884 to all classes of civil servants. Official contact has
already been established between their associations and the administrative authorities. In fact, the law favours the expansion of the
movement by all means in its power, and provides the framework
for the future organisation of the various trades.
This organisation would appear to have been realised quite
independently of the legal status introduced by the Act of 1884. It
answers to an economic phase which places the idea of collective
discipline before the requirements of the individual. This tendency
has made itself felt, both in the relations between the contracting
parties themselves and in those of the associations with the public
authorities.
It is as industrial representatives that associations take part in
the conclusion of collective agreements. They negotiate officially
on behalf of their members and certain third parties. They are
entitled to reserve the privileges of the agreements they conclude for
their members alone, (provided that their actions are not based on
malevolence), and are thus in a position to compel the more lukewarm elements to join and belong to an association. They may
take legal action on their own behalf to enforce collective agreements
to which they are parties, and are given the right to sue in place
of any of their members, provided they have the consent of the
party or parties interested.
It would also seem that the settlement of industrial disputes,
which, on account of the existence of collective agreements, often

l8S

FREEDOM OF ASSOCIATION

affect a whole trade, cannot be arranged without the direct collaboration of the organised industrial associations. Thus it is that
over and above the procedure instituted by the Act of 1892, there
is a continuous increase in the number of joint committees
established for the amicable settlement of disputes. Up to the
present, the settlement of disputes has always been on a voluntary
basis, and, in present circumstances, it. seems very probable that
the efforts recently made to introduce compulsion in respect of
arbitration will meet with but small success.
The only sure remedy to the impotence of the penalties attached
to breaches of the collective labour agreement, and to the difficulty
of settling or preventing labour disputes, lies, for many people, in
the introduction of workers' control in the establishments. But, if
exception be made of desultory examples of this policy in a few
public or concessionary enterprises which have introduced a diluted
form of workers' control on a profit-sharing basis, and of the
experiment made by the Act of 26 April 1917 on labour copartnership in limited companies, it will be seen that the whole question
is still in its infancy.
However inadequate and unfinished this method of independent
collective regulation of labour questions may appear, from certain
standpoints, it has to be admitted, in summing up, that the industrial
associations, in their capacity of recognised representatives of the
various trades, are the real authors of it.
Again, the associations, in addition to their representative
character in private matters, have been granted an official role by
the public authorities.
In the first place, the State associates them in the work of
preparation of economic and social legislation by calling on them to
sit as industrial experts in a number of councils and consultative
bodies attached to the Ministries of Commerce and Labour.
Secondly, the legislator, abandoning his exclusive right to draft
legislation, has in recent years contented himself with supplying
the general framework of labour laws, within which the industrial
associations fit the provisions of inter-trade agreements, which thus
have force of law for all persons in the various trades.
Finally, the enforcement of a large amount of labour legislation
is placed under the supervision and protection of the industrial
associations, which are authorised to take legal proceedings even

FRANCK

1*9

on behalf of a third person, in courts of every instance, to redress
abuses.
From whatever standpoint the occupational movement be
regarded, it is seen to have over-run the confines of its legal status,
and this must be taken as a criterion of the extent to which the
principle of individual freedom of labour has had to capitulate to
the requirements of organisation.
Such are some of the aspects of an evolution which is still
going on, and which is as yet far from completed. The associations
are developing their influence in a number of directions, and
although these phases are not; all equally advanced, they are all
in a state of progression. " The strongest impression received
from the study of the various forms of activity of the employers'
organisations " writes Mr. Etienne Villey, " is that the associations
are tending more and more definitely to intervention in the economic
and social life of the country. We see them informed on all
occupational problems raised by current industrial life ; in proportion
as these questions lead to action by the public authorities, we see
the associations ready and prepared to intervene on behalf of the
interests which they represent. We are therefore rapidly approaching a system wherein the organised trades will take their place in
the national economic system. Already the stage of absolute
individualism has been passed and is beyond recall, and we are
tending towards a state of things in which the various forms of
association will have a predominant place. " '
On the other hand, Mr. Paul Boncourt makes a similar
statement concerning the workers' trade unions. " Everywhere
and at all times " he says, " we have observed that the industrial
associations aim at transforming the contractual relations existing
between themselves and the individuals freely subscribing to them
into relations which individuals cannot, in fact, avoid, which force
them either to adhere to the group or to submit to its decisions, and
which even extend to persons foreign to the group. Everywhere
and at all times we see that the relations between industrial associations and individuals have a tendency to pass from private law into
public law, to become the sovereign relations. . . . The occupational
group is moving towards supremacy in labour, a partial supremacy
» Etienne VILLEY :- L'organisation professionnelle des employeurs de
l'industrie française, p. 307.

190

FREEDOM OF ASSOCIATION

which contents itself with governing the occupational and economic
activity of the individual, or, to put it briefly, an economic
supremacy. " J
Is this evolution towards the mass and, to some extent, allinclusive organisation of the trades, to lead to compulsory associations for workers and employers ? In the opinion of some writers
this is certain and even desirable. " The. very fact of its including
all workers " says Mr. Georges Scelle, would enable the industrial
associations to re-endow the level-headed majority with that
predominance which is at present held by the militant minorities ;
to grant necessary prerogatives to the association which compulsorily
includes the whole trade, by permitting it efficiently to represent
this trade, would allow it to exercise the necessary discipline over
its members and to safeguard occupational interests by participating
in the orderly organisation of the trade, or in a word, to keep watch
and ward on occupational interests, and to assume the responsibility for them. It would most probably result, by way of reaction,
a strongly developed employers' movement, negotiating on an equal
footing with the workers' organisations through the medium of
mixed or joint deliberative bodies, such as are to be found in certain
countries, and which are fitted to secure the autonomous contractual
regulation of labour matters. " 2
Other writers, on the contrary, fear the inclusion in . the
association of lukewarm elements which may convert the living
organism into an amorphous mass. They prefer a voluntary association guided by a select body of thinkers and men of action, having
no pretentions to absolute power over a trade and merely desiring
privileged rights in all discussions or acts of interest to the trade
concerned.
Whatever be the lines of organisation which prevail in the
future, and which, of necessity, must be largely influenced by the
regular and united development of the movement itself, it would
seem possible to agree with Mr. Carrère as to a tendency which
is common to them all. " Revolutionary trade unionists " he writes,
" who see in the trade unions a weapon against the capitalist State
and a nucleus of the future society ; trade unionists, disciples of
1

PAUI.-BONCOUR
VILLEY, p. 309.

: Le fédéralisme économique, quoted by Mr. Etienne

^Georges SCEIXE : Le droit ouvrier, " L e facteur-syndicalisme-".•

FRANCE

ICI

Proudhon, who assigned an essential place to the trade unions in
their economic labour councils and their nationalisation schemes ;
republicans, who contemplate the foundation of an industrial
parliament side by side with the political Parliament ; economists
of the right wing, who desire to organise production on the basis
of a joint corporate group ; all these different, parties of various
shades are working out new doctrines, which, in spite of their
divergences and opposing theories, at least have a common fundamental aim, viz., the extension and improvement of trade union
prerogatives. "

BIBLIOGRAPHY

I. — OFFICIAL DOCUMENTS

Act of 2i March 1884 respecting industrial associations.
Act of 25 March 1919 respecting collective labour agreements.
Act of 12 March 1920 respecting the extension of civil capacity of industrial associations.
Barthou Report of 28 December 1908 (Doc. Pari., No. 1418).
Chabrun Report (Chambre, Doc. pari. 1920, No. 453).
Chabrun Report (Chambre, Doc. pari. 1926, No. 2569).
Cheron Motion of 10 February 1916 (Senate, Doc. pari. 1916, No. 37).
Cheron Report (Doc. pari. 1917, No. 81).
Godart Bill of 2 February 1925, to safeguard the free exercise of the
privileges granted by the Act of 1884 respecting industrial associations. (Chambre, Doc. pari., 1925, No. 1169).
Lauche Report (Chambre, Doc. pari. 1918, No. 4945).
Lerolle Motion of 19 November 1918.
Waldeck-Rousseau-Millerand Bill of 14 November 1899, amending the
Act of 21 March 1884. (Chambre, Doc. pari. No. 1185).
II. — G E N E R A L L E G A L TREATISES AND COMMENTARIES

BERTHÉLEMY : Traité de droit administratif
BRV, G. : Législation

(latest edition).

ouvrière, 6th edition, 1921. Recueil Sirey.

CAPITAUX, H. and CUCHE, Paul : Cours de législation
edition, 1921. Published by Dalloz.

industrielle,

2nd

Pic, Paul : Les lois ouvrières, third edition, 1922. Published by A. Rousseau.
n_
SCELLE, G.: Le droit ouvrier,

1922.

Published by Armand Collin.

CÉLIER : Recueil getterai des lois, décrets et arrêtés, 1920.
DALLOZ : Répertoire V : Syndicats

professionnels.

PiOT, G. : Administration
du recu-eil général des lois et décrets ro2o.
Commentaries on the Acts of 21 March 18S4 and 12 March 1920.

*93

FRANCS
III. — SPECIAL W O R K S AND ARTICLES

AMANIEUX : L'armature
BARTHOU : L'action

sociale, igiç.

syndicale,

Albin Michel.

1Q04. Arthur Rousseau.

BERTHOD : Les syndicats de fonctionnaires et l'organisation
cratie (Revue politique et parlementaire), 1906.

de la démo-

B01SSARD : Le syndicat mixte, 1896. Arthur Rousseau.
Contrat de travail et salariat, 1910. Bloud et Gay.
BONNARD : La crise du fpnctionnarisnte
BouRGUiN : L'application
l'Etat.

(Revue de droit public), 1906.

des lois ouvrières aux ouvriers et employés de

BUREAU : Le contrat de travail et le rôle des syndicats
1902.
CAHEN : Les syndicats
taire), 1906.

de fonctionnaires

professionnels,

(Revue politique et parlemen-

CARRÈRE : La liberté d'association.
Le droit syndical. Le droit
ciation des fonctionnaires (" Politica " ) , 1925.
CHALEIX : Les syndicats

professionnels

CHALLAYE : Syndicalisme
1909. Alean.
DILIGENT : Orientation
DUTHOIT:

Vers l'organisation

FANIEZ : Corporation

patronaux, 1904.

révoltUionnaire

syndicale,

réformiste,

1919. Action populaire.

1905.

GIRARD DE : Les associations professionnelles
nomie politique), 1899.
GLOTIN : Les syndicats

et syndicalisme

Bloud et Gay.

professionnelle,

et syndicats,

d'asso-

de l'avenir

(Revue d'éco-

professionnels.

GONNARD ': Caractères généraux de la loi de 1884-1898. La réforme des
syndicats professionnels et le projet gouvernemental
(Quest, prat.),
1900.
G R I P P Ü E L H E S : Le syndicalisme

L'action

syndicaliste,

révolutionnaire,'

HALÉVY, Daniel : Essai sur le mouvement
nouvelle de librairie.
JAURÈS : Histoire

1909.

1908. Rivière.
ouvrier en France.

Société

socialiste.

JAY : L'évolution du régime légal du travail. L'organisation du travail
par les syndicats professionnels. La protection légale des travailleurs,
1904.
JOUHACX : Le syndicalisme français, 1913. Rivière.
Le syndicalisme et la C.G.T., 1920. La Sirène.

Freedom of Association

FREEDOM OF-ASSOCIATION

»94
KRITSKY, M lle :

L'évolution

LAGARDELI.E : L'évolution

du syndicalisme

en France. 1908.

Giard.

des syndicats ouvriers en France, 1901.

LEROY, Maxime : Les transformations de la puissance publique, 1907.
Giard.
Syndicats et services publics, 1909, Colin.
Les techniques nouvelles du syndicalisme, 1921. Gamier.
LEVASSF.UR : Histoire des classes ouvrières en France.
LORIN, Henri : Le mouvement syndical ouvrier, 1903. Association catholique.
L'organisation professionnelle et le Code du travail, 1907.
Louis, Paul : Le syndicalisme contre l'Etat, 1910. Alean.
Histoire du mouvement syndical (17S9-J790), 1911. Alean.
Le syndicalisme français (1906-/922), 1924. Alean.
MARTIN SAINT-LÉON : Histoire des corporations de métiers et du syndicalisme contemporain. Third edition, 1923. Alean.
L'organisation professionnelle de l'avenir, 1Ç04. Association catholique.
Les deux C.G.T., 1923. Bibliothèque du Musée social.
MERMEIX : Le syndicalisme
littéraire.
MILLERAND : Travail et

contre le socialisme,

travailleurs.

PAUL-BONCOUR : Le fédéralisme
Les syndicats

1907. Société d'édition

économique.

de fonctionnaires,

1906.

RAYNAUD, Barthélenw : Le contrat collectif de travail, 1921.
V I L U Ï Y , E t i e n n e : L'organisation professionnelle
l'industrie française, 1923. Alean.
IV.

des employeurs

dans

— G E N E R A L SOURCES

Recorda and publications of workers' congresses.

Records and publications of " Social Weeks ".

Enquiries and publications of the French National Association for the
Legal Protection of the Workers.

BELGIUM
CHAPTER I
HISTORY OF THE TRADE UNION MOVEMENT AND OF
TRADE UNION LEGISLATION IN BELGIUM

§ 1. — Legislative History
The history of trade union legislation in Belgium presents considerable analogies with the same history in France 1. In each case the
starting point is the same 2 : namely, the abolition of the guilds aird
the proclamation of the freedom of labour, the prohibition of association, on the labour market as on the ordinary market, which was
sanctioned by the French Penal Code, which remained in force in
Belgium until 1866.
Subsequent events also show a certain analogy, which is, however, more apparent than real. Like the French Act of 1864, the Belgian Act of 1866 abolishes combination as a delict and replaces it
throughout by the delict of prejudicing the freedom of labour. But
whereas in France the scope of this delict was considerably reduced
by the abrogation of section 416 of the Code in 1884, it was extended
in Belgium by the Act of 1892, and at the same time the penalties
were increased. It is hardly surprising that the campaign against

1
See under France : " History of Trade Union Legislation and of the
Trade Union Movement ", p. 87.
2
There is an historical explanation for this analogy. It will be
remembered that from 19 Brumaire in the year IV of the Republic up to
the Congress of Vienna Belgium was part of France.

Iç6

FREEDOM OF ASSOCIATION

section 410 of the Penal Code, which was waged by the Belgian
trade unions, was more energetic than in France, and ended only
with its abolition. Thus, the Belgian Act of 24 May 1921 has entirely
eliminated the penal theory of prejudice to the freedom of labour,
whereas sections 414 and 415 still exist in France 1.
The Belgian Trade Union Act of 1898 is based upon the French
Act of 1884. Like that Act, it recognises the trade unions and
endows them with a legal personality. None the less, the two Acts
have not the same importance in practice. The French Act, which
enshrines for the first time the principle of the right of occupational
association, confers considerable advantages on recognised trade
unions, while reducing the formalities for their establishment to the
-necessary measures for publicity. It constitutes an important landmark in the evolution of French trade union law 2 . On the contrary,
the Belgian Act, which subjects the trade unions to a stricter control,
and is somewhat more sparing in the advantages which it confers on
them, has remained in practice a dead letter. But the chief divergences between the-two countries may be noted in the existing legal
regulation of occupational associations. Whereas French trade union
law has developed on the lines of penal and civil law, in Belgium the
right of occupational association, which is considered as a special case
of the right of association in general, has been, since 1831, part of
the Constitution. Further, the right is specifically guaranteed against
individual attacks upon it by an Act of 24 May 1921.
In the beginning, we find absolute prohibition of the right of
association, and at the present time a special system of protection of
this right reinforced by penalties ; such is, in brief, the profound
evolution which public opinion and the law have undergone in Belgium. The development has taken place as part of the development
of the principle of the freedom of labour and industry, since the extension of trade union rights has been made in direct proportion to
the restriction of individual freedom of labour. I t would therefore
seem necessary, in order properly to explain this evolution, to give
some analysis of the notion of the freedom of labour as it was conceived at the beginning of the nineteenth century.

1
See under France : " Legal Limits of Freedom of Association ",
p. 171.
2
Cf. ibid., " Legal Status of Industrial Associations •", p. 119.

BELGIUM

'97

The expression " freedom of labour ", say the Belgian Pandects 1, may be understood in two different, but not unrelated, senses.
Either the expression is understood to be synonymous with the phrase
" freedom of industry " : this was the liberty to protect which was the
main object of the Le Chapelier Act of 2-17 March 1791, which was
promulgated in Belgium on 19 Brumaire in the year IV of the Repu*.
blic, abolishing the craftsmen's unions, the trade guilds and the
masters' unions, or else the phrase means " the freedom to carry out
a chosen occupation ". It was in this latter sense that Belgian
legislators of the early nineteenth century understood it. In accordance with the guiding ideas of the liberal school, freedom of labour
was no more than a corrollary of individual freedom, or of the
recognised right of every man to live and act as he pleased. Indeed,
it constituted the most direct and the most important application
of this right, since labour was, for man in general and for the wage
earner in particular, the only method of earning a livelihood.
Moreover, it was regarded by the legislators, in the natural order
of things and by a sort of pre-established economic harmony, as the
most effective instrument of industrial prosperity.
Such is the main sense of the principle of the freedom of labour ;
but there may be more than one application of the principle.
In theory, the free exercise of industry implies an absolute freedom for the employer to acquire or to utilise anything necessary for
the proper working of his undertaking and, in particular, to engage
the necessary labour. For the worker, it implies the free choice of
an employer and free discussion of the contract of service, without
any intervention by a third party. Consequently, the employer who
refuses to engage a worker, or who dismisses ¡him for whatever
reason, even if it be out of pure caprice, is in no way infringing the
principle of the freedom of labour of the wage earner, who has no
right to work. Conversely, the worker who refuses to.engage himself
or who stops work for any motive whatsoever, or even out of pure
caprice, is in no way infringing the freedom of labour of the employer,
who has no inherent right to secure labour. On the contrary, prejudice is caused to the freedom of labour or of industry if the employer
refuses to engage a worker or dismisses him owing to the intervention of a third party who brings pressure to bear on him, and

Cf. Pandectes beiges : " The Freedom of Labour ",
PP7-346 et seq.

\V>1 114,

io8

FREEDOM OF ASSOCIATION

similarly in the reverse case, if a third party intervenes with the
worker. Prejudice to the free exercise of industry or of labour can
result only from the action of a third party, whatever be the means
employed (whether refusal to make an agreement, the boycotting of
worker or employer), whether the desired result be obtained or not,
whether the methods used be or be not reprehensible, whether the
object aimed at be or be not legal, whether the cause of the interference be an individual or a collection of individuals.
Such is the original concept of the principle of the freedom of
labour. From the beginning of the nineteenth century, it has been
the subject of ever stricter and stricter limitations, whether on the
part of the State — since labour legislation may be held to be no
more than the progressive restriction of the principle — or on the part
of the trade unions. The history of trade union legislation is in
the last resort no more than the history of the restrictions. It may
now be well to consider the main phases of its development.
T H E PERIOD OF ABSOLUTE PROHIBITION

(1810-1867) '

The Penal Code of 1810 forbade all forms of combination, taking
the view that, by their mere existence, they were prejudicial to the
freedom of labour. Thus, in the view of the authors of the 1810
Code, association was considered to be ipso facto for the purpose of
achieving an illicit object. Hence the suppression of all forms
of combination, whether of the employers with a view to reducing
wages (section 414), or of the workers with a view to increasing
them (section 415), or between the chief holders of a given form
of goods (section 419)- It will suffice here to deal with sections 414
and 415, which deal with workers' and employers' combinations.
Section 414 ran as follows :
Any combination between persons who engage workers, for the purpose of unjustly and abusively securing a reduction in wages, which is
followed by any attempt or beginning of an attempt to put such a reduction into practice, will be punished by imprisonment of from six days
to one month and by a fine of from 200 to 3,000 francs.
.Section 415 ran as follows :
Any combination on the part of the workers to cause a simultaneous
stoppage of work, to prohibit work in a workshop, to prevent workers
1

«eq.

Cf. Pandectes beiges : " The. Freedom of Labour " Nos. 21 et

BELGIUM

I99

from going thither or from remaining there before or after certain hours,
and in general for the purpose of suspending, preventing or increasing
the cost of the work, will be punished by imprisonment of from one month
to a maximum of three months.
The leaders will be punished by imprisonment of from two to five
years.
It will be seen that the two prohibitions were analogous in
appearance only. Section 414 punished only combinations between
employers for the object of reducing wages. Combinations formed
with some other end, even if they resulted in the same consequences,
did not come under the law. It was also necessary that the reduction in wages contemplated should be unjust or abusive. The onus
of proving the injustice or abuse fell upon the complainant, and it
was for the judge to decide. On the other hand, section 415 not only
prohibited a strike (however legitimate it's object, however pacific its
methods), boycotting and picketing ; it punished even a mere agreement which was not followed by action. There was inequality in
assessment of the delict.
A further inequality was in the severity of the penal sanctions.
Combination on the part of the employers was punished by imprisonment of from six days to one month only ; combination between the
workers, with imprisonment of from one to three months for the
workers, and of from two to five years for their leaders.
In addition, section 416 applied to the workers alone in prohibiting fines, prohibitions, restrictions or boycotts of any kind put into
force either against employers or workers. It may be noted that in
the 1810 legislation, the more serious methods of pressure, such as
violence and threats, fell under the ordinary law, and were not
therefore more severely treated if they were the result of combination.
The consequence of this was that, generally speaking, they were
less severely dealt with than mere prohibitions or restrictions.
These provisions were indirectly strengthened by the prohibition, under sections 291 and 292 of the Penal Code, of any meeting
or association of more than twenty members, the penalty for infringement being a fine of from 10 to 200 francs.
It might have been expected that so severe a preventive system
would be modified, or at least attenuated, twenty years later, when
the Constitution of 1831 was being adopted. One of the first acts
of the Provisional Government had been to re-establish the principle
of freedom of association by a Decree of 16 October 1830, which
stated that, in the name of the sacred principle of individual liberty;
citizens should be allowed to associate as they wished, whether for

200

FREEDOM OF ASSOCIATION

political, religious, industrial or commercial purposes. So wide a
definition of the right of association would appear to have included
all methods of association, including occupational groups, as well
as non-profitmaking associations. Not content with recognising the
right of associations to exist, the Decree freed them from all administrative supervision, its section 3 providing that no preventive
measures could be taken against the right of association.
In a slightly less lucid, but similarly inspired form, Article 20
of the Constitution definitely enshrined the principle of the right of
association. " Belgians ", proclaimed the Constitution, " are entitled
to associate. This right may not be subjected to any preventive
measures. " Similarly, Article 138 of the Constitution formally
repealed all provisions of the Civil and Penal Codes which were
contrary to the new Constitution.
Despite these formal declarations, however, the principle of
freedom of association was not in fact admitted in the occupational
sphere. Right up to the eve of the preparation of the new Penal
Code, the Courts severely repressed all delicts arising from combination. In his enquiry into occupational association ] , Mr. Vandervelde quotes numerous examples. Mere concerted action for the
purpose of effectively demanding an increase in wages constituted a
delict. The boycotting of an employer, although occurring as the
result of, and as a reply to, previous action of a similar nature on the
part of the employer, was repressed. As regards actual strikes,
Mr. Vandervelde points out that the Act was applied to them with
severity during the Ghent weavers' and spinners' strikes which came
one after another in 1857. In Ghent alone, 500 workers were imprisoned.
-The very severity of this repression, coming at a time when
economic conditions had changed, and when a number of occupational associations had come into existence, the object of which was,
by threat of strike or lockout, to exercise an influence on conditions
of labour, hastened the reform of the Penal Code. In 1866 the
delict of combination was abolished.

Cf. E; VANDERVELDE : Enquête sur les associations professionnelles
d'artisans et d'ouvriers en Belgique, Vol. I, pp. 75 et seq. ; D E SMET :
L'évolution du mouvement syndical ouvrier en Belgique, pp. 14 et seq. ;
"L. DUCHESNE : Syndicats ouvriers belges, pp. 15 et seq.

201

BELGIUM

THE

PERIOD OF PARTIAL PROHIBITION

Abolition

of the Delict of

(1867-1021)

Combination

N o t h i n g shows better t h e transformation in t h e views of Belgian
legislators than the statements made to t h e Chamber of Deputies
by t h e Reporter-General on t h e new A c t .
" An individual refusal to work " he stated, " is a legal act, since
the employer is not entitled to secure labour. How then can a collective
refusal be considered as a delict? How can two legal actions combined
produce an illegal action ? .Surely -not by that element of association
which is the only new factor.
" Article 20 of the Belgian Constitution explicitly proclaims this
freedom of concerted action and association in all spheres. . . The clauses
in the Constitution which guarantee liberty, and proclaim certain rights,
are placed there to guard against the abusive use which the State might
be tempted to make of the powers which we assign to it for the purpose of
preserving order and public security. Of what use is it to decree freedom
of association if t h e law can prevent or suppress it ? In order to enable
the law to forbid association, such association must either be a culpable
act in itself, or m u s t go beyond the constitutional rights of citizens.
Association violates no rights, and there is nothing in it which is necessarily illegal. The only factor to which objection is taken is concerted
action on the part of two or more persons ; but is not this in itself the
essence of the right of association ? Is it not precisely such a union of
individual power and individual will which is the characteristic of association. " * '
T h e Reporter on the A c t in t h e Senate w a s n o less categorical
in h i s statement :
" Article 20 of the Constitution " he said, " makes it impossible to
prohibit or to punish as such, combinations
which are nothing but associations with a determinate object. " 2
T h i s reasoning convinced t h e Chambers, a n d sections 414 a n d
415 of t h e old Penal Code were repealed. F r o m this time onwards,
combination, considered as a form of t h e right of association, w a s
guaranteed under Article 20 of the Constitution.
T h e question then arose, however, whether combination, although
per se legal, could, for t h e future, b e freely developed solely within
the limits laid down by t h e ordinary law. T h i s w a s n o t the view

1
Cf. NYPELS : Législation criminelle de la Belgique, Vol. I I , p. 555;
cf. also Pandectes belges : " The Freedom of Association " and " The
Freedom of Meeting ".
a
Cf. O. ORBAN : Le droit constitutionnel de la Belgique, Vol. n i ,
P- 579-

202

FREEDOM OF ASSOCIATION

taken by the Legislature. W h i l e refusing to adopt an additional
section providing for the penal repression of any concerted stoppage
of work, of which previous notice had not been given within a legally
fixed time-limit, t h e Chamber adopted section 310, which substitutes
for the delict of combination the delict of prejudice caused to the
freedom of labour.
Delict of Prejudice

to the Freedom

of Labour *

In its original version section 310 ran as follows :
Any person who, with the object of enforcing a rise or a reduction in
wages, or of prejudicing the free exercise of industry or labour, commits
any act of violence, or utters any threats or abuse, or orders fines,
prohibitions, restrictions or boycotts of any kind whatsoever against
persons who are working, or against persons who employ labour, shall
be punished by a term of imprisonment varying from eight days to three
months, and by a fine of from 16 to 500 francs, or by one of these two
penalties alone.
I n adopting this new text, the object of the Legislature was
twofold. I t was first desired to give some special protection to nonassociated persons, and secondly, to protect the freedom of labour in
general.
T h e logical idea of the freedom of labour (as explained above)
had been in no way restricted. I t will be remembered that no delict
arising out of prejudice caused to this freedom could result, except
from the act of a third party, a n d never from the act of the parties
concerned, since the contractual liberty involved remained untouched.
Belgian legal theory developed this principle on the clearest
possible lines :
" Although the new Penal Code ", said the Ghent Court, " allows both
workers and employers to associate and to come to an agreement on the
subject of wages and conditions of labour, this is only to the extent to
which, in so doing, they do not prejudice in anv way the free exercise
of labour or industry by other parties. " =
" Although the workers ", added the Court of Cassation, " are
entitled to meet and to agree with one another for the determination of
wages and conditions of labour, to refuse to work, or to work only in
1

Cf. Pandectes beiges : " Coalition " ; " Increase and Reduction of
Wages " ; " Workers* Strikes " ; " The Freedom of Labour ". Cf. also
SIMONS : " Section 310 of the Penal Code ",.in his Revue du droit pénal
et de criminologie, 1909, pp. 687 et seq.
' Ghent Court, 17 May 1870, Pasinomie, p . 292.

BELGIUM

IO3

places under the authority or in the company of persons who are acceptable to them, the use of this right is limited, and abuses of it are
repressed by the law which protects the freedom of labour and industry
of those who refuse to yield to the exigencies of such persons. " '
The prejudice caused to the freedom of labour thus defined was
punishable, whatever the objects pursued by the transgressors of
the law. Sympathetic strikes and political strikes, which, like all
other strikes, were not amenable to law, fell nevertheless under the
law if they involved any prejudice to the freedom of labour of a
third person 2 . None the less, there was no delict unless the prejudice
caused to the freedom of labour had been deliberately intended, and
the determination of this fact was left to the judge 3 .
It will be observed that in theory at least, section 310 reestablished the equality before the law of the two parties, employers
and workers. The prohibition was perfectly general, without distinction ; that is to say, the system was no longer applied to the
wage earners alone, as under the former section 416, but also to the
employers and to third parties. Furthermore, the law made no
distinction between individuals and associations or heads of
associations *.
Such is the general system established by section 310. It may
be well to endeavour to deduce its practical value by considering in
detail the methods of pressure which it is its object to repress. It is
clear that in the first place among such come violence and threats,
which are delicts under the ordinary law. But the scope of the
delict was considerably extended when it came to deal with acts which
might prejudice the freedom of labour. Indeed, section 310 increased
the severity of the Penal Code of 1810, which punished only fines,
restrictions or boycotts, and left violence, threats and abuse in the
domain of the ordinary law. According to the new Code the term
1

Court of Cassation, July 1870, Pasinomie, p. 417.
Criminal Court of Tournai, 25 April 1902, Pandectes périodiques,
1902, No. 507.
3
Civil Court of Natnur, 21 June 1903, Pandectes périodiques, 1903,
No. 59.
* Logically, it would appear that the scope of section 310, which
guaranteed freedom of labour in a general manner, should have extended
also to the relations of manufacturers with one another, as well as to the
relations of heads of undertakings with their workers. As a matter of
fact, as regards relations between competing manufacturers, certain forms
of prejudice to the freedom of industry have come under the head rather
of unfair competition.
2

204

FüKEDOM OF ASSOCIATION

" violence" covered not only blows and wounds (cf. section 398 of
the Penal Code)-, minor acts of violence, and assault proper (cf. section 463, paragraph 3 of the Penal Code), but in general any act of
personal constraint.
The term " threat " is not confined to
the definition given to it in sections 327 et seq. of the Penal
Code, nor to methods of moral constraint through the fear of some
imminent danger (cf. section 383 of the Penal Code), but extends
to any measures which might prejudice the free exercise of industry
or of labour. Thus, any threat ©r abuse with the object of making
workers enter an association was considered as liable to prejudice
the freedom of industry. It was not necessary that the person of the
threatened worker should be determined. A contingent threat was
sufficient, of such a nature as to be aimed at intimidating the worker
and so preventing him from working. If this were so, the essential
factors of a delict were held to be present.
Finally, section 310, like the Penal Code of 1810, prohibited
fines, prohibitions, restrictions, or boycotts of any kind whatsoever.
Considerable difficulty was found in the interpretation of these terms.
Two fundamental legal principles were here in conflict, namely, the
principle of contractual freedom applied to the trade union agreement,
and the principle of the freedom of labour. And the question arose
which of the two should give way to the other. " In all combinations "
said a deputy during the discussion of Section 310, " there must
necessarily be a prohibition and a restriction. Since it is not the
object of the Penal Code to repress all forms of combination, the Code
cannot repress all forms of prohibition or restriction. All associations
must be entitled to secure the execution of their rules, and must be
enabled to inflict fines and penalties. Penalties established as the
result of free agreement cannot be considered as acts of restraint
and violence, and cannot fall under the law " x.
This view did not carry the day. The Reporter replied that
it was the essential purpose of the Act to prosecute fines reached as
a result of an agreement. " Impunity in this matter ", he said,
" would allow of the creation of large-scale militant associations,
and would incite strikers to exercise undue pressure on workers who
might be willing to resume work " 3 .

1
Speech of Mr. van HUMBECK, Annales parlementaires, 1866, p. 843.
? Pandcctes.bclges : ". Increase aud Reduction m Wages " No. 48.

BELGIUM

<>5

Thus, although the Legislature of 1867 did not intend altogether
to repress the right of combination and the right to strike, it did
endeavour to confine the right of occupational association within
the strictest possible limits. It viewed with apprehension permanent
combinations and organised trade unions with proper constitutions and
rules. Legal theory also interpreted section 310 in favour of the
freedom of labour as against contractual freedom, repressing the
contractual power of an association to fine its members, and declaring such agreements null and void, as having been illicitly arrived
at1.
In 1898 the question of the legality of fines was once more
raised during the discussion of the Bill on the recognition of trade
unions. The Minister of Justice of the day considered that the
prohibition of the contractual power to fine was to some extent
incompatible with the natural influence exercised over its members
by a recognised union, and proposed that section 310 should be
amended by the deletion of the words " who orders fines, prohibitions, restrictions or boycotts of any kind whatsoever ". The Chamber, however, did not dare to make any direct attack on section JTO,
but confined itself to inserting in the Trade Union Act the following
passage : " Sanctions enacted by trade unions to secure the observation of their rules can in 110 way prejudice the rights of outside
persons " (section 4, paragraph 9). This meant that only sanctions
which were confined to restricting the rights of members of the
union were authorised, and that the scope of section 310 was in no
way limited.
Greatly as the prohibition of ordering fines threatened to paralyse
trade union organisation, the prohibition of ordering restrictions and
proscriptions of any kind had still more serious consequences. It
rendered it virtually impossible for the trade unions to intervene
in the normal way in the relations between parties to the labour
agreement. It has been seen that contractual freedom, in so far as
it did not prejudice the freedom of labour of third parties, was one
of the essential elements of the freedom of labour. The practical
results of this principle were as follows : restrictions or boycotts
of any kind, enacted by the trade union, which, in the view of
the Legislature, was no more than an unauthorised third party,
1

Brussels Court, 4 Oct. 1891, Pasivomie, 1892, p. 66 ; Court of Cassation, 7 Dec. 1891, Pasinomie, p. 44.

206

FREEDOM OF ASSOCIATION

constituted the delict of prejudice to the freedom of labour. If
similar restrictions or proscriptions were enacted by the employer,
who was a party to the agreement, they were no more than the legitimate exercise of his contractual freedom. If was not the intention of
legislation, said a decree of the Brussels Court, to punish employers
who in person inflicted fines on, or put into practice restrictions or
boycotts of any kind against, their workers l . In the case in question, the issue was concerned with a dismissal for trade union reasons.
The court refused to apply section 310, arguing that employers who
refused to engage or who dismissed a worker in order to prevent him
joining a trade union were not prejudicing the freedom of labour of
the worker, since the latter had not on his own account any inherent
right to be engaged 2 .
Similarly, a decree of 28 June 1911 decided that the fact of making
the engagement of workers conditional upon their belonging to a
given trade union was no more than an ordinary employment of the
principle of the freedom of labour 3 . Thus, in a similar de facto
situation, namely, that of a concerted refusal to work by the workers
in order to prevent the engagement of non-unionists, and the refusal
of the employer to engage a unionist worker, acts which on both
sides implied a violation of trade union liberty, the former was the
only one which came under the law. To sum up, the employer had
full legal freedom to take any exclusive action whatever in order
to prevent workers from joining the trade union of their choice.
The system of repression inaugurated by section 310 was doubly
strengthened by the Act of 1892, in the first place by an increase in
the penalties provided (i.e. imprisonment of from eight days to three
months was replaced by imprisonment from one month to two years ;
the minimum fine was increased from 26 to 50 francs, and the maximum to 1,000 francs); secondly, by the repression of further methods
of exerting pressure, in particular, acts of intimidation. For this
purpose a new paragraph was added to section 310 as follows :
The same penalties shall be enacted against persons who prejudice
the freedom of masters or of workers either by meetings in the vicinity
of the undertakings in which work is being carried on, or near the
residences of persons who are directing such work, or by means of acts
of intimidation against workers who are going to or coming from work
3

Brussels Court, 28 June, 1911, Belgique judiciaire, 1911, p. 925.
' Pandectes beiges : " The Freedom of Labour ", No. 38.
* Brussels Court, 28 June, 1911, Belgique judiciaire, 1911, p. 295.

BELGIUM

or by causing explosions near undertakings in which work is being
carried on, or in localities inhabited by the workers, or by pulling down
the enclosures of undertakings in which work is being carried on, or by
destroying the dwelling places or lands occupied by workers, or by
destroying or rendering unfit for their proper use the equipment, implements, apparatus or engines of labour or industry.
Such acts of intimidation were punishable on two conditions.
T h e y had to be perpetrated with the special intention of prejudicing
the freedom of labour, a n d it was also necessary that such prejudice
should have been effectively caused. I t became necessary, therefore, in the first place, to calculate a n d appreciate the material fact
of intimidation and then the special intention of causing prejudice 1.
I t was, however, not essential that the worker should have
yielded to intimidation in the legal sense. Prejudice was held to be
caused to t h e freedom of labour so soon as the act committed was
of such n a t u r e as to inspire.such apprehensions. T h e abandonment
of work was not the only result of such actions provided for by t h e
Act2.
.Such, it might be said, was the situation up to a very short time
ago. I t has been necessary to set out its main lines in order to
allow of the scope of the Act of 24 May 1921 being understood. T h i s
Act purely and simply abolished section 310, thus eliminating t h e
penal theory of prejudice to the freedom of labour. I n the meantime
the T r a d e Union Act oí 31 March 1898 had allowed trade unions to
acquire civil personality ; but the Act remained virtually a dead
letter. It may be well to finish the historical survey by an analysis of
this Act before considering the present day position.

R E C O G N I T I O N O F T R A D E U N I O N S ( A C T O F 31 M A R C H

Basic
fa) Persons

Allowed

1898)

Conditions

to be Members

of a Trade

Union

Under the Act of 31 March 1898, in order to obtain legal personality a trade union had to be formed of persons engaged in some occupation in industry, commerce or agriculture, or practising a liberal
profession for profit, on condition that all such persons carried o n

Documents parlementaires, Chamber of Deputies, 1891 to 1892,
P- 143a
Verviers Court, 13 Oct. 1893, Pasinomie, 1894, p. 37 ; Liege Court,.
15 Dec. 1893, Pasinomie 1894, p. 153.

FREEDOM OF ASSOCIATION

20&

the same or similar occupations or exercised the same craft or crafts
conducing to the manufacture of the same products (section 2).
Joint unions of employers and workers were admitted on the same
conditions to the benefits of the Act. The union had to have at
least seven active members. Minors of 16 years of age and married
women might be members of a union in default of opposition on the
part of the father, guardian, or husband, notified to one of the leaders
of the union or to a representative of the management of the union.
If there was opposition, minors and married women might appeal
to the courts.
The union might admit honorary members, even if not in the
occupation concerned, but the number of such members might not
exceed a quarter of the number of active members (section 3).
Foreigners authorised to reside in Belgium, and actually resident
•in the kingdom, might be members of a union. On the other hand,
officials or employees of a public department were excluded from the
benefits of the Act.
Federations of trade unions were granted civil rights on the
same conditions as the unions, provided that they were entirely
composed of persons engaged in similar or analogous occupations.
(b) Legitimate Aims of a Recognised

Union

In order to enjoy civil rights, a trade union had to have as its
object exclusively the protection and the development of the occupational interest of its members (section 2).
It was the object of the authors of the Act to encourage the
workers to defend their occupational interests, but it was also their
object to prohibit workers from associating for political or religious
ends, and from committing acts which might be interpreted as being
dictated by considerations of this nature.
During the discussion of the Bill in the Chamber, as regards
the interpretation to be given to the word " exclusively ", the Government pointed out that unions might not compel their members
to pay contributions to political funds or to carry on any active
propaganda or submit candidates for election to any constituted
body '. This prohibition was probably one of the chief reasons
1

Annales parlementaires, 1897-1898, p. 84, quoted by BARNICH In
La législation et l'organisation ouvrière en Belgique, p. 271.

BELGIUM

¿OC

which led the trade unions — which in Belgium are closely bound
up with the various political parties — to abstain from claiming the
advantages of civil personality.
Formal Conditions
The existence of a trade union is enshrined in its statutes. Such
statutes had to mention the following points :
( 1 ) The name of the union and its headquarters.
(2) The objects of the union, in order that it might be ascertained
whether such objects were in conformity with the law.
(3) The conditions on which its members became or ceased to
be members : thus each member was entitled to retire from
a~ union at any moment, and the union could claim from
him only the amount of his back and current contributions.
(4) The organisation of the management of the union and the
administration of its property. The method of nomination
of and the powers conferred upon persons entrusted with
such management and administration.
(5) The period of the mandate of such persons ; such period
might not exceed four years, and the mandate could always
be revoked by the general meeting.
(6) The method of investing union funds. Unions were forbidden to take shares in commercial companies.
(7) Accounting methods.
(8) The procedure for the amendment or revision of the statutes,
as also for the dissolution of the union. All such decisions
had to be taken by a three-quarters majority of the members
present at a specially convened general meeting, and representing at least half the total number of members.
(9) The sanctions to be taken by the union, if necessary, for
securing observance of its regulations : in this case, while
allowing the union to exercise a certain discipline over its
members in order to constrain them to respect its statutes
and decisions, the object of the Act was to prevent such
discipline being so enforced as to harm third parties. The
Act stated that such sanctions could not be accompanied by
acts or provisions of such a kind as to prejudice the rights
of persons outside the union.

Freedom of Association

¡4

FREEDOM OF ASSOCIATION

310

Furthermore, the authors of the Act merely tolerated the sanctions taken by the union against its members. They did not permit
fines inflicted to be claimed in a court of justice. To quote their
actual words : " Such sanctions may not be the subject of any action
at civil law ".
(io) Finally, the Act required that trade unions which were
desirous of securing civil rights should bind themselves in
their statutes ío endeavour~to seek by agreement with the
other party methods of settling either by conciliation or by
arbitration any dispute which concerned the union and was
connected with conditions of labour l(section 4).
The following had also to be annexed to the statutes :
(1) A list of the members who in any capacity whatever took
part in the management of the union or in the administration
of its property. Against each name~and Christian name had
to be given an indication of the nationality, age, residence
and occupation of the person concerned, and a statement
whether he was an active or an honorary member.
(2) A statement, signed by the leaders of the union, declaring
that, as regards the various classes of its members, the union
had been formed in accordance with t h e ! legal regulation
(section 5).
The statutes, together with their annexes, had to be deposited
at the Registry of the Mines Council.
Administrative

and Financial Control of Trade Unions

It was the duty of the Mines Council, constituted in the form of
trade union ratification committees, tol~satisfy itself that the necessary legal conditions had been observed.' In the event of this being
so, the Mines Council declared the statutes ratified, and ordered the
publication both of the statutes and their annexes in the Moniteur
within 15 days of the date of ratification. Civil rights were enjoyed
by the union within 10 days from the date of publication (section
6). Acts amending the statutes concerning administration or management were not valid until they had been deposited, verified and
published in accordance with section 6 (section 7).
In addition, a recognised union had to forward the following
documents to the Mines Council :
(1) A statement of its revenue and expenditure, together with

211

BELGIUM

its buying or selling operations after its accounts had been
approved by the general meeting and submitted within a
15 days' time-limit for the inspection of the members at its
headquarters. Such accounts were not published without
the consent of the union.
(2) A list of its acting officers and administrative chiefs, which
list was published in the Moniteur.
(3) A declaration on the part of such officers that the composition of the union c was in accordance with the law (section 8).
The list of members was not submitted to the authorities. It had,
however, to be deposited and kept at the headquarters of the union
for the inspection of any member.
Dissolution of Trade Unions
A recognised' union might be dissolved by the courts on the
request of the Public Prosecutor, or of any party concerned, when
it was pursuing aims or carrying on operations prohibited by the
law, when it was employing its property for unauthorised objects
or when its management was .not constituted in accordance with the
law (section 14). Before it was dissolved, however, a union might
be called upon to conform with the law. Such summons was published and no decision could be taken on the request for dissolution
until three days after publication.
In the event of dissolution, the assets of the union, after payment
of debts and the return t.o the creditor or his assigns of gifts and
bequests in the case of which such right of recovery had been stipulated in the Act of donation, were employed for some similar purpose
either expressly designated in the statutes or chosen by the general
meeting.
When the question of the disposal of the union's assets had not
been settled or when, in the opinion of the Mines Council, such
assets had been disposed of contrary to the law. the property of the
union was taken over by the State to be used for objects connected
with occupational education (section 16).
Advantages Enjoyed by Recognised

Unions

A recognised trade union might acquire freely for a consideration ; it could acquire gratuitously only on the same conditions as

2 í2

FREEDOM OF ASSOCIATION

mutual benefit societies, that is to say, if authorised to do so. As
regards real estate, the union could possess only the amount necessary
for its meeting places, offices, occupational schools, libraries, collections, laboratories, testing grounds, employment exchanges, labour
chambers, apprenticeship workshops, asylums, hospitals, etc (section
II).

A recognised union could appear in the courts either as plaintiff
or as defendant. It was entitled to defend not only its own rights,
but the individual rights of its members in so far as such rights were
derived from their position as members (e.g. arising out of an agreement concluded for them by the union). Further, the Act safeguarded the individual liberty of the members by giving them the right
to act directly, to associate themselves with the action of the union,
or to intervene in the proceedings.
Unless special statutes provided to the contrary, the union was
represented in the courts by its officers or by those of them who
were chosen for the purpose by the general meeting (section io).
In the economic and social sphere a recognised union was not
entitled to carry on any trade for profit. It could, however, engage
in the following activities :
(i) Agreements, and in particular purchases and sales necessary
for the proper working of its apprenticeship workshops.
(2) Purchase, for resale to its members, of raw materials, seeds,
manures, stock, machines and other implements and, generally speaking, of any object necessary for the exercise of
the occupation or craft of any of its members.
(3) Purchase of the products of the occupation or craft of any
of its members, and resale of such objects.
(4) Any operation on commission on behalf of its members connected with the operations referred to in (1) and (2) above.
(5) Purchase of stock, machines and other implements and,
generally speaking, of any object destined to remain the
property of the union and to be put at the disposal of its
members from time to time for. the exercise of their occupation or craft.
None of these operations could give rise to any profit. They
were not held to be commercial transactions and were accounted for
separately in the books of the union.

BELGIUM

213

The trade union mark of a recognised union was assimilated to
trade and commercial marks (section 2).
A union might set up unemployment funds, but not mutual
benefit funds, since it was intended that this should be left to the
mutual benefit societies proper.
Such are the main lines of the 1898 Act. The great majority of
the trade unions preferred the system of ordinary law, of the freedom
of association pure and simple guaranteed by Article 20 of the
Constitution, to the system set up by the Trade Union Act. There
are various reasons for this, and only the most important will be
dealt with here.
In the first place, the trade unions were jealous of their independence, and were apprehensive of the Government authorities
intervening in their domestic life. They protested particularly against
section 2 of the Act, which said that a trade union was formed " exclusively " for the consideration, protection, or development of the
occupational interests of its members. If the close relations between
the trade union and the political movement in Belgium be considered,
it may easily be seen that the necessary consequence of this limitation was to prevent the majority of trade unions from accepting the
benefits of the Act *.
Furthermore, the necessity of depositing a list of the members
who in any capacity took part in the direction of the union or in
the administration of its property would appear to have been not
without disadvantages, if account be taken of the way in which the
employers so often boycotted unionist workers with impunity. Such
disadvantages, which are inherent in legal control, would not appear
to have been balanced by adequate advantages on the other side.
Although the right of acquiring and possessing property and appearing in the courts was guaranteed to the trade unions within certain
limits, the Act granted them no power of representing their occupation. As under the system of section 310, a union had no ex officio
mandate to intervene in relations between contracting parties.
This was a point upon which special stress was laid when the
Labour Agreements Act was being discussed in 1900. The Minister
of Labour of the day stated categorically that the trade unions were

Cf. E. VANDERVELDE : La Belgique ouvrière, p. 99.

ai4

FREEDOM OF ASSOCIATION

entitled neither to conclude nor to denounce collective agreements,
nor to take legal steps to secure the execution of such agreements l .
To put the matter briefly, the recognised unions, like nonincorporated unions, continued to be considered as third parties on
the labour market. Statistics published annually by the Revue de
Travail show that, as Mr. Mahaim had already predicted in 1898 3 ,
only the agricultural employers had really benefited under the new
Act since, thanks to the facilities given by the permission for the
joint purchase of implements and for the joint sale of their products,
they did derive some of the advantages which are enjoyed by centralised and co-ordinated undertakings.
Belgian trade union law was subsequently to be completed in two
directions : de jure, by the abolition of section 310 and by a special
system of protection of the system of freedom of association against
attacks made upon it by individuals, which was the object of one of
the two Acts of 24 May 1921 ; and de facto, by the recognition of
trade unions as duly qualified representatives of the working-classes,
both in relations between contracting parties and in relations with
the Government. This result was obtained mainly owing to the
increasing power of the trade unions, the history of which must now
be briefly summarised.

§ 2. — History of the Trade Union Movement
The history of Belgian trade union legislation shows that both
revolutionary legislation, in abolishing the guilds of arts and crafts and
forbidding occupational associations, and the liberal legislation, which
in 1867 created a special delict of prejudice to the freedom of labour,
were anxious to set up, in place of the old system of the detailed
regulation of social relations, a system of free and individual competition. The modern tendency has been in the other direction, towards
the reconstruction of occupational organisations, on a fresh basis,
certainly, but with substantially equivalent attributes. The main
steps of this process of reconstruction may now be briefly traced.
1
Pandectes beiges : " The Labour Agreement ", Vol. 113, Nos. 196
er seq.
* " Das belgische Gesetz über die Berufsvereine ", Soziale Praxis,
1898, Vol. VIII, p. 60.

BELGIUM

2'5

T R A D E UNIONISM AMONG THE WORKERS '

At the outset, and before the new economic conditions could
evolve into the forms of association which were best adapted to the
changed conditions, certain of the old types of group may be seen
still in existence, and in some cases surviving even to the present day,
thus showing the persistence of certain traditions and requirements.
Such were and still are at Bruges, Furnes and other towns of
Northern Belgium, the trade associations of bakers, beer porters and
other porters, which have preserved all the characteristics of the
old-fashioned guilds, namely, the monopoly of labour, minute regulation of the occupation, and even the old religious ritual. Others,
like the famous Nations at Antwerp, powerful associations of porters
and dockers, which are indubitably of guild origin, have ended by
becoming practically capitalist undertakings.
But it is not in such survivals that the origin of modern trade
unionism must be sought, but rather in the " Joint Chambers ", mutual benefit societies dating back to the beginning of the nineteenth
century. These rather seem to be the nurseries of working class
solidarity. Organised on an occupational basis, including indifferently masters and journeymen, religious as well as economic communities, their methods of organisation were based on those of the
guilds. Like the guilds, they recruited their members among artisans with various occupational capacities, such as printers, joiners,
Shoemakers, blacksmiths, tailors, etc., and are the real expression
of the need for association felt by an era which was characterised
by the predominance of crafts over industry.
Towards the middle of the nineteenth century (1850-1865) a
profound change, due to the extension of manufacturing industry,
came about in the position of the mutual benefit societies. The
separation between employers and workers, whose interests ceased
to be common and became even antagonistic, developed more and
more, the religious character of the associations disappeared, and to
schemes of mutual assistance was added the policy of the defence

'-Cf. V. L. DECHESNE : Syndicats ouvriers belges and Economie Syndicale; E. VANDERVELDE : Enquête sur les associations professionnelles
d'artisans et d'ouvriers en Belgique, 1892 ; and La Belgique ouvrière,
1906 ; E. MAHAIM : Etude sur l'association professionnelle ; L. VARLEZ :
Quelques pages d'histoire syndicale belge, (Memoirs and Documents of
the Musée social, 1902).

3IÓ

FREEDOM OF ASSOCIATION

of wages. Hence, their name of " price maintenance societies ".
Composed of skilled workers, and sometimes of real importance, they
employed tactics of passive resistance instead of the strike, which
was prohibited.
They endeavoured to monopolise labour, to
exercise an arbitrary discretion over the placing of their members,
to regulate the number of apprentices, to equalise conditions of labour
by the conclusion of collective agreements, and to make it compulsory for all wage earners to join their association. But this policy,
which was to a large extent borrowed from the old system, was in
the long run a failure. The substitution of mechanical industry for
hand manufacture and for crafts rendered unnecessary the long and
arduous periods of apprenticeship, made possible the engagement
of unskilled labour, and rendered nugatory the policy of cornering
the labour market. The earlier organisations gradually broke up
and were compelled to reconstitute themselves on a different basis ;
that is to say, they gave place to the wage earners' trade unions in
large-scale industry.
The preliminary period was one of confusion. Newcomers to the
organisation, who lacked the trade union tradition and objected to
the occupational discipline involved, which always entailed sacrifices,
were capable of associating together under the pressure of distress
only in ephemeral organisations, real " mushroom unions ", which
were born and disappeared with the strikes they engendered. But
the trade union movement was able to discipline and strengthen itself
under the influence of two events, one local, the other political,
namely, the abolition in 1866 of the delict of coalition and strike, and
the creation of the Workers' International, followed a little later, in
- 1886, by the foundation of the Labour Party.
The close union between political and trade union elements is
one of the chief characteristics of the Belgian trade union, movement.
The various political Parties, Catholic, Liberal and Socialist, all
wished to take charge of,, and be supreme in, the work of trade
union organisation. It should be added at once, however, that this
agreement between the Parties and the trade unions in no way affects
the independence of the movement within the joint organisation 1.

1
The best proof of this is that the Trade Union Committee of Belgium has been able to obtain the adherence of the most powerful nonpartisan trade unions, such as the federations of bookbinders, glass workers and diamond cutters.

BELGIUM

217

A second distinctive characteristic of Belgian trade unionism is what
may be called the " multiple basis " organisation. Taught by their
previous experience with the " mushroom unions ", the trade union
leaders came to understand that a group resting on a single basis
cannot attach the wage earners to itself in any certain or definitive
manner, that, apart from assistance in moments of open strife for
the conquest of better conditions of living, the wage earners are
anxious to find in their group some evidence of a continuous, or,
so to speak, almost daily solidarity, in the event of accidents, sickness, old age or involuntary unemployment. Moreover, since the
Belgian workers' will to combine has always, by preference, expressed
itself in mutual benefit societies and co-operative societies, the trade
union movement might well have encountered great difficulties if
it did not succeed in laying hands on these powerful organisations.
To-day the combination in a single body of militant unions, cooperative societies and mutual benefit societies is a fait accompli.
For the Belgian workers' movement this is the best guarantee of
its hardihood and stability \
Side by side with this co-ordinating movement, the chief characteristic of which is the amalgamation of the co-operative societies
and the mutual benefit societies with the trade unions, there has
developed what may be called the movement towards concentration.
About 1885 the powerful national federations began to establish
themselves. Side by side with that of the printers, which is the
oldest of all, there came into existence the federations of wood workers, cigar workers, metal workers, stone workers, and miners. To coordinate the whole movement and to give it unity of policy, the
Socialist Congress of Verviers set up, on 11 April 1898, the Trade
Union Committee of Belgium.
In actual structure the Trade Union Committee is based upon
the affiliation of the central unions. As regards organisation, trade
unions of the first degree, and the district trade unions corresponding
to the various branches of the same trade, are transformed into mere
local or district sections. Contrary to the rule under the federal

1
" It is easy to understand, " said Mr. Vandervelde at the 25th
anniversary of the foundation of the Trade Union Committee of Belgium,
" that the workers' organisation needs its health service, i.e. the mutual
benefit societies, its commissariat, namely, the co-operative societies,
and its fighting ranks, namely, the political and militant trade unionists ". (Minutes of the 22nd Trade Union Congress, 1923, p. 106).

II«

FREEDOM OF ASSOCIATION

system, the local groups are no longer completely independent, but
are reduced to playing a merely intermediate part between the Central Committee and the affiliated members.
The advantages of this rigid centralisation are numerous. In
the first place, the system is better for recruitment, since the statutes
of the central unions allow direct affiliation to the national organisations in cases where there is no local section. Secondly, trade union
institutions, such as mutual benefit societies, co-operative societies,
employment exchanges, occupational education, etc., can be
developed under a strong centralised system of administration and
finance. A proof of this is the Workers' Education Centre, created
in 1911, which, by means of its various educational institutions (local
and district education committees, Socialist schools, sectional or
workers' delegates' schools, workers' high schools, trade union
" weeks", libraries, etc.), is able to supply the workers with the
economic and technical knowledge necessary for the proper conduct
of an organised movement l. Lastly, negotiations undertaken for
determining labour conditions, or during disputes or conciliation
proceedings, are more likely to succeed if, in place of being conducted
by a local trade union working with its individual resources, they
are conducted by powerful central unions.
Moreover, the formation of central unions would appear not to
be the last stage. Since the war in particular efforts have been
made for the foundation of a single national trade union, including
all workers in all occupations. It may be asked whether this idea is
feasible in the near future. For the moment it would appear that
the diversity of the systems of insurance and mutual benefit in the
various trade unions, as well as the diversity of the risks run in the
various occupations, constitute obstacles to the establishment of a
uniform contribution for all members, which would appear an essential preliminary condition for the creation of a single national union 2 .
The essential characteristics of the Socialist trade union movement in Belgium are : unity of outlook, secured by party discipline ;
economic and financial stability, due to the triple alliance between
the trade unions and the mutual benefit and co-operative societies ;
1

Cf. INTERNATIONAL LABOUR OFFICE : " Workers' Education in

Belgium, " by H. DE MAN, International Labour Review, Vol. VI, No. 4,
P- 5273
Cf. J. BONDAS : " Delimitation of Trade Union Frontiers ", in Les
Cahiers de la Commission syndicale de Belgique, No. 6, 1924.

BELGIUM

2I9

and trade union cohesion and co-ordination, due to the centralising
of the organisation. Such are the weapons which will permit the
trade unions gradually to carry out their chosen programme.
The final item of this programme, the achievement of which is
still far off, is that of the political parties wit.h which the trade unions
are bound up, namely, the conquest of political power by the legal
method of universal suffrage. But side by side with political aims,
the trade unions do not neglect their occupational objects. In 1904,
when the centenary of the Civil Code was celebrated, the first edition
of the Belgian Labour Code appeared, in bulk as voluminous as the
hundred-year-old Code. This coincidence was intentional, since the
labour laws in question were intended to " make good the defects of
the Code Napoléon, in particular as regards the contract of service " '.
Since this period, various reforms, some of them of capital importance, such as the Eight Hour Act of 14 June 1921, have been
milestones of further progress on the part of the trade union movement 2 .
But as trade union organisation in Belgium attains its maturity,
it tends " to reject legal protection as a useless buckler ". It is
preferred that the emancipation of the workers should be accomplished by the workers themselves 3 . Convinced as it is that social
improvements are a function of economic conditions, trade unionism
intends to extend its efforts to the work of industrial reorganisation.
For this purpose, as the result of a decision taken at the Congress of
17-18 October 1920, the Trade Union Committee of Belgium set up
an Economic Council, to draw up schemes or draft regulations, according to the nature or degree of centralisation in the industries or
trades concerned. It is also its intention to continue to urge the
appointment of works councils, shop and yard councils, office councils, etc., and to endeavour to secure control of industry, with a
view to nationalisation and socialisation. For this purpose the Economic Council is to draw up a scheme of economic organisation,
both national and international. In the sphere of labour
legislation, whether as regards its enforcement, or as regards amendments which might be introduced into it, the Council will act as a
legal advisory body. Another of its more important duties will be
1
a

E. VANDERVELDE : La Belgique ouvrière, p. 78.
Code du travail beige, by J. DESTRÉE, M. HALLET, E.

E. JANSON,

1924.

" Jbid., J. DESTRÉE : Preface, p. v.

SOUDAN,

and

FREEDOM OF ASSOCIATION

220

general and technical education and the proper organisation of the
workers' spare time 1.
Such are the main lines of the constructive programme of
Socialist trade unionism. It is a fact not without significance that the
work of the Socialist and the Christian trade unions tends to converge in the sphere of industrial reorganisation. The problem of
economic and industrial evolution makes it necessary for all the
occupational organisations to work in a uniform mould, not only
from the point of view of method, but also from the point of view of
action.
Thus, the Democratic League, which was founded in 1891 under
the auspices of the Catholic Party, began by uniting employers and
workers in mixed unions of a fraternalist nature, with a view to
the joint study of the best methods of improving the moral and
material situation of the workers, and of securing harmonious relations
between capital and labour on the basis of common religious principles. But the Catholic workers were not slow to abandon the
system of fraternalist associations and to form trade unions on the
Socialist model composed entirely of wage earners. The same tendency towards integration is to be met with to-day in the Christian
trade union movement, by the addition to the trade unions of cooperative and mutual benefit societies, and the same tendency
towards concentration by means of the creation of large national
Federations, which in their turn are united in the general Federation
of Christian Trade Unions.
The development of the two movements has thus been identical.
Identical also are their programmes, at least as regards immediate
claims. To the socialisation schemes of the Belgian Labour Party
correspond the " Economic Organisation " schemes of the Christian
trade unions. The following are the main ideas of the latter, according to the report of the General-Secretary of the General Federation
of Christian Trade Unions, and according to the resolutions adopted
by the Christian Trade Union Congress of 4-5 June 1921 :
In the economic, as in other spheres, organisation is the natural form
of society. The principles of economic liberalism are bankrupt and
society continues to organise despite them. . .
Although it is essential that the Christian trade union movement
should be independent, the Christian trade unions should, nevertheless,
show their readiness to collaborate, in all circumstances where the interests of the workers demand it, with organisations professing other
opinions . . .
1

Revue du Travail, 1921, p. 772.

BELGIUM

221

The State should above all guarantee trade union liberty
Such State intervention as is immediately necessary should be as free
from arbitrariness as possible '. It should be prepared and carried out
in agreement with existing organisations and, wherever possible, such
organisations should be the recognised executive organs.
The State should as soon as possible give legal sanction to occupational regulations drawn up by these organisations. The joint wages
boards, the decisions of which are only morally binding on the parties
concerned, should be enabled to legislate in the true sense of the word
in the question of conditions of labour.
The competence of the wages boards should be, so far as possible,
extended to the control of industry, to the regulation of production,
prices, and of occupational interests in general. The principle of equality
of representation between employers and employed should be observed
in the composition of the boards.
A board should be set up to advise the Government in matters concerning the encouragement and development of industrial organisations.
All branches of industry should be represented on this board . . .
The board should become an economic council with legislative powers,
just as the wages boards should become occupational councils with
the right to legislate in their own sphere. The occupational councils and
the economic council will themselves supervise the execution of their
decisions.
Thus an organised economic system will be attained. The various
occupations will be organised, co-ordinated and exploited for the common good by the Central Economic Council and, from the legal point of
view, this organised economic system will be an independent one a .
I t will be seen that there are m a n y points of contact between the
constructive programme of Christian a n d Socialist trade unionism.
T h u s , both recognise the same principle as t h e basis of trade unionism,
namely, the principle of a centralised occupational organisation including all the wage earners. T h e i r immediate object is also the
same, namely, the rationalised organisation of production by similar
methods, the standardisation of collective agreements, the control
of industry, and economic and occupational co-ordination by m e a n s
of the Economic Council.
I t m a y be asked whether this similarity of programme and of
principles will in a more or less near future lead to unity of organisation, if not in the theoretical sphere at least in t h e sphere of occupational action. One fact, at any rate, is certain, and has been noted
from the beginning of the twentieth century by keen observers. T h e
political spirit is weakened in proportion as the trade union movem e n t properly so called develops \
T h e r e are many w h o think that the m o m e n t a union of this
1
" Aussi organique que possible. "
" Revue du Travail, 1921, pp. 623-77.!.
* Cf: L. VARI.EZ : Quelques pages d'histoire syndicale belge, pp. 81
et seq. Cf. also L. DECHESNE : Syndicats ouvriers belges, pp. 73 et seq.

222

FREEDOM OF ASSOCIATION

kind is achieved by the workers, as it has already been achieved by
the employers, a solid basis will be found for the general regulation
of the collective labour relations.
The following figures concerning the numerical development of
trade unions of various tendencies will give som.e ideas of the strength"
of trade unionism in Belgium :
(i) Membership of the Trade Union Committee of Belgium ï
Year

Members

Year

Members

1898
1899
I90O
I9OI
1902
1903
1904

I3.727
13.384
3I.3II
21,125
8,826
14.378

I9IO
ICI I
19I2
19I3
I9I4
I919
1920

68,984

1905
1906
1907
1908
1909

34.184
43.491
55.840
67,412

20,000

73.366

1921
1922
1923
1924
1925

77.224
116,082
126,745
129,177
629,736
718,410

698,384
.

618,871

594.998
577.885
594,988

(2) The membership of the General Federation of Christian
Trade Unions is at the moment approximately 180,000.
(3) The liberal or neutral trade unions contain a few thousand
workers only.
(4) As regards recognised occupational asociations, on 31 December 1925, 4,909 occupational associations had succeeded
in securing legal recognition since the enactment of the
Act of 31 March 1898.
At the same date the Ratification Committee had ratified the
dissolution of 2,146 unions.
The difference between these two figures shows the number of
existing associations, namely, 2,763.
The majority of the recognised associations recruit their members
from the unions of artisans and small agriculturists (Boerenbonden).
There are very few recognised unions of industrial workers.
T R A D E UNIONISM AMONG T H E EMPLOYERS *

When at the beginning of the nineteenth century all the old
economic and industrial systems were broken up, an immense field
. ..-'.-Cf. » E IJEKKBR .:-L'organisation syndicale, des chefs .d'industrie.
2 Vols, Brussels 1909 ; J. LEWINSKI : L'Evol-ution industrielle de la
Belgique, Brussels, 1911.

BELGIUM

223

lay open to competition. Moreover, it is beyond doubt that at the
outset economic freedom and the consequent development of individual initiative which resulted from the abolition of the guilds were
factors of prosperity. So long as every employer hoped to obtain
supremacy by the play of open competition, it was not felt necessary
to associate. But little by little the elimination of feebler competitors
gave rise to a certain economic equilibrium among the surviving
competitors, which naturally led to an agreement between them.
Furthermore, the periodical crises which threatened the existence
of isolated manufacturers, the growing power of the workers' associations and the necessity of intervening collectively with the
Government in order to obtain a fiscal and customs system as favourable as possible to the collective interests of the employers, together
with the need for stability, proved factors which mitigated strongly
in favour of organisation among the employers.
No more will be attempted here than to summarise the main
factors which led to the formation of employers' associations and
determined their internal organisation and their concentration in
occupational and national federations.
The first employers' associations appeared about 1840. They
were at the outset temporary rather than permanent organisations.
They came into being as the result of sporadic agreements, and were
generally the practical outcome of a decision taken after a mere oral
discussion which did not formally bind any of those taking part in
it. They recall to some extent the original " mushroom unions "
of the wage earners. They were no more than agreements.
It was not until the second half of the nineteenth century that
employers' associations of the modern type developed in the various
branches of industry. At the same time, the tendency towards a
real " trade union cohesion " was strengthened, and the temporary
agreements were succeeded by permanent understandings. These
latter, however, still lacked any formal bond. They were concluded
for an indefinite period ; they came into being and disappeared at
the will of the parties concerned according to circumstances and the
necessities of the moment.
. In the " conventions " which are the present form of employers'
associations, the formal bond has been added to the permanent character of the original understandings. It ensures the cohesion of the
organisation without destroying the economic independence of its

224

FREEDOM OF ASSOCIATION

members. It implies a general system of supervision which nevertheless leaves each industry to regulate its own internal affairs.
There are two aspects of organisation for the defence of
employers' occupational interests, namely, the economic and the
social. The purchase, sale and production associations, the main
constitutional principles of which have been analysed, are more particularly concerned with questions of economic self-protection,
whereas the " employment associations " (associations of employers
as such) may be compared with the workers' unions.
The rudimentary form of the " employment associations" is a
temporary coalition to employ the weapon of the lockout against the
workers' weapon of the strike. Although they were temporary at
the outset, the employers' associations soon became permanent as the
result of the standardisation of the conditions of labour which necessarily resulted from collective disputes, whatever might be the result
of them. Such a group drew up statutes and constituted an executive
body, the duty of which was to secure the supremacy of the common
will over the often divergent ideas of an individual employer. Their
community of interests was shown, not only in their voluntary submission to discipline, but also in the practical organisation which
they set up to secure effective solidarity. Unemployment funds were
then created, often with the addition of an insurance fund against
strikes.
The effective resistance of the employers, however, would probably have remained always in an incomplete state, had not the heads
of undertakings succeeded in eliminating their internal competition
on the labour market. This they succeeded in doing thanks to the
introduction of uniform conditions of labour for each occupation.
This is why the best equipped employers' associations nowadays
combine, with their organisation of resistance and their unemployment funds and strike insurance funds, the preliminary fixing of
conditions of labour.
Side by side with the internal consolidation of the associations
is developing the movement for their co-ordination, in the form of
occupational co-ordination on a national basis and of inter-occupational co-ordination on a local basis. This process was completed
by the formation of the Central Industrial Committee. Founded in
1805, as an emanation of six groups representing at that time the
main Belgian industries (coal-mining, metal-working, building,

BELGIUM

textile industry, glass-work in all its forms), it was completely reorganised just after the armistice. The Belgian Government has often
requested it to consider the numerous problems in connection with
national reconstruction, in particular those concerning the repair
of war damages and the reconstruction of economic equipment in
general. The Central Committee deals with all problems connected
with industry, in particular, social, fiscal, commercial, and financial
questions, questions relating to customs tariffs, treaties of commerce,
transport, technical education, etc. It numbers about 2,500 industrial undertakings, divided into 116 associations and sections, and
represents practically the whole productive power of the country.
A certain parallelism may be observed between the methods of
organisation of the workers' trade unions and of the employer's
associations. On both sides there is the same tendency towards coordination and unification of the movement, and the same attempt
to secure stability by organisation on a multiple basis. The social
consequences of the co-existence and parallel action of these two
trade union forces will be made clear later. They will appear both
in the relations between the two groups and in their relations with
the State.

Freedom of Association

CHAPTER II
PRESENT LEGAL STANDING AND POSSIBLE LINES OF
ACTION OF OCCUPATIONAL ASSOCIATIONS

§ i. — Present Legal Standing of Occupational Associations
The historical development of trade unionism led to a complete
remodelling of the legal theory of occupational associations, consequent upon the adoption of the two Acts of 24 May 1921, the
former repealing section 310, arid the latter guaranteeing freedom of
association.
REPEAL OF SECTION 310

(24 MAY 1921 )

The adoption of the former of the two Acts is a decisive step in
the legal evolution of the trade union question. It is equivalent to
no less than the end of the exceptional legislation concerning trade
unions, which, from that time on, came once again under the system
of ordinary law 2 . If the scope of section 310 is to be properly

1
Documents parlementaires, Chamber, No. 184, 1918-1919 ; Senate,
No. 74, 1920-1921.
1
Workers' congresses have never ceased to demand the repeal of
Section 310. Thus :
" Whereas section 310 of the Penal Code is a relic of former legislation directed against associations and the right of combination ;
" And whereas the section in question was aggravated by the Act
of 30 May 1892, and its scope extended to an indefensible degree ;
" And whereas, by its prohibition of fines, prohibitions, interdictions or proscriptions of any kind whatsoever, the section in question is
in glaring contradiction with the Trade Union Act ;
" And whereas all the delicts provided for in the section in question
are already punished by other sections of the Code, and there is no
reason for grouping them together in a special text and punishing them

BELGIUM

227

understood, it must be remembered that according to its terms, the
prohibition imposed upon trade unions of inflicting fines on their
members made it impossible to organise or maintain trade union
discipline ; i n addition, t h e fact t h a t it was illegal to issue prohibitions or proscriptions of any kind whatsoever made it entirely
impossible for any occupational association to intervene on the labour
m a r k e t on behalf of its members. Finally, neither the legislative
nor the executive power appeared to recognise the existence of trade
unions, except for the purpose of submitting them to an exceptionally
severe regime, outside the provisions of the ordinary law.
This
legislative system, which was triply detrimental to the trade unions,
i.e. in their relations with their members, in their relations with
the other party to the labour agreement, and in their relations with
t h e "Government, was declared by the 1921 legislation to be incompatible with the de facto position achieved by the occupational organisations in question. T h e Act itself, in its explanatory statement,
summarises t h u s the a r g u m e n t s in favour of the suppression of all
hindrances to trade union action :
The necessary consequence of trade union liberty is the repeal of
section 310 of the Penal Code. So long as the words " orders of fines,
prohibitions, restrictions or boycotts of any kind whatsoever " remain iu
section 310, the trade union is precluded, in its relations with its members,
from imposing the most legitimate sanctions without exposing its leaders
to prosecution and to severe penalties. . . . An association of any kind
(adds the statement) may impose fines, prohibitions or restrictions upon
its members. In the existing state of legislation an occupational union
cannot do so or, at least, not if it has not claimed legal recognition '.
T h e Act grants even unrecognised unions the right of inflicting

with excessive severity when they are committed on the occasion of a
strike ;
" And whereas the courts and tribunals have applied the section in
question in too severe and abusive a manner as regards the workers, and
whereas the Brussels Court of Appeal, in an award of 15 July 1902,
stated that section 310 was not applicable to the employers, but to the
workers only ;
" And whereas, in consequence, the section is a species of class war,
contrary both to the letter and the spirit of the Constitution.
" The Trade Union Congress, met at Brussels on 14 December 1902,
demands the unqualified repeal of Section 310 of the Penal Code, and
requests the Trade Union Committee to transmit this resolution to the
Legislative Chambers. "
(Cf. Congress of 14 and 15 Dec. 1902 ; cf. also Resolutions of the
Congresses of Jan. 1906, 25 Feb. 1920, and 4-5 July 1920.)
. ' Bill for the repeal of section 310 of the Penal Code, Explanatory
Statement, Revue du Travail, pp. 617 et seq.

J2Ö

FREEDOM OF ASSOCIATION

fines on their members, which right is logically derived from the
trade union agreement, which is itself based on the general principle
of freedom of agreement. I t recognises the right of the union to
represent its members. Measures taken vis*à-vis the employer in the
defence of the common interests of the workers (namely, blacklisting,
proscriptions of all kinds, etc.) are no longer considered as the act
of a third party unauthorised to intervene, but as the expression of
the will of the members, acting collectively t h r o u g h the medium of
the trade union. As regards the other repressive stipulations of
section 310, the explanatory statement proceeds as follows :
If from section 310 be removed the provisions which limit trade
union liberty (i.e. fines, restrictions and prohibitions), it will be seen
that the other delicts covered by the section are, with very few exceptions,
delicts under the ordinary law, for which provision is made in many of
the other sections of the Penal Code . . . . Should actions of this nature
t e punished in a special manner and with unusual severity, because they
are concerned with disputes arising out of the labour agreement ? It
would be difficult to justify such exceptional treatment by convincing
arguments. If the sections of the Penal Code referring to violence,
intimidation or wanton destruction be re-read, it may easily be seen that
the sanctions for which they provide are ' quite sufficient for the
maintenance of social order, even as regards delicts and misdemeanours
arising out of disputes between capital and labour '.
T o sum u p , the repeal of section 310 is the t r i u m p h of the principle of organisation over that of the individual freedom of labour
in its narrowest interpretation.
One other question remains to be settled, namely, how best to
guarantee trade union liberty against attacks from outside a n d , in
particular, from the other party to the labour agreement. T h i s was
t h e object of the other Act adopted on 24 May 1921.
A C T G U A R A N T E E I N G F R E E D O M O F A S S O C I A T I O N (24 M A Y 1921)

Consideration of the discussions which took place in the Chamber
on the Act guaranteeing freedom of association will show plainly
that the Deputies w h o voted for the Act were not all inspired by the
same reasons, and even that certain of them were relying on arguments in contradiction with those which had induced certain others
to vote for t h e Act. Some of the Deputies were clearly resigned,

1
Bill for the repeal of section 310 of the Penal Code, 'Explanatory
Statement, Revue du Travail, p. 619.
* For further details, cf. H. VEI.OE, Commentaire législatif de la M
garantissant la liberté d'association, Brussels, 1921.

BELGIUM

229

not without regret, to the repeal of section 310, and cherished a hope
that it might be possible to recreate it. in a new form. Others were
apprehensive that the most powerful trade unions of a specific political tendency might be encouraged to exert pressure on their rivals.
Others, were moved by the memory of the violation of trade union
liberties, which had been in some sort legalised under the system
of section 310, to desire some special protection of the freedom of
association. The result, of this disparity of reasons was a certain
lack of precision in the formulae adopted, which has been a source
of difficulty in the enforcement of the Act.
Undoubtedly the chief reason which determined the Government,
as early as 27 January 1920, to adopt a Bill on the subject was the
desire to give some special protection to the principle of occupational
freedom of association \ But the Bill aroused keen opposition in
all circles, not only among the trade unions, who were apprehensive
that the Act might exclude from trade union rights certain special
classes of workers, and in particular State employees 2 , but also
among the Liberal and Catholic parties, who wished legal protection
to be extended to all forms of association in all spheres of activity.
The Government noted this tendency, and substituted as an amendment to the original Bill a wider Bill, extending legal protection to
the right of association in general 3 . It was this latter Bill which
became the Act of 24 May 1921.
The Constitutional Principle Involved
Freedom of association thus defined is guaranteed by Article 20
of the Constitution. This fact has the following consequences :
In the first place, the Constitution affords a guarantee against
arbitrary action on the part of the Legislature. Thus, in the ascending scale of legislation, freedom of association, which is a funda-

' Of. text of the Bill, and explanatory statement : Documents parle
mentaires, Chamber, No. 66, 1919-1920 ; cf. also the Devèze report, which
incorporates this Bill in the private Bill on collective labour agreements,
ibid, No. 277, 1919-1920 ; cf. also amendments submitted by Mr. Woeste,
Mr. Segers, and Mr. Briffaut, Ibid., No. 382, 1919-1920.
' The Trade Union Congress of 4-5 July 1920 confirmed its previous
decisions concerning the freedom of association in all spheres, and recalled
the fact that the principle should be extended to all workers, employees,
and State employees, without restriction.
' Cf. Documents parlementaires, Chamber, No. 70, 1920-1921.

FREEDOM OF ASSOCIATION

»3°

mental right, cannot be infringed by an ordinary Act, and no amendment can be introduced into the text which guarantees it without
recourse to the complicated mechanism provided for a reform of the
Constitution.
This initial guarantee is completed by a guarantee against arbitrary action on the part of the Executive. The Belgian Constitution
safeguards freedom of association from any preventive measures on
the part of administrative authorities. It follows that if the courts
decide that Royal Decrees or provincial or municipal regulations
infringe freedom of association, they are bound to refuse to allow such
Decrees or Regulations to be enforced. It is true that repressive
measures against infringements of the law, either by groups of associations or by single associations, may be taken, but this in no way
affects the freedom of association as such. In other words, " no
association in Belgium can be dissolved or prohibited under penalty,
or made subject to any previous authorisation or to any other preventive measure " *.
Finally, the right of association, which is the right of the
individual citizen, applies to all social classes without exception, to
wage earners as to employers, to the liberal professions and to State
employees. It applies also to foreigners. Constitutional liberty in
Belgium has something of the wide international character of the
Declaration of the Rights of Man, which served as its model.
Further, Article 128 of the Constitution implicitly recognises the
right for foreigners :
Foreigners on Belgian territory enjoy the legal protection granted to
individuals and to property, subject to such exceptions as may be
established by law.
In practice, neither in the Constitution nor in any individual
Act, is there any exception such as is provided for in the last sentence
above. Thus, the Constitution provides the strongest possible guarantees for the right of occupational association against any possible
arbitrary action on the part of any authority.
Strong, however, as was the constitutional guarantee, the Government considered it inadequate. It is a truism that it is the duty of
the State merely to proclaim Constitutional liberty, with no further

Cf. O. O R B A N ; Le droit
P- 579-

cdnstitutiovnel

rie

la Belgique.

Vol. I t i ,

BELGIUM

J3I

obligation than that of itself respecting such liberty and of guaranteeing it. The State is bound not to infringe constitutional liberty,
but it is not bound to establish facilities for it. It is only in exceptional cases that the State safeguards with the sanction of penalties
certain fundamental rights against pressure from third parties. This
is what the State did in Belgium for the freedom of industry and
labour, by means of section 310, until the repeal of that section.
This is what it has done since 1921 for the freedom of association.
Mr. Carton de Wiart, who was Prime Minister at the time,
defined as follows the necessity for guaranteeing freedom of association against attacks from outside parties :
It is true that Article 20 of the Constitution proclaims that Belgians
are entitled to associate, and that this right cannot be the subject of any
preventive measure ; but it is one thing to proclaim the right and another
thing to declare that it will be henceforth protected and defended by the
law against any attacks to which it may be exposed. It is our desire that
this protection should be general, and should cover the freedom of association in all spheres. Our text is meant to cover not only occupational
or material, but also moral and political association '.
Thus, the chief of the substantial advantages of the Act of 24
May 1921, which guarantees, under penalty, the constitutional principle of the freedom of association are a guarantee against arbitrary
action on the part of the Legislature, a guarantee against arbitrary
action on the part of the Executive, a guarantee against pressure by
outside parties, and the extension of the benefits of the right of
association to all social classes and to foreigners.
It may be well, however, to indicate certain possible disadvantages in the particular case of the trade unions. All forms of constitutional liberty are ultimately based on individual liberty. Now, it
may seem difficult to reconcile in the same Act the protection of
trade union rights, which are essentially collective rights, and individual rights. How solve the contradiction between the principle of
organisation, which presupposes discipline and authority, and the
principle of the freedom of the individual, who is entitled to refuse
to enter an occupational group, or is even entitled to act. in a manner
hostile to such a group ? The question may also be asked whether
the right of occupational organisation, the development of which has
been mainly in the economic sphere, and the right, of association in
general, which is essentially political, or even moral, are not special

Annales parlementaires, Chamber, 24 Feb. 192T, p. 67.

232

FREEDOM OF ASSOCIATION

cases, each with its own requirements, and each demanding different
treatment.
T h e authors of the 1921 Act, who were fully conscious of these
difficulties, confined themselves to formulating certain rules, leaving
it to legal theory to deal with particular cases. But the new Act is
still too recent for the courts to have been able u p to the present to
deduce the principles of its enforcement. I t is therefore necessary
to refer mainly to official commentaries and to Parliamentary discussions, if the intentions of the authors of the Act are to be
understood.
Freedom

to Adhere

or Not to

Adhere

Section 1 of the Act provides as follows :
Freedom of association in all spheres is guaranteed. No person can
be compelled to form part of an association or not to form part of an
association.
T h u s the guarantee of the freedom of association, in the form
of an individual right to join or not to join an association, is the
predominant idea of the Act. On this provision the Government
makes the following comment :
Article 20 of the Constitution lays down the principle of freedom of
association. The proclamation of this freedom appeared in 1831 to be a
step forward of vital importance. At this time it was thought that the
freedom of association could be endangered only by arbitrary action on
the part of the Government. Thus, the Constitution was careful to specify
that freedom of association could not be subject to any preventive measure.
Experience has shown that freedom of association may be compromised
not only by action on the part of the Government, but may be seriously
hindered, or even paralysed, By ill-will on the part of individuals. We
take the view that if, as the result of pressure to which he is subjected,
an individual cannot make use, under normal conditions, of his right to
join or not to join an association, such individual liberty is seriously
impaired, and it at once becomes necessary that such acts of undue
pressure should be restricted by the law *.
While the Government, in its commentary, considered the question of a culpable attack on freedom of association in general, the
Minister of the Colonies dealt with the application of the principle
t o trade unions in particular, directly opposing the right of the
individual to the action of an organised group :
" If ", said he, " you set the individual up against the trade union
* Cf. note on Government amendments, Documents
Chamber, No. 70, 1920-1021.

parlementaires,

BELGIUM

233

with its collective power, the struggle is not equal. The .seriousness of
the danger, and all the moral objection-to the tyranny of powerful bodies
which crush a feeble individual, justify special measures of repression.
It may be added also that, in practice, the real danger is of possible abuses
in the trade union sphere. The protection of the principle of freedom of
association in the case of an individual's freedom to enter or not to enter
a given group, amounts in reality to the same thing as protection of the
individual \
Recognition of the Trade Union

Agreement

Section 2 of the Act enunciates in the following terms the principle
of the validity of the trade union agreement :
Whosoever beeomes a member of an association agrees, by the fact
of his adhesion, to submit to the regulations of the association, as also to
any decisions taken or penalties inflicted in virtue of such regulations.
He may at any time retire from the association by complying with
the necessary rules for the purpose. Any statutory provisions revoking
this right are considered null and void.
The view of the authors of the Act was that the association
should not only have its existence guaranteed, but should also dispose
of powers which would ensure its permanence, and allow it to subject
all its members to the necessary discipline. This was an important
reform. Under the system of section 310, the agreement of association was non-existent in the eyes of the law. Moreover, agreements
between parties which infringed the freedom of labour of third parties,
as also provisions restricting the freedom of labour even of the contracting parties, were prohibited under penalty. It was not until
section 310 was repealed that, the ground was cleared for reinforcing
the trade union agreement by judicial sanctions.
It may be asked, however, whether certain limits should not be
placed on the scope of trade union regulations, as otherwise the
member's freedom to retire becomes illusory. An amendment was
submitted to add to paragraph 1 of section 2 the phrase " to the
extent to which such regulations, decisions and sanctions are not
contrary to public order or to existing legislation ". But it was held
that the ordinary law was sufficient to prevent abuses. If a judge
were called upon to take cognisance of the nature or extent of the
alienation of individual liberty involved in a trade union agreement,
he might declare it null and void either under section 6 of the Civil
Code, as contrary to public order, or under section 17, which forbids

' Annales parlementaires, Senate, 18 May 1921.

234

PREEDOM OF ASSOCIATION

undertakings for life, and, as an extension, any undertaking of an
excessive duration which threatens the freedom of labour.
Moreover, the Act itself preserves the individual's right of at
any time denouncing his trade union agreement by resignation. On
the other hand, it does not specify in detail the conditions of such
resignation and, among other things, the obligations which, under
trade union regulations, are incurred by members who resign. An
amendment submitted to the Chambers defined these obligations,
and provided that such members could not be forced to pay more
than their contribution up to the date of their resignation. The
Government opposed this amendment, as an excessive restriction on
the right of association. The word " contribution ", said Mr. Carton
de Wiart, was too narrow a term. It was possible that, when a member
resigned, the association might be entitled to claim from him something more than the amount of his contribution up to the moment of
his resignation ; for example, the money premium covering him
against such and such a risk or the repayment of some advance or loan
made to the member '. There is thus here an ambiguity and, in the
event of disagreement, it is for the courts to decide the question of
fact, taking care always to compromise neither the existence of the
association nor the member's right to resign.
Suppression of Attacks on Freedom of Association by Illegal Pressure
Section 3 of the Act implements protection of the freedom of
association by repressing malicious attacks upon it :
Any persons who, in order to constrain another person to join or not
to join an association, employs any force, violence, or threats towards
him, or who cause him to fear that he will lose his employment, or expose
his person, his family, or his fortune to any hurt, will be punished by
imprisonment of from eight days to one month, and by a fine of from
50 to 500 francs, or by one or other of these penalties alone.
This text assimilates the protection of the freedom of association
to the protection of electoral liberty : a significant detail, since it
clearly shows the desire of the authors of the Act to put freedom
of association in the front rank of the fundamental liberties.
The analogy between the two cases has been an invaluable guide
for legal theory for the enforcement of the Act as regards freedom
of association. The Government commented as follows on section 3 :
Experience shows that the penalties provided for in section 198 of
' Annales parlementaires. Chamber, 24 Feb. 1921, p. 705.

*35

BBUÎITJM

the Electoral Code are adequate. Furthermore, the text is in complete
harmony with the other provisions concerning the freedom of association.
It provides for legal restriction when resort has been had to force, violence
or threats of such a nature as to cause fear of unjust hurt, or such as to
engender in an individual the fear of losing his employment, or such as
to endanger his person, his family, or his fortune. The penalties provided
for in this amendment are adopted without prejudice to the other provisions of the penal law which may be applicable '.
A m o n g the methods of attack which are thus prohibited figure
some which are already punished under section 310 of t h e P e n a l
Code. Some deputies were apprehensive that, in its interpretation
of the new section 3, legal theory might be too much imbued w i t h
the spirit of section 310. T o allay apprehensions in this connection,
Mr. Destrée, the Minister of Science and Art, stated t h a t the protection of the freedom of labour and the protection of t h e liberty of
association must be considered as being of two different kinds.
Moreover, t h e field of application of the delicts covered by section 3
— i.e. force, violence, threats — is still covered by the ordinary
law \
On t h e other hand, section 3 passes over in silence abusive
language, acts of intimidation, meetings near the factory or near
the workers' houses, which were delicts prohibited by section 310.
I t is for legal theory, if necessary, basing itself on the enforcement
of section 198 of the Electoral Code, to determine whether such acts
can be assimilated to one of the delicts specifically mentioned in
section 3.

Suppression

of Attacks on Freedom of Association
of the Labour
Contract

Means

As has been seen, section 3 deals with the legal protection of
all kinds of association. Section 4 is confined to the trade union
sphere, and forbids attacks on the freedom of association arising out
of abuse of the labour agreement. I t provides as follows :
The same penalties shall be inflicted on persons who, of malice
aforethought, with the object of prejudicing the freedom of association,
make the conclusion, the execution, or even, with the usual notice, the
continuation of an agreement for labour or service, conditional «pon one
or more persons joining or not joining a given association.

' " Force " (les voies de fait) is defined in section 563, paragraph 3,
of the Penal Code ; " violence " in section 483 of the Penal Code ; and
" threats " in sections 327 and 483 of the Penal Code.

236

FREEDOM OF ASSOCIATION

T h i s text gives rise to considerable difficulties of interpretation.
T h e preparatory work on t h e Bill and the discussions in Parliament
show that the object of the authors of the Act was, by this section,
to give a twofold protection to the freedom of association, both against
abuse of the labour a g r e e m e n t . on the part of the employer, and
against its abuse on the part of competing trade unions.
T h e explanatory statement attached to the Bill of 27 J a n u a r y
1920 * defined the first point as follows :
Even if it be proved that an employer has dismissed some of his
staff for the sole reason that the dismissed workers are affiliated to a
trade union, it would seem impossible, in the existing state of legislation,
to apply any sanction, civil or penal, to such an act. It is impossible
not to realise, however, that the tendency of such action is to destroy
normal conditions attendant on the conclusion of a labour agreement, by
keeping one of the parties in a state of isolation and inferiority. If
account be taken of the importance of the labour agreement in social life,
and of the unfairness of allowing one class of citizens to keep another
class to some extent at its mercy, in those relations which mostly affect
the material conditions of life of the individual and of the family, there
are abundant reasons for action, and the general interest demands the
suppression of such facilities a .
As regards the second point, the explanatory statement proceeds
as follows :
Abuse exists as soon as, in order to secure the monopoly of the market
in a certain product, or of the labour market, an individual or an association leaves the sphere of contractual liberty in order unlawfully to
enrol persons by main force or to prevent third parties adhering to a
competing or adverse group. There is also abuse when a workers' union,
which contains the majority of the staff of a given undertaking or of
workers in a given district, endeavours, under the cover of a collective
labour agreement, to exclude workers affiliated to another association or
not affiliated to any association. This is no longer a normal use of the
right of association and contractual liberty, but the negation of it, inasmuch as it affects third parties.
T h e principle t h u s asserted m u s t necessarily involve certain
modifications ; otherwise the new provisions, instead of merely
protecting against its economic opponents t h a t right of occupational
organisation which is recognised for all individuals of a given social
class, might, within the same class, where the occupational interests
of all the members are, or should be, t h e same, bring the individual
i n t o opposition to the very g r o u p which exists to defend such
interests.

* Documents
» Ibi lì.

parlementaires,

Chamber, No. 66, 1919-1930.

BELGIUM

lyj

The law (adds the explanatory statement) should authorise all contractual clauses, the object of which is to ensure those who conclude them
economic or occupational advantages of a specific character, such as wage
rates and basic wages, hours of work, safety measures, the necessary
guarantees in their relations with the management, etc. Thus, the labour
agreement should not necessarily be considered illicit because it provides
for the exclusion of certain workers. It must bé ascertained whether
such clauses are not justified by the legitimate desire to exclude from
the workshop undesirable individuals or persons whose actions tend to
lower the price of labour, or to prevent the loyal observance of agreements.
Here occupational interests are at stake. No one can be expected to put
u p with unfair competition.
T h u s , the explanatory statement attached to the first. Bill, which,
with the Government amendments, became the Act of 24 May 1921,
shows that pressure which tends to deprive an individual of work
is not necessarily punishable. I t comes under the law if its main
object is to compel or to prevent adhesion to a given group. I t does
not if its main object is to protect the g r o u p or the occupation against
h a r m . In order to leave no doubt of the legitimacy of pressure in
t h e latter case, section 4 of the original Bill said :
Trade unions may instruct their members to leave a given workshop,
giving the usual preliminary notice, as soon as one or more workers
of a given union, or one or more non-union workers, agree to work under
conditions other than those obtained by members of the trade union.
T h i s provision was not maintained in the Act of 24 May 1921,
because it was t h o u g h t that, in the case under consideration, the
intentional element in the infringement was lacking, and consequently
sections 3 and 4 could not in any case be applied.
T h e main characteristic of section 4 of the 1921 Act is that it
specifies malice aforethought as a constituent element in the delict 1.
T h e actual t e r m s of the Act are, " of malice aforethought, with the
object of prejudicing the freedom of association ". I t would seem,
therefore, t h a t these two conditions must be united, namely, the
malicious intention and the will to infringe the freedom .of association,
in order to arrive at a punishable delict. I t may, however, be noted
t h a t this was not the unanimous opinion of the Chamber. I n the view
of certain deputies, section 4 should have been enforced in all cases

1
In the case of certain infringements, it is not sufficient that they
should be committed consciously and voluntarily, which is malice in
general, but it is necessary that they should be the result of an evilly
disposed or fraudulent intention, so that the degree of culpability depends
upon the criminality of the motive which determined the agent. (See
HAUS : Droit pénal belge, pp. 250-253.)

'3«

FREEDOM OF ASSOCIATION

where freedom of association was prejudiced by the voluntary act
of one of the contracting parties, without any necessity to prove
malicious intent. If this latter interpretation were to be the accepted
one in the future, the distinction previously laid down by the explanatory statement between legitimate occupational action and illegal
pressure might disappear.
In particular, any collective agreement of a monopolist kind
would be an abuse, and therefore a delict, since, except in the unlikely,
if not impossible, case of all wage earners in an occupation being
members of the occupational association concluding the agreement,
such an agreement is a prejudice to the freedom of third parties not to
adhere to the association. The conclusion, therefore, of any
monopolist collective agreement would come automatically under the
operation of the Act. It may be asked whether this was the real
intention of the deputies who were in favour of making it unnecessary
to prove malice aforethought, or whether this was really the intention
of the authors of the Act.
The discussions on this fundamental question of the legality of
collective agreements of a monopolist nature, were not such as to
bring sufficient light to bear on the question to guide legal theory in
the matter. The various opinions may be briefly summarised :
Mr. Wauters, Minister of Industry, Labour and Supplies, spoke
as follows :
Will it be legal to conclude collective agreements of a monopolist
nature ? It should be observed, in the first place, that agreements of
this nature already exist in the book and allied trade, the diamond
industry, etc. In the first draft, which I signed with Mr. Delacroix, and
in the provisions agreed to previously by the representatives of the Catholic and Socialist associations, the question was definitely settled, and
there could be no question of going back on it. . . . Suppose an
employer, face to face with the Christian, independent or Socialist trade
union ; freely, and in the interests of both parties, the employer binds
himself to recruit his labour exclusively within a given association. There
is, in this connection, no malicious intention on the part of anyone to
infringe the liberty of any person whatsoever. Even if someone who
considers himself injured were to complain, he would have to prove
before a judge the malicious intention of the trade union leaders, and the
judge would have to decide whether there was any malicious intention
to harm him because there was some intention either to get him out of
a given association or to cause him to become a member of it. My own
view is that the conclusion of monopolist collective agreements under
the conditions which I specify should be legally recognised '.
To the objection of a deputy that it would be very difficult to
1

Annales parlementaires, Chamber, 23 Feb. 1921, pp. 676-677.

BELGIUM

2J9

prove that the delict had been committed of malice aforethought,
Mr. W a u t e r s explained that there m u s t be, iu the first instance, a
malicious intention on the part of the accused person, and, secondly,
that the act of such person was directed against one or more given
persons, with a view to limiting or to disputing their freedom to
join or not to join an association, according to their own free choice.
Mr. Destrée, the Minister of Science and Art, added t h e following to his colleague's a r g u m e n t s :
It is inadmissible that in the case of section 4, the courts should,
in order to free themselves from the necessity of proving malice aforethought, endeavour to apply merely the more general terms of section 3.
This would be entirely contrary to our intentions. Section 4 constitutes
for the trade unions a protection against an extensive interpretation of
section 3. It is impossible to deprive the trade unions of this protection,
or to diminish its scope. In the general case considered under section 3,
the action in question is punishable onh- if its object be to prejudice the
freedom of association. The intention may in most cases be deduced from
the actual fact of prejudice, but it must be carefully considered whether
the prejudice in question is the result of malice aforethought '.
Finally, Mr. Carton de Wiart, the Prime Minister, confirmed
the view of his Socialist colleagues as follows :
Is it neccessary in all cases, even if there is no malicious intention
among the leaders of the contracting parties, to condemn anyone who
makes the conclusion of a labour agreement or a contract of service
conditional on one or more persons being affiliated to a given association?
This is the problem before us. My answer is, it is impossible if injustice
is not to be committed, if economic and social progress is not to be
hindered. A distinction must therefore be made. We must go behind the
act, and look for the motive 3.
F r o m these Ministerial statements the following principle m a y
clearly be deduced : T h e intention to prejudice the freedom of association does not ipso facto imply the malicious intention required by
section 4. I t would therefore seem that the conclusion of t h e discussions is to some e x t e n t contrary to the arguments put forward in the
explanatory statement, a n d to the Ministerial declarations. A deputy
of the R i g h t urged the suppression of the word " m é c h a m m e n t " (of
malice aforethought), stating that the insertion of the w o r d in the
text, and of the words, " with the object of prejudicing the freedom
of association ", was a tautology. T h i s view was, to some e x t e n t ,
adopted in t h e new draft of section 4, where the word " and " is

? Ibid., 24 Feb. 1921, p. 708.
1
Annales parlementaires, Chamber, Feb. 1921, p. 719.

¿40

FREEDOM OF ASSOCIATION

replaced by a comma. The two conditions required by section 4,
namely, malice aforethought and prejudice to the freedom of association, were not actually confused, but were so far assimilated that
confusion was always possible.
{since agreement could not be reached on the meaning of the
term " méchamment " in section 4, the two parties had recourse to
legal theory in order to discover whether, in each particular case,
there was malice aforethought when prejudice to the freedom of
association was caused. But in view of the extreme difficulty, in most
cases, of proving the malicious intention of the parties concerned,
legal theory would seem to have sanctioned a wide interpretation of
section 4. The preliminary clauses of the various judgments resolve
the two conditions into a single condition, and state that the word
" malicious " is no more than a synonym of the phrase " with the
object of prejudicing the freedom of association ".
In its judgment of 28 May 1923, the Court of Cassation decided
that any person who makes the continuation of a labour agreement
dependent on a person or persons joining or not joining a given
association, is acting maliciously where the object is to prejudice
the freedom of association of that person l .
The Supreme Court thus takes the view, in the case submitted to
it, that the malice aforethought arose out of the actual fact of
prejudice caused to the freedom of association. If this interpretation
is to become the one and only interpretation, it is clear that section 4
of the Act of 24 May 1921 would be a serious obstacle to the collective
regulation of labour relations. It must be concluded that an individual's freedom of association, even in the negative sense, may be an
absolute barrier to all efforts for the collective organisation of labour.
But this was not the intention of the authors of the Act, as the
parliamentary discussions show, nor was it the intention of the courts,
as is shown by the reservation contained in the following explanatory
statement of the Brussels Court on the same subject :
When a collective labour agreement is in no way prejudiced by the
1
Court of Cassation, 28 May 1923, Pandectes périodiques, No. 3. See
also Criminal Court of Brussels, 26 May 1922, ibid., No. 168 ; and Criminal Court of Brussels, 17 Feb. 1923 ; ibid., 1923, No. 16.

BELGIUM

24I

fact of a member of a trade union resigning, it is impossible to appeal to
occupational interests to justify any pressure put upon him *.
It would appear to follow that if occupational interests (in the
case in point, the strict execution of the collective agreement concluded) bulked largest in the intention of those who exercised the
pressure, such pressure would not fall within the scope of the Act.
It must be admitted that the real difficulty of the interpretation
of section 4 is that both the authors of the Acts and the courts were
above all concerned to safeguard the freedom of conscience of the
wage earner against pressure arising out of the labour agreement.
Now, it would appear very difficult to determine in each special case,
and in particular in the case where exclusive action is taken against
a member of a rival organisation, the real political or occupational
motive of the trade union the action of which is impugned.. It would
seem impossible to find any definite solution for this question until
such time as agreement between Socialist and Christian trade unions
in occupational matters is a fait accompli.
An analysis of legal theory will allow an exact estimate to be
made of the meaning of that penal responsibility which falls upon trade
union leaders who in any way cause prejudice to the right of association. In virtue of section 2 of the Act of 24 May 1921, which recognises the validity of the trade union agreement, it might be asked
whether trade union leaders who confine themselves to carrying out
the mandate duly entrusted to them by their organisation nevertheless
incur a personal responsibility in respect of acts of pressure of which
they may be guilty. Legal theory replies to this question in the
affirmative :
Any person accepting the decision of a trade union is responsible for
an}' delict under penal law, provided that he has not acted under2 the
conditions of constraint provided for in section 71 of.the Penal Code .
What then, it may be asked, is the civil responsibility of the
trade unions under the new Act? Under the system of section 310
of the Penal Code, any prejudice to the freedom of labour caused, by
any one of the means enumerated in the Section in question necessarily
implied civil responsibility for any damage caused. Nowadays a
similar prejudice involves civil responsibility only if it is caused
1

Brussels Court, 17 Feb. 1923.
• Brussels Court, 17 Feb. 1923, loc. cit. Cf. also Criminal Court of
Brussels, 26 May 1922.

Freedom of Association

242

FREEDOM OF ASSOCIATION

with the object of paralysing the freedom of association of whoever
may be its object or victim.
A trade union which issues orders calculated to prejudice the
freedom of association of third parties, commits an illicit act, which
gives rise to compensation according to the amount of damage caused.
In accordance with the principles of ordinary law, the responsibility
for the damage must be divided between the trade union which gave
the orders (always provided that trade union is. endowed with
civil personality) and the persons who carried out the orders.
An act of exclusion pronounced against a third party belonging
to a; hostile organisation may, in addition to the members of such
organisation, affect the trade union itself, which will thus be hindered
in its freedom of recruitment. The trade union in question may, if it
possesses a civil personality, legally claim an injunction on this illicit
hindrance, together with damages.
Finally, any employer who yields to threats on the part of his
workers, and refuses to engage or dismiss non-union workers, is
civilly responsible if he is yielding without adequate resistance, or
if any fault can be proved upon his part. If, on the contrary, the
pressure exercised is equivalent to force majeure, no blame, and
consequently no responsibility, can be urged against the employer.
§ 2. — Possible Lines of Action of Trade Unions in the
Economic and Social Sphere
Since 24 May 1921, Belgian trade unionism has been freed from
all legal encumbrances by the repeal of section 310, and is protected
by the new Act against abusive attacks from third parties. . It is
therefore well qualified to undertake its main task of securing proper
¡economic and occupational conditions.
It is not the intention to consider in these pages the multifarious
developments of this theory in the economic sphere. It will be
enough to study the regulation of occupational life and of the methods
at the disposal of trade unionism for the determination of conditions
of labour by collective agreements, for the settlement of collective
disputes by amicable arrangement, and for the organisation of the
control of undertakings.
T H E T R A D E UNIONS AND COLLECTIVE AGREEMENTS

There is, as yet, no legal regulation of collective agreements in
Belgium, and legal theory has not yet dealt with the matter. In

BELGIUM

practice, however, such agreements have continued to increase, both
in numbers and in importance. In the great majority of undertakings
nowadays, the wage earners are working under collective agreements.
It has not been for want of trying that legislation has as yet not
dealt with this new contractual method. Various Bills on the subject
have been submitted to Parliament, which it is worth while to consider as instances of the development of trade union law, since the
progress of legal theory which is shown in them (even if sometimes it
did not succeed in finding expression in legislation) is a faithful
reflection of the development of collective contractual agreements.
As a point of departure, it may be noted that, during the discussion on the Act of io March 1900 on the labour agreement, the
authors of the Act denied the right of recognised trade unions to
conclude or to denounce collective agreements 1.
On 6 May 1908, Mr. Janson submitted a private Bill to the
Chamber of Deputies 2 . The object of the Bill was to organise collective labour associations, either simple or financed from outside. Such
associations could, through their legal representatives, conclude
collective labour agreements on the basis either of a flat rate for all
their members or of different wages for the various classes of their
members. The author of the Act took the view that workers who
were united in a society for the purpose of concluding collective
agreements might successfully secure capital for carrying on undertakings. .A twofold guarantee was provided ; if a collective labour
association was formed, the labour agreement made all the members,
and also the society, liable up to the limit of the guarantee fund
constituted by the monthly contributions of the workers ; if the
society possessed a cash capital, such capital was to be used for
meeting the obligations of the society whenever two at least out of
three officers of the society guaranteed the transaction with their
signature.
Briefly put, the object of the Bill was, while not going outside
the traditional regulations governing companies, to oppose to the
capitalist undertaking the labour co-operative society. This was an
attractive idea at a time when the collective agreement covered only
the workers in a given undertaking. But it is an idea which became
1

See p . 213.

Cf., Pandectes beiges : " Collective Labour Agreements ", pp. 7
et seq.

FREEDOM OF ASSOCIATION

244

difficult to enforce the moment that all the wage earners in a given
profession or district were included in the collective regulation of
conditions.
The preliminary draft concerning collective labour agreements
adopted on 27 June 1911 1 by the Belgian Superior Labour Council,
is based on an extension of the rights and privileges granted to legally
recognised persons. It defines collective agreements (section 1),
regulates the conditions under which trade union representatives
receive their mandate (section 6), defines its own juridical scope
(section 4), and determines the sphere of its application, both individual and occupational (section 2). It also grants the right of appearing in the civil courts to recognised corporate bodies, whether on
their own behalf or, if trade unions, on behalf of their members,
either as plaintiffs or as defendants (section 14). It leaves the contracting parties, however, the utmost possible liberty as regards individual or collective obligations, or as regards the responsibility
arising out of such obligations (section 11).
The object of the Bill was to grant the occupational unions and
other corporate bodies the right of concluding collective agreements,
which right had been refused to them by the authors of the 1900 Act.
Nevertheless, the grant to trade unions of the capacity to conclude
collective agreements was made conditional on their obtaining legal
personality, which implied a certain measure of Government control
over their internal affairs. A condition of this sort was calculated
to exclude from the benefits of the Act the great majority of the
workers' unions, which, for reasons given above, were not overanxious to secure legal recognition.
Mr. Devèze's private Bill of 24 February 1920 departed from all
previous legal tradition. Its object was to give the fullest possible
iegal recognition to what the author of the Bill himself called " the
fact of unionism " 2 . According to Mr. Devèze's Bill, collective
agreements concluded by occupational associations, which were for
this purpose endowed with a legal personality (limited to the right
of concluding or carrying out a contract — this for the purpose of
avoiding administrative supervision) were enforced on a compulsory
basis in individual agreements concluded between employers and wage

1
2

Cf. Pandectes beiges : " Collective Agreements ", p. 11.
Cf. ibid. : " Collective Labour Agreements ", p. 13.

BELGIUM

earners after the conclusion of the collective agreements. The only
sanction provided for was of a moral nature, consisting in the publication of the judgment pronounced on the question.
The daring nature of this system is apparent chiefly in Part IV
of Mr. Devèze's Bill. " Certain measures ", says section 8 of the
Bill, " will have the force of custom for the particular occupation
and in the particular district in which they are applied ". This was
no less than the legal ratification of the occupational predominance
of the trade unions over outside parties. Nevertheless, this absolute
sovereignty of the collective agreement was subject to the following
conditions, namely, that only the occupational associations enjoying
the restricted legal personality provided for in the Act itself should
be contracting parties under it ; that before any strike or lockout,
the agreement should provide for compulsory recourse to conciliation
before a special court set up by agreement between the parties ; that
the agreement should provide for a deposit, proportionate to the
duration of the agreement, as surety for the execution of the obligations undertaken ; that the duration of the agreement should not
exceed two years ; and, finally, that a copy of the agreement should
be deposited in the registry of the Conseil des Prud'hommes (section 9).
Neither of the two above Bills resulted in legislation. No doubt,
such a system involves disadvantages, i.e. uncertainty as to the
theoretical legal validity of the contractual institutions, deprivation
for the trade unions of the valuable weapon involved in the right
to appeal to the Courts for execution of agreements. But these
disadvantages seem, in the view of the persons concerned, less than
those arising from an excessive legal regulation indifferent to all
future possibilities of development such as are involved in a contractual system which is still in its first infancy.
In any case, the absence of any sanction for collective agreements
increases the importance of the second problem, which is the amicable
solution of labour disputes.
T H E T R A D E UNIONS AND CONCILIATION AND ARBITRATION

Legal machinery for dealing with labour questions is represented
in Belgium by two organisations, namely, the councils of industry
and labour, and the Conseils des Prud'hommes. The latter, however,
are permanent courts for the settlement of individual labour disputes
between employers and workers.

24.6

FREEDOM OF ASSOCIATION

They therefore fall outside the scope of a study of trade unions.
The former, on the contrary, are relevant to the subject under
discussion.
The object of the councils of industry and labour, which were
created by the Act of 16 August 1887 \ is to deliberate on the joint
interests of the employers and the workers, and to prevent and, if
necessary, to settle any disputes which may arise between them. At
the same time, they constitute a form of district representation of
labour. Each council corresponds to a regional division, divided
into a certain number of sections, each of which corresponds to a
given industry. Each section is constituted on the joint system,
manufacturers and workers being elected in equal numbers by the
same electoral body which chooses the Conseils des Prud'hommes.
In the event of dispute, the section is convened by the Government,
on the request of the employers or of the wage earners concerned,
to endeavour to find means of conciliation. If no agreement can be
reached, the discussions are summarised in an official compte-rendu,
and published. The section acts solely as a conciliation committee,
and in no case plays the part of an arbitrator or a judge.
Contrary to the expectation of their authors, the councils (have
played an inconsiderable part in the settlement of industrial disputes
or in the preparation of labour legislation. From the start neither
employers nor wage earners have taken an interest in them, probably
because there was no solid support for them among the occupational
organisations on either side.
After the war, the problem of conciliation and arbitration entered
on a new phase. The difficulties of adapting the national economy
to post-war conditions allowed the Government to show more energy
. in the settlement of collective disputes. It was the intention of the
Government to associate the occupational groups in the work of
reconstruction, which required a united effort, and which might
have been compromised by the numerous strikes which broke out in
the spring of 1919 in the coal mines and in the metalworking industry.
In agreement with the occupational organisations, the Government
provided for the creation of two kinds of organisation, namely, the
conciliation and arbitration committees, the work of which was bound
up with the system of unemployment insurance and with the creation
of the National Emergency Fund, and the joint district and national

Cf. Code du Travail, Vol. II, p. 636.

BELGIUM

»47

committees, which were set u p by t h e Government, b u t based directly
upon agreements between t h e employers' a n d workers' federations.
T h e Ministerial Circular of 30 A u g u s t 1921 defines as follows
the internal organisation of t h e conciliation committees 1 :
In the event of a dispute between workers and employers, the Labour
Chamber in whose jurisdiction the undertaking in question is situated,
should be informed by the workers of the dispute. The Labour Chamber
acknowledges receipt of such information, and the Supervisory Committee
immediately proffers conciliation to the parties concerned, demanding
a reply within three days. If this intervention is rejected, or if the
attempt at conciliation fails, the Supervisory Committee must propose
arbitration to the parties concerned and, for this purpose, must tender the
good offices of the district arbitration committee. Nevertheless, it leaves
the parties concerned the fullest freedom in the choice of their arbitrators
If the employers refuse arbitration, and if the workers accept, the
workers are granted a maintenance allowance on condition that, before
striking, they adhere to the offer of conciliation and wait at least one
week for the employer's decision on the proposal for conciliation and
arbitration. . . .
If the workers refuse to refer the question to arbitration when the
proposal is accepted by the employers, and begin a strike, maintenance
allowance is not granted. The same is t h e case when both parties refuse
arbitration.
T h u s , t h e obligation to resort to arbitration w a s sanctioned b y
a clause which presupposed t h e possibility jof maintenance allowances.
A s a matter of fact, the maintenance allowance w a s purely sporadic
and provisional, and t h e reorganisation or. t h e abolition of maintenance
allowances was to render t h e whole system null and void. Consequently, the district arbitration committees were abolished by Royal
Decree of iS F e b r u a r y 1924 2 .
But the increase in unemployment caused by t h e recrudescence
of strikes and lockouts in recent years tended tp impose excessive
b u r d e n s on t h e National E m e r g e n c y F u n d , instituted by Royal Decree
of 31 December 1920, the object of which w a s to centralise and
distribute the sums collected for t h e relief, in the event of industrial
crises, of unemployed persons affiliated to t h e recognised funds for
the relief of involuntary u n e m p l o y m e n t s .
A s t h e result of an enquiry concerning t h e effect of labour disp u t e s on t h e National Emergency F u n d , t h e Government, on 12 May
1926, issued a Royal Decree re-establishing on a slightly different basis
conciliation and arbitration organisation in all districts where t h e
desirability of setting u p such committees was recognised. T h e new
1
Cf. ibid., Vol. II, p. 359.
' Cf. ibid., Vol. II, p. 665.
» Ibid., Vol. II, p. 349.

248

FREEDOM OF ASSOCIATION

Decree created conciliation and arbitration committees composed of an
equal number of representatives of employers and workers appointed
by the Minister under the chairmanship of an independent person.
T h e Decree in question follows the Decree referred to above in
leaving the parties concerned free in their choice to have or not to
have recourse to the procedure instituted. Indirectly, however, b u t
none the less effectively, it attempts to influence the decisions of t h e
parties by making the distribution of unemployment relief conditional
on t h e submission of disputes to arbitration. I t m a y be well to quote
the provisions of the Decree concerning sanctions, which are of
particular importance :
If an employer causes a strike by putting into force, before the official
notification by the competent committee of the failure of the attempt
at conciliation or of the proposal for arbitration, new conditions of labour
or wages which are rejected by his workers ; if he declares a lockout
without previously having had recourse to the procedure of conciliation
and arbitration ; if he refuses to comply with the summons of the
committee and to carry out the agreement arrived at or the arbitral award;
if the committee is of the opinion that by his attitude he has rendered
conciliation impossible, those of his workers who are members of an
approved unemployment fund will be assimilated to involuntary unemployed and may, as such, from the first day of the strike, benefit by
the unemployment allowances of their fund or by the allowances of the
National Emergency Fund, in accordance with the Royal Orders dealing
with the organisation of the system of unemployment insurance.
Nevertheless, strikes and lockouts declared under one of the conditions
referred to above cannot give rise to the extension, in favour of the
workers, of allowances tinder the National Emergency Fund, provided
for in section 26 of the Consolidated Royal Orders on unemployment
insurance.
The unemployment fund allowances and the allowances of the
National Emergency Fund may not be added to those of the strike fund
except to the extent to which this is necessary in order to compensate
for the refusal of municipal or inter-municipal unemployment funds to
grant the supplementary increments to strikers who are beneficiaries
under the first paragraph of the present section.
If the workers cause a lockout by modifying conditions of labour
before the official notification by the competent committee of the failure
of the attempt at conciliation or of the proposal for arbitration ; if they
declare a strike before the notification by the competent committee of
the failure of the attempt at conciliation or of the proposal for arbitration.;
if they refuse to attend the meetings of the committee or to carry out the
agreement concluded by conciliation or the arbitral award ; if the committee is of the opinion that by their attitude they have rendered conciliation impossible, the organisation which they represent shall be excluded
for one year, as from the first day of the strike, from the benefits of
section 15, unless they prove that the strike was occasioned without their
agreement or without their support.
In the case of a central federation, this measure applies' only to the
members of the local sections concerned in the dispute 5.
1
Cf. Moniteur belge, 12 May 1926 ; cf. also INTERNATIONAL LABOUR
OFFICE : Industrial and Labour Information, Vol. XIX, pp. 12-18.

BELGIUM

249

The creation of joint committees, on which all the interests
concerned are represented by industrial groups, is still more directly
bound up with the trade union movement. It is based on the reciprocal recognition of workers' and employers' organisations as qualified representatives of the occupational interests of all wage earners
and all employers. These committees were created by Royal or
Ministerial Decrees and put under the chairmanship of a Government
representative. The chief questions submitted to them were those
concerning wages and the organisation of labour. Later they were
consulted on the question of the exemptions to be authorised to the
system set up by the Act of 14 June 1921 concerning the eight-hour
day and the forty-eight hour week.
Generally speaking, it is left to the initiative of the parties
concerned to set up the committees. The Government intervenes only
on the request of the employers' or workers' organisations. It
endeavours to obtain the consent of the employers' associations or of
the trade unions, and it proceeds to distribute the seats, taking account
of the interests of the various districts in the country and of the
numerical strength of the groups concerned. The joint committees
are district or national, according as the industries represented are
grouped in a given district or divided throughout the country.
When the various seats are distributed, the candidates are chosen
by the Minister from a double list supplied by each group represented
on the joint committee.
The Decree setting up the committee also appoints the Government delegate, who presides over the committee in an advisory
capacity, and also the secretary. It further lays down the duties
of the new organisation.
The meetings of the joint committees are generally fixed by
agreement with the workers' and employers' delegations. The committees are at once committees of enquiry and organs of conciliation ;
they are not arbitration councils. On many occasions, however, the
committees have been appealed to in certain disputes to constitute a
delegation entrusted with the work of issuing a real arbitral award.
In this case decisions must be taken unanimously.
Nowadays, joint committees are in operation in most Belgian
industries *.
1
See the list of joint committees ofricially created by Ministerial
Decrees : Code du Travail^ Vol. II, p. 659.

FREEDOM OF ASSOCIATION

25°
In order
2i February
Industry and
organisation
committees \

to co-ordinate the whole movement, a Royal Decree of
1924 created a central department at the Ministry of
Labour to deal with questions concerning the creation,
and operation of the joint national and district

T H E T R A D E UNIONS AND T H E CONTROL OF INDUSTRY

The practical experience of collective agreements and the opera' tion of the joint committees react to a certain extent upon the internal
organisation of industrial undertakings and automatically engender
in various ways a kind of workers' control over the application of
working conditions.
Since the war, in particular, the use of the collective agreement
has spread to an ever-increasing number of undertakings, and, at
the same time, its scope has been enlarged. It is no longer confined,
as at the outset, to determining hours of work, providing for a minimum wage, or defining conditions of health and safety. It is extended
to deal also with questions of apprenticeship, internal discipline, the
improvement of methods of labour and the proper operation of the
factory in general. Now the very importance of this independent
regulation of the question, which, more directly and even more
effectively than labour legislation properly so-called, guarantees the
protection of occupational interests, involves trade union control of
its enforcement. Such control is by now à fait accompli in many
undertakings by means of shop stewards (délégués d'ateliers), termed
" sectional representatives " (sectionnaires). These delegates, it is
important to note, are not always the representatives of labour in a
given undertaking, but more often of the trade union as a whole,
which thus affirms the predominance of the collective interests of
the occupation over the individualism of the workshop.
Moreover, the creation of the joint committees has given rise to
various forms of control over the industries for which they are in
operation. On the workers' side it is considered that negotiations
between the two parties (whether for the establishment of collective
agreements or for the settlement of disputes) have no chance of
success unless the worker's representatives and the representatives of
' /bidT," Vol. II, p. 655.

BELGIUM

251

the employers have identical sources of information on which to
base their points of view. During the trade union " week " at
Morlanwelz, which was held for the special purpose of discussing the
question of workers' control, the trade union representatives of the
various branches of industry purported to quote what they regarded
as typical cases of this spontaneous organisation of trade union
control arising out of the application of collective agreements drawn
up by joint committees \
These various forms of workers' control, to such extent as they
actually exist, are due solely to the initiative of the trade unions
and are developing without any legal interference. None the less,
the trade unions are perfectly aware that a purely contractual institution of this nature is precarious. Sooner or later it may feel the
effects of an economic or trade union crisis, if the trade unions do not
succeed in basing it definitively on an Act.
Workers' control appears among the claims in the " Economic
Organisation " programme of the Christian trade unions, as in that of
the Trade Union Committee. But while the efforts of the Christian
organisations are directed rather through profit-sharing to joint
ownership and joint administration of undertakings by means of the
system of trade union shareholding 2 , the Trade Union Committee
has anticipated the future legal regulation of the question by drawing
up a preliminary draft of workers' control based on the organisation
of local, district and national councils working in close relation with
the trade unions. Their functions are to be limited to the supervision of collective agreements and to analogous questions, such as
engagement and dismissal, internal discipline, shop regulations, etc.,
to the proper technical organisation of the workshop and to the right
of inspecting the administration of the undertakings, with access to
the sources of the employers' information. They do not therefore
extend to joint administration or joint direction. Up to the present,
nothing has come of this scheme.
1
For further details, see Compte rendu de la Semaine -syndicale deMorlanwelz du 4 au iq septembre iç2i ; Max GOTTSCHALK : "The
Problem of Workers' Control in Belgium ", International Labour Review,
Vol. XI, No 3, p. 329 ; Louis de ROUCKÈRE : " Le contrôle ouvrier ",
Cahiers de la Commission syndicale de Belgique, No. 5, Jan. 1924 ; and
Compte rendu du congrès extraordinaire de la commission syndicale de
Belgique consacré au contrôle ouvrier, 17 Feb. 1924.
3
Cf. M. T U R M A S : " Trade Union Investment Funds in Belgium ",
Internationa! Labour Review Vol. XII, No. 3, p. 372.

FREEDOM OF ASSOCIATION

253

The Government, however, endeavoured to apply the system of
workers' control to the administration of public undertakings. At the
end of 1925 Mr. Anseele, Minister of Railways, set up a joint committee of enquiry into the productivity of labour and the output of the
railways, which has the right of inspecting the administration \
This system was amplified in the Act adopted recently by the Chamber of Deputies, transferring the property and the operation of the
railways to a national society of Belgian railways. The organs of
the company in question are to be the general meeting of the shareholders and the Administrative Council. The latter, which is
composed of 21 members, includes 3 members appointed by the staff.
Further, the Act establishes the main principles 011 which the staff
regulations will be drawn up. For this purpose a joint national
committee, composed of 20 members under the chairmanship of the
Minister of Railways, has been created to draw up the statutes. It
may also express opinions on all questions concerning the general
working of the railways.
To sum up, it may be said that, despite the absence of legislative
regulation of the question, workers' control already exists to some
extent and in some forms in both public and private undertakings.
COLLABORATION OF THE T R A D E UNIONS W I T H T H E

GOVERNMENT

Recent trade union legislation would suffice to show the Government's change of attitude with regard to occupational associations.
But the Government no longer confines itself to securing and guaranteeing for such associations full and entire freedom of action. It is
proposing to associate them directly in the national administration.
Although a system of this nature is not yet officially worked out in
all its details, it has become in practice a permanent practical feature
of the Government's policy.
During the preparation of new Acts, whether economic or social,
whether concerned with the fiscal system or with customs tariffs,
with the conclusion of treaties of commerce or labour treaties, the
Government is continually appealing to the qualified councils of the
occupational organisations.
The most important means of direct action which they possess
in this connection is their participation in the meetings of the
1

Cf. hid. and. Lab. Information,

Vol. X.VI, p p . 112-113.

BELGIUM

¿53

Superior Labour Council, which plays the predominant part in preparing Bills and Decrees on the subject of social legislation. Created
by Royal Decree of 7 April 1892, and amended by the Decree of
16 January 1920, the Superior Labour Council is the most important
body representative of occupational interests. It is at the moment
composed of 60 members chosen by the King, of whom 20 represent
the heads of undertakings and 20 the workers and employees, the 20
others being chosen from among the various learned associations.
The workers' and employers' members are recruited from among the
heads of the workers' and employers' associations in proportion to
the numerical strength of such associations.
Moreover, there is an ever-increasing tendency to entrust the
operation of social institutions more or less entirely to the trade
unions. Thus, the Royal Decree of 19 February 1924, governing the
organisation of public employment exchanges 1, sets up a joint supervisory committee at each official labour exchange composed, on a
fifty per cent, basis, of representatives of the employers' associations
and of the workers' and employees' unions. This committee may fix
for each occupation, in agreement with the employers' and workers'
organisations concerned, the rate of wages below which the labour
exchange will no longer help in placing the workers (sections 5-7).
When the trade unions subsidise the exchanges, their representatives
may also be members of the Administrative Council, which presides
over the working of the exchanges (section 3).
Similarly, the Royal Decree of 31 December 1920, setting up the
National Emergency Fund, creates an administrative council for
the Fund, including an equal number of representatives of the heads
of industry and of the workers' organisations (section 3).
It may be added that, in the matter of social insurance, the
delegates of the mutual benefit societies, the close relations of which
with the trade unions are well-known, form part of the recently
instituted old-age pensions councils.
Finally, Belgian legislation has granted the workers' organisations
a method of direct control over the enforcement of social Acts, either
by recruiting inspectors directly from among the workers concerned
(e.g. mining inspectors) or by attaching workers as auxiliary inspectors to the factory inspectors themselves.
1

Code du Travail, Vol. II, p. 344.

FREEDOM OF ASSOCIATION

254

§ 3. — Legal Limits of Freedom of Association
L I M I T S OF PENAL L A W

The field of application of repressive measures under penal law
as regards occupational association has become increasingly narrower.
Since the abolition of the delict of coalition in 1866 strikes and lockouts of all kinds, economic, sympathetic or political, ceased to come
under the law. Since the repeal of section 310 of the Penal Code the
various forms of trade union warfare became legal, such as boycotting, blacklisting, picketing, meeting near the factories, acts of
intimidation, and all other acts not provided for in ordinary law which
were prejudicial to the freedom of labour of outside parties. On the
other hand, the Act of 24 May 1921 provided a special system of
protection against all malicious attacks on freedom of association.
To sum up, occupational associations can to-day exist and act
as they please, fettered only by the limits imposed by the ordinary
law. It may even be said that these limits have been enlarged in their
favour, in particular, at the expense of the employers' freedom to
engage (section 3 of the Act of 24 May 1921).
One question, however, still remains unsettled, that of the right
of civil servants l to strike. Under Article 20 of the Constitution,
and under the Act of 24 May 1921, the right of occupational association is guaranteed to all classes of society, including civil servants.
The question must then be asked whether this right of occupational
association entails the right to strike.
The question would appear to have been settled as regards
employees in the postal, telegraph and telephone service, railwaymen
and seamen, by the adoption in July 1925 by the Minister of Railways
of the following measures, the purport of which is to annul the
penal sanctions inflicted on certain employees as a result of the Railway Strike of 1923 :
(1) Immediate and general reinstatement of all trade unionists
dismissed on the occasion of the 1923 strike.
(2) Official recognition of trade unions by the Department
concerned, in accordance with the Act of 24 May 1921, which
guarantees general freedom of association ; repeal of all
Decrees and Circulars limiting the occupations in which
trade unions may be formed and the activities in which they
may engage ;
1

Fonctionnaires.

BELGIUM

255

(3) Special facilities for trade union officials, in order to enable
trade unions to operate effectively. Among other things,
militant trade unionists will be allowed -to take long leave.
Certain trade union representatives will be given official papers and free passes to allow them to visit their official chiefs
for the purpose of discussing the demands and complaints
of the staff. They will also be given leave without pay and
other facilities to enable them to attend the meetings of
technical committees of the unions '.
As regards higher officials, sections 233-236 of the Penal Code,
which deal in some detail with the case of insubordination on the
part of civil servants, may be applied by extension to the strike
properly so called. Section 233 punishes guilty parties with from
one to six months' imprisonment when measures contrary to (he laws
or to Royal Decrees have been concerted, either by deputation or by
correspondence, at a meeting either of individuals or of a body of
persons who are in any sense repositories of some portion of the public
authority. Section 234 inflicts a penalty of from six months' to five
years' imprisonment if by one of the means specified in the preceding
section measures have been concerted against the enforcement of a
law or a Royal Decree. The guilty parties may also be condemned
to lose the rights referred to in paragraphs 1-3 of section 31.
If such concerted action has taken place between civil servants
or soldiers or their chiefs, the authors of the attempt are punishable
by detention for from 10 to 15 years and others by detention for from
5 to 10 years. Section 236 inflicts a penalty of from one month's to
two years' imprisonment, and a fine of from 100 to 500 francs, on
State employees who have concerted together to resign with a view
to prevent or to defer either the administration of justice or the
accomplishment of some legal service. They may in addition be
prohibited from filling any public function, office or employment.
L I M I T S OF ADMINISTRATIVE L A W

The right to meet, which is a corollary of the freedom of association, was forbidden by the former section 298 of the Penal Code, but
has been since 1831 incorporated in Article 19 of the Belgian Constitution, which provides as follows :
Belgians are entitled to meet together peaceably, without arms, and
1

Cf. hid. and Lab. Information, Vol. XVI, p. 212.

256

FREEDOM OF ASSOCIATION

in conformity with any Acts which may regulate the exercise of this
right. They are not _ compelled to. obtain previous authority for the
meeting. This provision does not apply to meetings in the open air,
which are entirely subject to police regulations.
This text shows that it was the intention of the Constitution to
make a clear distinction between meetings in the open air and meetings under cover. Ordinary public meetings are not subject to
any preventive measures and the courts are consequently bound to
refuse to enforce any Decrees or Regulations the object of which is
to prohibit or prevent them. On the other hand, meetings in the
open air come under the preventive system contained either in sections 128, 134, 272, 290, and 561 (paragraph 10) of the Penal Code,
or in provincial and municipal regulations, or under the Act of 14
December 1789, section 50, and under Part II of the Act of 2 August
1790.
It has been held to be the duty of municipal councils to issue
police regulations forbidding gatherings of more than five persons,
as liable to lead to trouble and disorder l , and that it is among the
duties of municipal councils to prevent by police regulation anything
calculated t.o disturb the peace in. the roads and places of meeting,
by means of processions, etc. 2 . It is not, however, within the power
of the municipal authorities to prevent the distribution of printed
matter in the public streets, on the pretext that such printed matter
is contrary to good morals and to public order, and thus to establish
a kind of legal censorship 3 .

L I M I T S OF CIVIL X A W *

If the stoppage of work ,be not regarded as a punishable delict,
the question may be asked, does it nevertheless entail some civil
responsibility, and, if so, of what kind. The answer to this question
will vary according to the solution given to an analogous problem,
the question whether a sudden stoppage of work involves the rupture
or merely the suspension of the labour agreement. This problem has
not been dealt with in legislation. The Act of 10 March 1900 on the
1
Court of Cassation, 22 March and 21 June i860, Pasicrisie, 1866,
I, pp. 114-274.
3
Court of Cassation, 8 Aug. 1870, Pasinomie, 1870, p. 447.
8
Court of Cassation, 18 Jan. 1892.
* See p. 241.

BBI.GIUM

labour agreement does not mention a strike or lockout as among the
legal causes of rupture.
The theory involved draws a distinction between legal strikes
and lockouts, the object of which is to secure proper observance of
agreed clauses, and strikes and lockouts the object of which is to
amend the labour agreement. It has been seen that the Royal Decree
of 12 May 1926 makes use of a similar distinction for the purpose
of determining whether to grant or refuse unemployment relief to
workers on strike. However that may be, legal theory has in general
maintained the thesis that the labour agreement is broken x.
The consequences of this are as follows :
In the event of an agreement for a given period being broken,
legal proceedings will be based on the violation of the provisions
of the agreement. If, on the other hand, an agreement for an
indefinite period is broken, the right of the injured party may be
based on section 1780 of the Civil Code. In the former case, damages
will be assessed, barring agreement to the contrary, on the basis of
any damage caused or suffered (section 1152 of the Civil Code). As
regards the agreement for an indefinite period, the authors of the
1900 legislation allow the party injured by the cancellation one of the
two following methods : (1) he may either claim from the other
party, without having to supply proof, a lump sum indemnity equal
to half the wage corresponding either to the period allowed for
previous notice or to that portion of the period still remaining to be
covered (section 22 of the Act concerning the labour agreement) ;
(2) he may claim compensation for all damage caused (section 23
of the Act concerning the labour agreement) 2 ; but in this case he
must prove the existence and extent of the alleged damage (section
1315 of the Civil Code).
In practice, however, the courts, while affirming the principle
of the unlimited responsibility of strikers, tend to attenuate the
enforcement of the principle.
To this individual responsibility, which is incurred by everyone,
is added a collective responsibility if the rupture of the agreement is
the result of previous concerted action due to the intervention of a
trade union. This question is of no more than academic interest,
1

Civil Court of Liege, 5 Feb. 1908, Pandectes périodiques, 1908, No.
273 ; cf. also D E MUELENAERE : La grève et le ccnvtrat de travail, p. 311 ;
cf. also Justice of the Peace of Fléron, 27 March 1907, Pandectes périodiques, 1907, No. 10S7.
3
Cf. Pandectes beiges : " The Labour Agreement ", No. 2065, etc.
Freedom of Association

258

FREEDOM OF ASSOCIATION

since although trade unions may be compelled to make good the
damage of a strike which they have organised, it would not appear
possible for the situation to be the same for de facto trade unions,
which have no legal existence. Moreover, there can be little doubt
that the fact that this danger, even a theoretical one, threatens a
trade union which promotes a strike, and by endangering its capital
would deter the trade union from any attempt to obtain legal
recognition.
In addition to his right to damages, the employer is also entitled
immediately to dismiss a worker who has broken the labour agreement.
This latter sanction might at a period of emergency render the right
to strike illusory.

SUMMARY AND CONCLUSION

An explanatory statement to the Bill guaranteeing trade union
freedom which, with the Government amendment, became the Act
of 24 May 1921, states : " The Bill which is submitted to you
proclaims the principle of trade union liberty. " Thus, trade union
liberty is, in the view of Belgian legislation a recent achievement
of the trade union movement. The present significance of this theory
is made clear by the previous evolution of legislation on the question.
At the outset, and in accordance with the new legal position
created by the abolition of the guilds and the proclamation of the
freedom of labour, all concerted action with the object of influencing
conditions of labour and, à fortiori, all concerted stoppages of work
were forbidden. The Penal Code of 1810 also forbade combination
between employers (section 414), combination between the workers
(section 415), and combination between owners of the same class of
goods (sections 419 and 420).
In 1866, under the influence of the economic changes which
were then taking place, under the pressure also of the de facto organisations which had been set up despite the prohibition of the law,
sections 414 and 416 of the Penal Code were repealed. From this
time combination and the strike were legal. At the same time temporary combinations might appeal to Article 20 of the Constitution and
form permanent occupational associations; but this freedom was
confined within very narrow limits by the new section 310 of the
Penal Code of 1S67, which created the special delict of prejudice to
the freedom of labour. It should be remembered that this section not
only rigorously repressed delicts under the ordinary law committed on
the occasion of a labour dispute, but in addition fixed penalties for a
whole series of actions, such as fines, prohibitions, proscriptions,
meetings near factories etc., which were not covered by the ordinary
law.
In 1921 this system was declared to be incompatible with the
de facto position achieved by trade unionism, and section 310 of the

2Ó0

FREEDOM OF ASSOCIATION

Penal Code was repealed. From that time forward occupational associations returned to the regime of the ordinary law. But the Government went yet farther on the path of reform. By the Act of 24 May
1921, it rounded off the constitutional principle of the freedom of
association by penal sanctions against malicious attacks on the principle by outside parties or parties to the labour agreement.
Thus, by successive stages the trade union acquired first the
freedom to combine and to strike, and then freedom of action by
means of the repeal of section 310. In our time the right of occupational association is a publicly recognised principle, under the protection of the Act of 24 May 1921.
This legal recognition of the principle of trade union liberty is
itself no more than the preliminary condition and point of departure
of occupational organisation. In Belgium such organisation is to a
considerable extent a matter for future development ; trade unionism
is looking for the definite formulœ for it and, pending these, is preparing provisional methods. Already occupational organisation is
strengthened by the collective regulation of conditions of labour, the
amicable settlement of collective disputes and trade union collaboration and control in private undertakings and in the administration
of social laws.
It may be observed that, to the extent to which it already exists,
this independent system is the result of the spontaneous initiative of
the contracting parties, namely, the employers' associations and the
trade unions. It may be asked whether in the near future the
organisation will be the object of a single form of legislation. The
following declaration of the Minister of Industry and Labour suggests
an affirmative answer to the question : " Before submitting to
Parliament more general schemes which presuppose a co-ordinated
system of legislation on the legal personality of associations, on collective agreements and on joint committees . . . " 1
To judge by the previous development of trade union rights,
such a settlement of the question could only be effected as a function
of occupational organisation and by the affirmation of the predominance of collective over individual interests.

Report of the Minister of Industry and Labour, Moniteur belge,

12 M a y 1926.

BIBLIOGRAPHY

Chief Sources Consulted
COLLECTIONS OF LEGAL DECISIONS

Belgique judicaire.
Répertoire de l'administration
By de BROUCKÈRE and

et du droit administratif

de la Belgique,

TIELEMANS.

Journal des tribunaux.
Paqdectes belges.
Pandectes périodiques.
Pasicrisie belge.
Pasinomic belge.
C H I E F R E V I E W S ( G E N E R A L AND LABOUR

Revue
Revue
Revue
Revue
Revue
Revue
Revue

LEGISLATION)

de droit beige.
des accidents du travail et des questions de droit industriel.
pratique de droit industriel.
de droit international.
de droit pénal et de criminologie.
de l'administration et du droit administratif.
du Travail. Published by the Ministry of Labour and Industry.

HISTORY O F T R A D E UNIONISM AMONG W O R K E R S AND EMPLOYERS

Comptes rendus officiels des congrès syndicaux annuels (23 years).
Rapports sur le mouvement syndical chrétien.
Journal des correspondances (Trade Union Committee of Belgium).
Les Cahiers de la Commission syndicale de Belgique.
Avenir Social (Review of the Belgian Labour Party).
Documents parlementaires publiés à l'occasion de la discussion des
divers projets de loi sur la liberté syndicale.
DE LEENER : L'organisation syndicale des chefs d'industrie.
Brussels, 1909.
J. LEWINSKI : L'évolution industrielle de la Belgique. Brussels, 1911,
DE SMET : L'évolution du mouvement syndical en Belgique.
L. DECHE.SNE : La grève contre le tissage de métier dans l'industrie
lainière de Verviers.
— Syndicats ouvriers belges.
— Economie syndicale.
E. VANDERVELDE : Enquête sur les associations
professionnelles
d'artisans et d'ouvriers en Belgique. Brussels, 1892.
— Essai sur la question agraire. Paris, 1903.
— L'exode rural et le retour aux champs. Paris, 1903.

2Ó2

FREEDOM OF ASSOCIATION

VANDERVELDE : Le Collectivisme

et l'Evolution

industrielle.

Paris,

en Belgique.

Paris,

1902.

— La Belgique ouvrière.

Paris, 1906.

VANDERVELDE and D E S T R É E :
1902.

socialisme

E. MAHAIM : Etude sur l'association
professionnelle.
— Le droit international
ouvrier.
— " Das belgische Gesetz über die Berufsvereine ". Sociale Praxis,
1898, Vol. VIH, p. 60.
Louis VARLEZ : Quelques pages d'histoire syndicale belge (Memoirs
and Documents of the Musée social). Paris, 1902.
— Etude sur la Fédération ouvrière gantoise,
— Economie sociale (Report for the Universal Exhibition, Paris,
1900).
BIBLIOGRAPHY O F CERTAIN SPECIAL SUBJECTS CONNECTED WITH
T R A D E UNIONISM

Freedom of

Association

Pandectes beiges : " Freedom of Association " ; " Freedom of
Assembly ".
O. ORBAN : Le droit constitutionnel de la Belgique, Vol. III.
DuPRiEz : Le droit de réunion.
E. PouLLET : Histoire politique nationale.
Delicts against the Freedom of Labour
Pandectes beiges : " Freedom of Labour " ; " Workers' Strike " ;
" Rise and Fall of Wages " ; " Workers' Combination ".
WAELBROECK : De la liberté des

NYPELS : Législation

criminelle

coalitions.

de la Belgique,

Vol..II.

Brussels,

1869.
SIMONS : " L'article 310 du Code pénal et les atteintes à la liberté
du travail ". Revue du droit pénal et de criminologie, 1909.
Trade Union Act '
NINAUVE and VANDERVELDE : Rapport

la personnification

civile aux unions

T H E A T E : Les Unions

sur le projet de loi accordant

professionnelles.

Dr. BARNICH : La législation et l'organisation
Vol. I.
"
'

ouvrière en Belgique,

Act of 24 May 1021 on Freedom of Association
Henri VELGE : Commentaire législatif de la loi garantissant la liberté
d'association.
Brussels, 1921.
VAN PARYS : " Les atteintes à la liberté du travail et aux droits
d'association ". Revue du droit pénal et de criminologie, 1921.
Collective

Agreements

Pandectes belges : " Collective Labour Agreements ".
BRANTS : L'état légal du contrat collectif de travail.
Georges ANDRÉ : " The Collective Agreement ". Journal des Tribunaux, 1911.

BELGIUM

263

DE VISSCHERE : Le contrat collectif de travail. Bill on collective
agreements : Janson Bill of 6 May 1908 on the Society of Workers draft
of a bill on collective labour agreements, adopted by the Superior Labour
Council of Belgium, 27 June 1911 ; Devèze Bill, 24 February 1920.
The Strike and the Labour

Agreement

M. BODEUX : A propos des grèves : Le préavis dans le contrat de
travail.
B. BRUGHMANS : Etudes sur le droit de grève.
— " Définition de la grève ". Revue pratique de Droit
industriel,
1898.
Jules DESTRÉE : " Choses de grève ". Journal des Tribunaux, 1891.
— La grève générale et le contrat de louage de services.
P. GERLIER : La déclaration de grève équivaut-elle à la résiliation du
contrat de travail ?
Code du Travail belge. By Jules DESTRÉE, Max HALLET, Eugène
SOUDAN, and Emile JANSON.

1924 edition.

Chief Legislative Texts concerning Trade Union Liberty
The Le Chapelier Act (1791)Penal Code, 1810, sections 414, 415, 416, 291, 292, 293.
Decree of 16 October 1830.
Article 20 of the Constitution of 1830.
Reconnaissance légale des mutualités.
Act of 3 April 1851, completed
by the Act of 23 June 1894.
Act of 1866, abolishing the delict of combination.
New Article 310 of the Penal Code, 1867.
Act of 30 April 1892, increasing the severity of the provisions of
Article 310 of the Penal Code.
Act of 31 March 1898, on occupational unions.
Act of 24 May 1921, repealing section 310 of the Penal Code.
Act of 24 May 1921, guaranteeing Freedom of Association

LUXEMBURG
CHAPTER I
THE DEVELOPMENT OF TRADE ORGANISATION
AMONG WORKERS AND EMPLOYERS

§ 1. — The Workers' Movement
The trade union movement in its modern form is of recent origin
in Luxemburg. Its progress follows that of large-scale industry,
which has only occupied the first place in the economy of the country
since the beginning of the twentieth century x .
It is true that even in the second half of the nineteenth century,
when agriculture and crafts were still the basis of the national life,
several trade unions, recruiting their members from the skilled labour
of manufacturing industry — printers (1864), cigar-makers (1865),
glove-makers (1871) — had been able to assure their members stable
conditions of work and mutual aid in periods of economic crisis, old
age, and sickness. But it was not until the beginning of the present
century and through the influence of the neighbouring German federations that the first step was taken towards the organisation in local

1
The actual population of the Grand Duchy of Luxemburg amounts
to about 260.000 inhabitants. Its distribution by principal occupations
according to the industrial and occupational census of 12 June 1907 is as
follows : agriculture, gardening, cattle-breeding, forestry and fisheries,
891576 ; industries, including mines and building trades, 104,271 ; commerce and transports, cafés and inns, 30,514 ; domestic servants and wage
earners of various classes, 1,862 ; civil servants of the State and communes, ecclesiastical and liberal professions, 10,739 ; persons with no
occupation or no occupation indicated, 12.860 (Cf. Annuaire officiet au
Luxembourg, 1925, p. 52).

266

FREEDOM OF ASSOCIATION

sections of the wage earners of large-scale industry. Attempts at
concentration of the workers' forces date from 1906 ; they ended
some years later in the creation of the Group of Free Unions, which
included thirteen organisations, of which six were branches of foreign
organisations and seven indigenous. This was simply a framework
of organisation which lacked membership until the war. In 1916
powerful autonomous federations of large-scale industry (metal workers and miners) were formed, solid elements of the future central
organisation. The union of all the workers, prepared by the congresses of July 1917 and June and September 1918, was definitely
realised-in 1919 by the fusion of the Group of Free Unions, the
Federation of Miners and Metal Workers, and the Independent
Federation of Railway Employees in a single organisation — the
Trade Union Council (Commission syndicale).
From that time on, the membership showed an uninterrupted
increase : 9,290 members in 1918, 20,899 i Q I 9 I 9 , 27,000 in 1920,
representing practically all the wage earners 1.
Trade unionism then began to show itself as a social force. The
two essential points of its immediate programme of demands were
soon laid down by law : the establishment of the eight-hour day
by the Grand-Ducal Decree of 14 December 191S and the institution
of works councils by the Decree of 26 April 1919.
The economic crisis of 1921-1922 checked for a time the progress
of trade unionism. When the iron and steel works, hitherto under the
financial control of German companies, were transferred to native
and foreign companies, the organised employees requested the Government to give them guarantees of the rights they had acquired (maintenance of the eight-hour day and the works councils) and especially
of stable employment. As the crisis became more serious, the number
of collective dismissals rapidly increased. Stimulated by the example
of what was taking place in Germany and in Italy, the wage earners
of Luxemburg claimed to defend their right to work by seizing the
works (February-March 1921). The failure of this attempt involved
serious consequences for the trade union movement, especially in the
matter of legislation ; the repressive measures of the Penal Code were
maintained (section 310 : " offence of interfering with freedom of

1
According to the last official census of 1926, the total number of
wage earners in industry and commerce is about 37,000, of which one-third
— a little over 12,000 — are foreigners.

LUXEMBURG

267

work ") 1, the proposed law guaranteeing freedom of association was
postponed, the works councils were provisionally suppressed (Decree
of 11 March 1921) ; in fact the movement was appreciably checked
and only gradually resumed its progress. The number of members
fell in 1921 to 21,157, in 1922 to 12,000. In 1923 it increased again
and the Trade Union Council now numbers about 15,000 members.
At the Fifth Trade Union Congress (1923) the workers' trade
union movement adopted a definitive constitution and created permanent executive bodies : on the first level district committees, which
assure division of labour by decentralisation of administration ; on
the second level the Conference of Trade Union Committees, which
has as its special function to prepare the ground for the creation of
industrial federations ; at the head the Trade Union Council, which
permanently represents the whole body of organised workers. On it
devolves specially the direction of collective disputes, which it supports financially in case of need. It should be borne in mind that it
authorises strikes in industries of public interest only if attempts at
conciliation have first failed. The Trade Union Council, composed
of nine regular members and four substitutes, elects within itself a
Governing Body of four members 2 .
Through its strong membership and its solid structure, the Trade
Union Council has succeeded in gaining the essential points in its
social programme : the effective application of the eight-hour day,
the restoration of works councils, the establishment of elective trade
chambers, the Code of social insurance, paid holidays (adopted in the
first reading), with the prospect of legislation on compulsory
unemployment insurance, a minimum wage for industrial workers, and
collective bargaining. The consequences of the crisis of 1921-1922
are wiped out.
The Trade Union Council, which is the most important organisation of wage earners, conducts its industrial policy on the basis of
ideas held in common with the Socialist Party of Luxemburg.
The Federation of Unions of Salaried Employees, which numbers
about 4,000 members, is not affiliated to the Trade Union Council,
but acts in close connection with it.
The Catholic Party has made on its side a great effort to organise

See infra, p. 270.
Regulativ der freien Gewerkschaften Luxemburgs (ordentlicher Gewerkschaftskongress in Luxemburg, Sept. 1923).
2

268

FREEDOM OF ASSOCIATION

the workers. At first the Christian unions exhibited rather the
character of mixed sectarian associations than that of workers'
organisations properly so called. At present, under the pressure of
the same economic needs, they, like the free unions, are recruiting
almost all their members among wage earners. Their social programme presents many points of contact with that of the Trade Union
Council.
The Federation of Christian Unions numbers about 500 members.
§ 2. — Employers' Organisations
' The organisation of manufacturers dates from the war. In
December 1918 about 60 representatives of medium-scale and small
industries, indigenous in the Grand Duchy, founded a Federation of
Luxemburg Manufacturers. Large-scale industry held aloof from
this organisation at first, but, under pressure of the trade union movement among workers, it joined the existing federation and then
assumed control of it.
The Federation of Manufacturers at present includes all the
manufacturers of the country united for the purpose of protecting
their industrial interests. It will study all economic and social questions which affect it and will take steps and make decisions to
safeguard them whenever it thinks fit *.
Mention should also be made of the Middle Classes Federation,
which includes the Federation of Commercial Associations and the
Federation of Artisans' Associations.
The spirit of association has also shown itself in agriculture. The
central agricultural organisations : the Federation of local Agricultural Associations and the Federation of Vine Growers' Associations
include practically all the farmers and vine growers of the country
and play a predominant part in the rural economy.

1
Cf. Statuts de la Fédération des industriels luxembourgeois, adopted
at the General Constituent Assembly, 3 June 1920.

CHAPTER II
LEGAL STATUS OF TRADE ASSOCIATIONS

The trade union legislation of Luxemburg has followed the
judicial principles established by the neighbouring legislators of
France and Belgium \
This is easily explained if one remembers the political bonds
which united Luxemburg first with France (1795-1815) and then
with the Austrian Netherlands (1815-1867), a group of powers of
which Belgium was a part until 1830.
As a starting point, French legislation was adopted as a whole ;
it is characterised on the one hand by the suppression of corporations
under the Le Chapelier law of 2-17 March 1791, and on the other
hand by the prohibition of combinations, whether of workers or of
employers, with penal sanctions under sections 414-416 of the French
Penal Code ; this remained in force until 1879 2Subsequently the trade union legislation of Luxemburg was completely assimilated to the Belgian legislation.
The Luxemburg Constitution of 17 October 1868, which replaced
the ephemeral Constitution of 1848', was drawn up by the
Government of the Netherlands so as to resemble very closely the
Belgian Constitution of 1831, and in order to satisfy the desire for
autonomy in the Grand Duchy of Luxemburg, guarantees in the very
words of the Belgian charter freedom of association for all social
classes.
The people of Luxemburg have the rig-ht of association. This right is
not subject to any preliminary authorisation.
1
Subsequent references are to the corresponding chapters of the
French
and Belgian monographs on Freedom of Association.
2
See under France : " History of Trade Union Legislation and of
the Trade Union Movement ", p. 87.

270

FREEDOM OF ASSOCIATION

T h e Constitution also protects in the same words the r i g h t of
assembly, distinguishing like the Belgian law on which it is based.
between assemblies in closed premises and assemblies in the open.
Only the latter fall under the preventive regulation formulated by
the communal law of 24 F e b r u a r y 1843.
" T h e people of L u x e m b u r g ", according to Article 25, " have
the right to assemble peacefully without arms in accordance with the
laws regulating the exercise of this right without the necessity of any
preliminary authorisation.
" T h i s does not apply to assemblies in t h e open air, political,
religious or other ; these assemblies remain entirely subject to the
laws and police regulations." 1
T h e L u x e m b u r g legislators subsequently adopted another Belgian
precedent, t h a t of the Act of 1867, formulating restrictions on the
rights of trade unions. I n 1879 they created the offence of interfering
with freedom of work (section 310 of the Penal Code) ; a n d , still in
s y m p a t h y with Belgian legislation, reinforced these regulations by
t h e Act of 10 J u n e 1898. T h e new section 310 says :
Any person who, with the object of forcing an increase or decrease of
wages or of interfering with the free working of industry or labour,
shall commit acts of violence, utter any threats or abuse, pronounce
fines, prohibitions, interdictions or any proscriptions whatever, whether
againts the workers or against their employers, shall be punished by
imprisonment of from one month to two years and a fine of from 50
to 1,000 francs or either one of these penalties.
The same shall apply to any persons who shall interfere with the
freedom of masters or of employees whether by assembling near the
establishments in which work is going on or near the dwelling of the
managers, or by committing acts of intimidation against workers on
their way to or from work, or by causing explosions near the establishments in which work is going on or in districts inhabited by workers,
or by destroying the fences of establishments in which work is going on,
or of dwellings or land occupied by workers, or by destroying or making
unfit for the use for which they were intended equipment, instruments,
machinery, or industrial or manufacturing engines with the exception of
steam engines, the destruction of which remains subject to Article 523
of the Penal Code.
T h e L u x e m b u r g courts have also since the adoption of this Article
followed decisions handed down by Belgian courts 2-

For the commentary on these constitutional legulations, see under
Belgium, " The Constitutional Principle Involved ", p. 229, and " Limits
of Administrative Law ", p. 255.
2
See under Belgium : " Delict of Prejudice to the Freedom of
Labour ", p. 202 ; " Repeal of Section 310 (24 May 1921) ", p. 226 ; and
" Limits of Civil Law ", p. 256.

LUXEMBURG

271

T h i s parallelism in legislation extends also to present plans for
reform, with the difference t h a t whereas they were realised in Belgium
in 1921 they have remained u p to the present in the stage of proposals
in L u x e m b u r g . T h e Bill abolishing section 310 of the Penal Code,
introduced in the Chamber of Deputies at the end of the war, never
reached the stage of legislation. After the events of the spring of
1921 (occupation of the works) the Council of State, while believing
it necessary to remove from section 310 those clauses which were
directly contrary t o trade unionism (fines, prohibitions, expulsions,
or any proscriptions whatever, clauses dealing with acts of intimidation and assemblies near workshops), proposed to the Chamber of
Deputies for adoption the following text which retained for the other
means of restraint a special prohibition of the offence of interfering
with freedom of work :
Any person who, in order to constrain another person either to work
or not to work or to employ labour or not to employ labour, shall have
made use of acts of assault, violence, injuries, or threats, or shall have
made him fear the loss of his employment, or the exposure to harm of his
person, family i or fortune, shall be punished by imprisonment of from
8 days to one month, and a fine of from 51 to 500 francs or either one
of these penalties 1 .
T h e Chamber has not given a decision on the proposal of t h e
Council of State. Other proposals which have remained in abeyance
are a Government Bill 2 guaranteeing freedom of association, based
on the Belgian Act of 24 May 1921 3 , and another Bill (22 M a r c h
1921) 4 which tended, on the contrary, to reinforce the clauses of
sections 439 and 563, paragraph 8, of the Penal Code (violation of
domicile ; the occupation of the works by the workers in M a r c h 1921
had not been legally punishable, because the elements of the offence
had not all been p r e s e n t ) , and section 317 of the Penal Code (forbidding the carrying of a r m s ) , and to modify in a more rigorous direction
sections 1 and 2 of the A c t of 29 Juli 1869 on the Press.
T o sum u p , the trade union legislation of L u x e m b u r g is governed
by two legal texts of different origin and import : section 310 of t h e
Penal Code and Articles 24 and 25 of the Constitution. Section 310,

Documents

parlementaires,

Chambre des députés,

No. 26A, 1921-

1922.
2

Ibid., No. 5, 1921-1922.
See under Belgium : " Act Guaranteeing Freedom of Association ",
p. 228.
4
Documents parlementaires, Chambres des députés, No. 6, 1921-1922.
3

2-J2

FREEDOM OF ASSOCIATION

though it continues to hold its potential menace over trade union
activity, seems to have practically fallen into innocuous desuetude,
for hardly any instances can be quoted of convictions under this law in
recent years. On the contrary, in virtue of the clauses of the Constitution, trade associations enjoy within the limits of common
law a status of complete liberty. No legal restriction. affects
this right either as to the persons who can take advantage of it or as
to the ends which the association may legally pursue. There exists
no formal condition preliminary to their formation and no surveillance
over their external activities is in force. The union rules which the
organisations draw up for themselves in perfect freedom, and which
lay down the regulations governing the internal organisation, the
nomination of executive bodies and the voluntary dissolution of the
union, are in this respect the only law of the organisations.
Nevertheless, the unions being merely de facto associations, are
not invested with legal personality, unless they assume the form of
commercial or co-operative societies. But the resulting handicaps in
the matter of property rights do not impede the action of the unions
in the economic and social sphere. In default of legal capacity,
restricted in its effect, a broader social capacity accrues to them
through their de facto recognition by the other contracting party and
by the State as authorised representatives of the organised trades.

CHAPTER I I I
POSSIBILITIES OP TRADE UNION ACTIVITY IN THE
ECONOMIC AND SOCIAL SPHERE

In the economic and social sphere trade union activity shows itself
above all in the practice of collective bargaining, organised conciliation and arbitration, and representation of the workers in establishments. The last of these problems is already regulated by law, and
the first two seem to be on the eve of legislative settlement.
§ 1. — Collective Bargaining
According to a Bill before Parliament ', collective agreements shall
be concluded by the trade unions in their own name, and they shall
have a mandate to this effect by a special clause which is to appear
compulsorily in the rules of the associations. A union's agreement
will thus acquire the force of a legal regulation and will enjoy judicial
sanction. Trade unions capable of concluding collective agreements
will be invested with legal personality. They will be able to carry
on all collective and individual rights to sue or to be sued, deriving
from the collective agreement and directly or indirectly affecting
the trade interests of the association or its members. It will be
possible to extend the collective agreement compulsorily to all wage
earners of an undertaking, following a decision of the Joint Conciliation Commission. It will also be possible to declare the agreement
universally binding on a whole trade or for a whole district.
§ 2. — Conciliation and Arbitration
The question of the friendly settlement of collective disputes is
1
See " Bill respecting collective agreements and compulsory arbitration ", brought before the Chamber of Deputies in the Session of

24 April

1917.

Freedom of Association

274

FREEDOM OF ASSOCIATION

closely bound up with the problem of the conclusion of collective
agreements in the Bill.
The parties will be obliged to bring their disputes in the first
instance before a Mixed Joint Commission created at the time of the
conclusion of the agreement ; appeals shall be brought before the
Central Conciliation Council. Decisions given by these bodies will,
however, be binding only if the two parties have so agreed by a
special clause in the collective agreement.
In order to be able to base their decisions on complete knowledge
of the case, the Joint Commissions will have, together with the workers' representatives (whose powers are limited to the establishment
in which they work), the right to supervise the loyal observation of
collective agreements throughout the whole range of their application.
The parties lay down by agreement between themselves the extent
and severity of penalties for breaking the contract of work. In case
of repetition of the offence, however, the Conciliation Commission
may compel the guilty party to furnish a guarantee of the loyal
execution of the agreement.
Altogether, the Bill is an attempt to settle simultaneously the
closely associated problems of capacity to conclude collective agreements, legal recognition of trade associations, and organised .conciliation and arbitration.
§ 3. — Works Councils
While the problem of collective bargaining and settlement of
disputes is still awaiting final solution, the idea of trade representation
in the form of technical committees, advisory boards, and works
councils is to a great extent realised in Luxemburg. The fact that the
members of these different bodies representing labour in the works,
though elected according to law by the whole body of workers
interested, are in reality largely the representatives of the trade
unions, calls for a concise analysis of the various laws in force
concerning them.
The Act of 31 October 1919 1 provides for the establishment of
committees of employees in all undertakings in which at least 15
1

Act respecting the legal regulation of the contract of service of

private employees (see INTERNATIONAL LABOUR OFFICE :

Series, 1Q20 — Lux. 2).

Legislative

LUXEMBURG

275

employees are regularly engaged (section 24). The duties of the committee consist in giving advice as to the rules of employment of the
undertaking, settling disputes between employer and workers by way
of conciliation, safeguarding and protecting the rights of employees,
participating in the direction of all welfare schemes established by
the employer for the improvement of the situation of the employees
or their families (section 25). Disputes respecting labour contracts
shall be settled by an arbitration court composed of the justice of the
peace or his representative as president and two assessors, of whom
one shall be chosen from among the employers and the other from
among the adult employees who have attained the age of 21 years.
The Grand-Ducal Decree of 14 May 1921 1 organised representation of railway servants on two levels :
In each department the employees of each class elect delegates.
These delegates are summoned every three months to meet the depart• mental chiefs to submit to them by classes their wishes in the matter
of local organisation of work, hygiene, safety, and all local questions
that may arise, to the exclusion of questions of a general nature.
The regular delegates to the departmental chiefs elect in turn
delegates to the general management (central delegation). The duties
of the central delegation principally consist in giving advice as to
the rules of employment affecting their interests, collaborating in
the drawing up of classification tables, participating in the management of welfare schemes established in the system for the improvement
of the situation of the personnel, settling by way of conciliation difficulties of a general nature which may arise between the personnel
and the management, and giving advice as to the improvement of
conditions and methods of work and thus collaborating to assure a
maximum efficiency (sections 17-22).
The principle of workers' representation was finally laid down by
the Decree of 8 May 1925 re-establishing 2 in industrial establishments
workers' delegations, first instituted by Decree of 26 April 1919,
modified on 26 July 1920 and 8 October 1920, and suspended as a
result of the events of the spring of 1921 by Decree of n March of
that year.
The new Decree reproduces the principal clauses of the Decrees
1
Decree approving the staff regulations of the Luxemburg railways
(Mémorial
du Grand-Diuché de Luxembourg, 14 May 1921, No. 25).
2
.. See Memorial, 9 May 1925, No. 21 : Legislative Series 1925 —
Lux. 1.

2j6

FREEDOM OF ASSOCIATION

of T919 and 1920. In all industrial establishments employing regularly not less than 20 workers, a permanent works council shall be
instituted (délégation principale) l.
The competence of the councils includes questions relating to
labour contracts, welfare and hygienic institutions, wages, and other
conditions of work (section 1, subsection 2). They are to be consulted
on the occasion of the fixing of wages of a permanent and general
nature, or of the drawing up of collective contracts of work, and also
in connection with the regulation of holidays and apprenticeship ;
they are to be advised whenever changes are made in wages (section
19). The principal council shall be consulted respecting the drawing
up and amendment of rules of employment (section 20). They
intervene in questions of dismissal of workers ; if a worker is dismissed
without notice, they are to be informed of the reasons ; if changes in
the establishment, require the dismissal of a large number of workers,
they are to be informed of it sufficiently long in advance.
A special guarantee is provided against arbitrary dismissal of
members of the council by the employer : they may not be dismissed
for action taken in execution of their duties as delegates, provided
the said action does not constitute a serious breach of the rules of
employment or of the laws in force (section 17). Finally, the application of laws concerning the health and safety of the workers is also
placed under the control of the councils : they assist in combating
the risks of accidents and diseases, and assist the inspectors of labour
and other competent authorities by making any proposals that may
be useful (section 22). They may transmit t.o the employer wishes
expressed by the bodies which they represent respecting optional
welfare schemes.
To sum up, though the workers' councils have no part in the
administration or strictly speaking in the management of undertakings, they are called upon to play an important part in the
protection of the material and moral well-being of the wage earners.

1
" If the works consists of several departments, a secondary council
may be constituted for each department on the proposal of the principal
council, provided that each department employs at least 50 workers. "
" If an undertaking consists of several separate works, the DirectorGeneral of the department concerned -may «stablish a central council,
after hearing the employers and the workers as represented by their
councils. " (Sections 1-3.)

LUXEMBURG

277

§ 4. — Collaboration of Trade Associations with Public Authorities
Collaboration of trade associations with public authorities is
assured in a permanent and effective way by the Act of 4 April 1924,
which established five elective trade chambers l.
These five chambers correspond to the great trade organisations :
the Chamber of Agriculture to the Federation of Local Agricultural
Associations and the Federation of Agricultural Societies ; the Chamber of Commerce to the Federation of Luxemburg Manufacturers and
the Federation of Commercial Associations ; the Chamber of Handicrafts to the Federation of Artisans' Associations ; the Chamber of
Salaried Employees to the Federation of Unions of Salaried Employees ; the Chamber of Labour to the Trade Union Council and
the Federation of Christian Unions 2 .
In the composition of each of these chambers the Act takes
account of the numerical and economic importance of the various
elements represented therein : thus, in the Chamber of Agriculture,
consisting of 19 members, 5 represent viticulture ; in the Chamber of
Commerce, consisting of 21 members, 3 seats are allotted to wholesale
trade, 5 to retail trade, 4 to iron arid steel works, 1 to each of the
following industries : tanneries, breweries, textile factories, banks,
insurance companies, mines and quarries, hotels, and 2 to all other
branches of industry and commerce ; in the Chamber of Salaried
Employees, consisting of 20 members, 6 seats are allotted to employees
in large and medium scale industry, 8 to railway employees, 2 to
employees in small scale industry, 3 to commercial employees, and 1
to employees in agriculture ; in the Chamber of Labour, consisting of
18 members, 12 seats are allotted to workers in large and medium
scale industry, 4 to small scale industry, and 2 to commereiai
undertakings. For the Chamber of Handicrafts, consisting of
12 members, a Ministerial Order shall determine before each election
the distribution of the seats among the various trades.
The duties of the trade chambers (much the same for all chambers) cover all the interests of the trade which they represent. Since
they are invested with legal personality, they are to create and if
necessary to subsidise establishments, institutions, organisations, and
1
2

See Méviorial, 1924 ; and Legislative Series, IÇ24 — Lux. 1.
See Chapter I, p. 265.

FREEDOM OF ASSOCIATION

departments the main purpose of which is to improve the situation
of those concerned (agriculturists, commercial employees, wage
earners, etc.), to promote the activities of such bodies, give opinions,
make complaints, demand enquiries, and compile statistical data.
They have the right to make proposals to the Government, which shall
examine them and submit them to the Chamber of Deputies if they
relate to matters within the competence of the latter.
The opinion of the trade chambers shall be procured on all Acts
and Ministerial Orders and Grand-Ducal Decrees which relate mainly
to their trade interests (sections 29, 32, 35, 38, 41).
By way of example, the following are some of the prerogatives
within the competence of the Chamber of labour. It protects and
defends the interests of wage-earning employees. It supervises in
particular the observance of labour legislation (insurance, night work,
employment of women and children, hours of work, etc., regulations
respecting sanitary conditions in workshops, dwellings, etc.). It
supervises individual and collective contracts of employment and the
observance thereof. Its opinion must be procured on all Bills affecting labour before the final vote of the Chamber of Deputies is taken.
It transmits to the Chamber of Deputies its observations on the use
made of the credits allocated in the previous year to promote the
interests of wage-earning employees, and gives its opinion on the
grants to be applied for in respect of the following year. It makes
proposals concerning the supervision of the industrial training of
wage-earning employees. And this enumeration is not restrictive
(section 41) *.
The members of the trade chambers are elected by universal suffrage
with a special electoral college corresponding to each group represented 2 (agriculturists, commercial employees, artisans, etc.), by the
majority system for the Chambers of Agriculture, Commerce and
Handicrafts, and by the proportional representation system for the

See the corresponding clauses for other chambers (sections 29, 32,
35, and 38).
2
Qualification as an elector is determined by the entry of the name
in the electoral register. The electoral register is drawn up by the
Council of Mayor and Aldermen in alphabetical order and separately for
each chamber and group ; it is not liable to alteration except for the
deletions and entries which may be made on the occasion of the revision
which is carried out every four years (see the rules of procedure for
elections of trade chambers, Grand-Ducal Decree, 22 Nov. 1924).

LUXEMBURG

279

Chamber of Salaried Employees and the Chamber of Labour so as to
protect the rights of union minorities.
It goes without saying that the several trade unions exercise a
quite predominant influence in the composition and activity of the
respective chambers.
The institution of trade chambers is a most advanced step toward
direct representation of trade interests and corporate organisation.
Another innovation of the Luxemburg Government deserves
special attention : it has placed the execution of certain important
Acts of social legislation under the supervision of the interested parties
themselves. For example, the Act of 6 August 1921 concerning the
financial participation of communes, employers, and workers in the
allocation of unemployment funds directs that the communal
administrations, in passing on the acceptance or rejection of requests
for unemployment assistance, shall establish to this end joint committees composed of an equal number of representatives of the
commune, the employers, and the workers, and presided over by a
member of the Council of Aldermen (section 11) ; in the nomination
of representatives all employers' and workers' organisations and
unions may present lists of candidates. Similarly the Act of 17
December 1925 concerning the Code of social insurance l pays considerable attention to the representation of the interested parties in
the executive organs of sickness funds : factory funds, district funds,
and central committee.
The central committee for sickness funds, which has the broadest
powers of supervision and control, consists of nine members : the
chairman, an employers' representative, and a workers' representative
appointed by the Director-General of Social Welfare ; two representatives of employers and four representatives of the workers insured
to be elected respectively by the interested parties. Section 138 of
the same Act provides for the addition of workers' delegates to the
Executive Committee of the Society for Mutual Insurance against
Accidents. Workers' delegates also form a part of the Arbitration
Court, which decides appeals made concerning the amount of indemnities to which workers are entitled.
The application of social legislation, through the influence which

1
See Mémorial, 1925, No. 63, p. 877 ; and Legislative Series, ¡925 —
Lux. 2.

a8o

FREEDOM OF ASSOCIATION

the unions possess in this sphere, is at least indirectly subject to threefold union control ; first, under the Act of 22 May 1902 concerning
inspection of work, which authorises the appointment of workers'
delegates with the status of assistant inspectors in addition to the
official inspectors (section 4) ; second, under the Decree of 8 May
1925 concerning the establishment of works councils in industry,
according to which the works councils are responsible for supervising
the application of laws concerning the health and safety of the workers
(section 22) ; finally, under the Act of 4 April 1924 establishing the
trade chambers, the members of which have the duty of supervising
the observance of labour legislation (section 41).

CONCLUSION

From the legal point of view the trade union situation may be
summarised as follows. The right of trade association and the right
of assembly are guaranteed for all classes of society by the Constitution
of Luxemburg (Articles 24 and 25). The Constitution exempts them
from any preliminary authorisation. On the other hand it has been
pointed out that a Bill for the abolition of the restrictions of section
310 of the Penal Code failed to pass. A similar fate befell a Bill to
guarantee the right of trade association against unjustifiable interference on the part of a third person.
This momentary check in the evolution of trade union law has,
however, not impeded trade activity in the economic and social sphere.
The group of social laws passed in recent years under pressure from
the unions is the best evidence of this. In addition, the collective
regulation of conditions of work, whether in connection with the
conclusion of collective agreements, the friendly settlement of disputes, or the representation of labour in private and public undertakings, has been to a great extent accomplished by organisations of
employers and workers.
But the most striking achievement of union activity in the matter
of direct representation of trade interests is certainly the creation by
the Act of 4 April 1924 of elective trade chambers. These chambers
form valuable centres of information and research and, being from
their inception well informed of the needs and aspirations of the
trade, are in a position to defend them before the public authorities.
They are also headquarters of propaganda and activity where
movements are initiated and social reforms elaborated. They also
form specially qualified technical committees which the Government
is bound to consult.
In addition to this rôle of official advisers representing the trade,
the legislature has delegated to these chambers a part of its powers

282

FREEDOM OF ASSOCIATION

and has handed over to them a small portion of its sovereignty. Armed
with the right of initiating legislation, they bring their proposals
directly before Parliament, which must discuss them and put them
to the vote if they affect the trade. Through this group of powers
the trade chambers, which are in fact inspired by the trade organisations, play an important part in the administration of the State and
within certain limits realise industrial democracy.

Ö1BLI0GRAPHY

O F F I C I A L DOCUMENTS

Mémorial du Grand-Duché de Luxembourg
(Officiai Journal).
La Pasinomie luxembourgeoise
(Collection of Acts, Decrees; and
Orders of the Grand Duchy of Luxemburg).
La Pasicrisie luxembourgeoise (Collection of Legal Decisions).
Documents parlementaires, published at the time of the discussion of
various social Bills.
UNOFFICIAL PUBLICATIONS

Minutes of the Conferences of the Trade Union Council, the Federation
of Christian Trade Unions, and the Luxemburg Manufacturers' Association.
M. KOHL : Das landwirtschatfliehe
burg, 1925.
P. K R I E R : Die Luxemburgische
burg, 1924.
L. METZLER : • Praktische
s/A., 1917.

Genossenschaftswesen.

Luxem-

Gewerkschaftsorganisation.

Luxem-

Formen des Assoziationsgedankens,

Esch.

THE NETHERLANDS
CHAPTER I
HISTORY OF THE TRADE UNION LEGISLATION
AND OF THE TRADE UNION MOVEMENT

§ 1. — Legislation
Owing to a large extent to the exploitation of its valuable colonial
empire, the commercial and financial importance of the Netherlands
dates back to the very beginning of the seventeenth century ; modern
industry, on the other hand, did not begin to make its appearance
there until about 1850.
The evolution of the modern economic system generally dates
from the second half of the nineteenth century, when the first large
factories were established. As the economic transformation of
production became more marked, and the herding together of the
workers in large numbers proceeded, the nature of the relations
between the management of an undertaking and labour underwent
radical alterations ; in response to this new necessity, the first trade
unions were formed towards the end of the 'sixties.
Somewhat earlier, but not more than twenty years previous to
the formation of the new unions, some workers' associations had
certainly been in existence, but the objects of these had not so far
been the defence of their members in their capacity of wage earners,
nor the improvement of their conditions of labour. These associations were simply friendly societies for sick benefits, associations
principally existing for recreational purposes or still tentative efforts
towards consumers' co-operatives. Öf those efforts the most
important were those originated by the diamond workers and the
printers ; it was these trades also which were the first to take the

286

FREEDOM OF ASSOCIATION

initiative in t h e trade union movement. R a t h e r better educated than
t h e other workers, and, moreover, concentrated in large towns (e.g.
A m s t e r d a m ) , they were t h e first, to react against t h e very hard conditions of life to which t h e workers were subjected at t h a t time, when
an almost p e r m a n e n t condition of pauperism prevailed among a class
of t h e population, t h e physical development of which was impeded
and its intellectual culture practically nil, a n d w h e n t h e employer
maintained with h i s workmen, w h o were completely subject to h i m ,
relations of a patriarchal n a t u r e .
A t t h e very outset, t h e trade unions found their n u m b e r s increasi n g rapidly. T h e rise in t h e cost of living which took place at. that
time was certainly not unrelated t o this increase. I n their earlier
days t h e unions, however, remained remarkably conservative. T h e y
confined themselves t o presenting requests to t h e masters, holding
certain public meetings, at which t h e latter were sometimes present,
and t o t h e appeal t o public opinion. A concerted withdrawal of labour
was a weapon which hardly entered into their calculations. T h e
first defensive strike took place in 1869 ; it was still, however, an
isolated phenomenon. Several years h a d still to elapse before this
mode of action became general.
I t was not u n t i l t h e e n d of t h e nineteenth century t h a t t h e trade
union movement, which h a d been gaining g r o u n d inch by inch,
became really powerful *.
T h e first trade unions were confronted by legislation in regard
to associations of a very liberal character. B u t there were still some
restrictions on t h e right of combination, arising from sections 414,
415, a n d 416 of t h e F r e n c h Penal Code, which h a d remained in force
in t h e N e t h e r l a n d s since 1811.
R I G H T OF ASSOCIATION

I n t h e course of t h e first half of t h e nineteenth century t h e right
of association h a d been restricted b y section 291 2 of t h e F r e n c h
P e n a l Code, which read as follows :
1

1894.
eeuw,

B. BIJMHOLT : Geschiedenis der arbeidersbeweging in Nederland,
H. SMITS, De Nederlandsche arbeidersbeweging in de negentiende
TQ02. ROLAND H O L S T and H. V A N DER SCHALK : Kapitaal

arbeid in Nederland, 1902. D. HUDIG, Jr. : De vakbeweging in Nederland, 1866-1878, Diss., 1904. I. J. BRUGMANS : De arbeidende klasse in
Nederland in de 19o eeuw (1813-1870), Diss., 1925.
a
In France t h e penalties under this section were made more severe
in 1834 ; it wa's itself repealed in 1901.

THE NETHERLANDS

No association of more than twenty persons, the object of which is to
meet every day, or on certain specified days, to deal with religious,
literary, political, or other questions, may be formed without the consent
of the Government, and such association must conform to the conditions
which it may please the public authority to impose upon it.
In the number of persons mentioned in the present section, such
persons as may be domiciled in the house in which the association holds
its meetings are not included.
These provisions were not applied with severity. All associations
were tolerated, whether or not they h a d obtained, or even applied
for the necessary authorisation. T h e only association which w a s
proscribed was of a religious character (the Remonstranten),
and this
action did not fail to provoke lively indignation.
At t h e time, however, w h e n t h e first trade unions were founded,
these restrictions on t h e right of association had disappeared. I n
point of fact, apart from t h e right of assembly, which w a s t h e subject
of special treatment, t h e Constitution of 1848 formally recognised t h e
right of association. I t was left in t h e hands of t h e Legislature to
work out t h e method of application of this right ; t h e Legislature
could even introduce certain limitations. I n t h e framing of t h e A c t
of 22 April 1855 (Staatsblad, N o . 3 2 ) , in which t h e application w a s
prescribed, a very liberal spirit was shown. T h i s A c t is still i n
force. W i t h o u t going into details in regard to this legislation, t o
which we shall have t o r e t u r n later, it should be mentioned a t this
point that it covers all types of associations, including trade unions,
and that it guarantees liberty for the formation of all associations not
liable t o disturb the. public peace. Section 291 of t h e Penal Code w a s
repealed *.
R I G H T T O COMBINE

W i t h regard to the right to combine — i.e. of concerted action of
a certain number of wage earners or employers for t h e defence of their
rights or of their economic interests, without necessarily constituting
a strike or a lockout — sections 414, 415, and 416 of the F r e n c h Penal
Code applied to these.
Section 414 repressed employers' combinations. I t punished by
imprisonment for terms of six days t o one m o n t h , and by fines of

C. J. VAN N I S P E N TOT PANNERDEN : Het regt van vereeniging

de burgerlijke regtsbevoegdheid
van vereenigingen als regtspersonen
beschouwd, 1853. J. R. BOERLAGE : De rechtstoestand der vereenigingen
in het Nederlandsche Publiekrecht, Diss., 1884, N. A. M. VAN A K E N :
Verboden vereenigingen, Diss., 1895.

288

FREEDOM OF ASSOCIATION

200 to 3,000 francs, such combinations as had the object of forcing
down wages unjustly and abusively, if the agreement made were
subsequently put into effect.
Section 415 prohibited combinations of workers. It punished by
imprisonment for terms varying between one and three months all
attempts made or action taken to prevent work being done in any
workshop, to prevent persons coming to or remaining in it before or
after certain hours, and in general to prevent, suspend or increase the
cost of work. The leaders and promoters were to be punished by
imprisonment for terms varying between two and five years. This
was a prohibition of striking, whether organised by trade unions or
not.
It is not without value to point out how different was the degree
of repression applied t.o employers' and to workers' combinations.
Section 416, finally, dealt with a possible mode of action, which
it condemned only if carried on by workers. This section ran as
follows :
The penalty attached to the offences under the preceding paragraph
shall also be inflicted, according to the same distinctions, on workers who
have set up fines, prohibitions, interdictions or any other regulations
under the title of " damnations ", or under any other category whatsoever,
directed either against the managers of workshops or master workmen,
or against their fellow-workmen. In the case of the present and of that
of the preceding section, the leaders and principal instigators of the
offences shall, after the expiration of their sentences, be placed under
the supervision of the high police foi a period of not less than two years
and not more than five years *.
The severely repressive measures provided in these sections were
not put into force. Section 414 was never applied and section 415 very
rarely. The application of the latter gave rise between 1850 and 1870
to no more than 23 prosecutions against 126 persons, of whom 75
were found guilty. The greater number of the accused persons
againts whom sentence was pronounced had, noreover, been found
guilty not merely of the offence of combination, but also, for instance,
of assault or violence falling under the ordinary law of the land.
In the greater number of cases of simple strikes no prosecution
supervened. In the course of the same period there were only four
cases of strikes which led to prosecutions in which section 41s only
could be cited. These were, moreover, non-concerted stoppages of
work, and the trade unions were not implicated in any way. The
1

See under " France ", pp. 87 et seq.

THB NETHERLANDS

289

most severe sentence pronounced was that inflicted in 1869 on an
individual considered to be the principal leader of a strike of railwaymen ; this sentence was destined to lead to the repeal of sections
414 to 416 of the Penal Code \
T h e y were replaced by the Act of 12 April 1872
(Staatsblad,
No. 24) drafted by the Liberal P a r t y of the period. T h e text of this
Act was as under :
1. Any person who interferes or attempts to interfere with the free
exercise by any other person of his labour or his industry shall be liable
to the penalty of :
imprisonment for a term of not less than two months or more than
two years and a fine of not less than 25 and not more than 500
florins, together or separately, if violence has been used or if
tools or plant have been rendered unusable, taken away or
damaged, if actionable threats have been employed or fraudulent
action entertained ;
imprisonment for a term of not less than six days and not more than
three months and a fine of not less than 8 and not more than
200 florins together or separately, if disorderly conduct or participation in riotous assemblies has taken place, ulways provided
that the law would not prescribe penalties of a severer nature for
the offence mentioned in the preceding paragraphs.
T h i s was the recognition of the right to strike. Combination for
the withdrawal of labour was thenceforward lawful, but the right to
work was assured to those who desired to avail themselves of it.
Assault or violence of any kind were severely repressed. I t is to be
noted that internal conditions hardly necessitated the introduction of
such laws, in which the influence of legislation in other countries is
plainly to be seen. I n point of fact there was practically no change
in the situation 2.
T h e Act of 1872 was repealed in 1886, w h e n a new Penal Code
for the country was promulgated [section 3 (c) ] , Act of 15 April 1866
(Staatsblad,
N o . 64). T h e general provisions of sections 141, 284,

1
J. C. J. VAN DER SCHALK : Art. 414 en 413 van den Code pénal
beschoirjjd in verband met de théorie van het loon, Diss., 1853. S. VAN
HouTEN : De regtstoestand der werklieden in Nederland, 1870. J. G.
GRATAMA (Wzn.) : Het recht van vereeniging en vergadering, Diss.,
1890. I. H. MoNNiK : Bescherming van arbeidswilligen in de artikelen
264 en 426-bis, Wetboek van Strafrecht, Diss., 1907. BRUGMANS : op. cit.,
pp. 258 et seq.
- MoNNiK, op. cit., pp. 62 et seq.

Freedom of Association

300

FREEDOM OF ASSOCIATION

and 350 of this Act were thenceforward the basis for the repression
of possible disorders \
We see then that at the end of the nineteenth century neither the
trade unions nor their methods of action were subject to differential
legislation. This situation was to undergo a change as the result of
the railway strike which occurred in 1903.
The railwaymen ceased work in sympathy with the strikers in
the docks, but not without serious grievances. The strike was a
success, but it gave the pretext, not long afterwards, to a Conservative
Government to propose the insertion in the Penal Code of a clause
prohibiting the common withdrawal of their labour by railwaymen.
By way of protest, a further strike was called, to be followed shortly
by an attempt at a general strike of a purely political character. The
movement did not spread, and was given up a few days later for
want of support. This meant a defeat. The Railways Acts (Staatsblad, No. 101) voted on 11 April, were really of a more conciliatory
character than the original drafts ; nevertheless the " left wing "
workers continue to refer to them as " the coercive Acts of 1903 ".
These Acts, amending and supplementing certain of the provisions of the Penal Code, had either a general scope of application or
referred to special categories of workers. We shall have to pay
further attention to them later on 2 . Since their adoption, no other
legal measures have been placed on the Statute Book in the Netherlands that directly affect freedom of combination for trade union
purposes.

1
The following is the text of these sections :
" 141. Those who publicly and by concerted action exercise violence
against persons or goods shall be punished by imprisonment for a term
not exceeding four years and six months, " etc.
" 284. The penalty of imprisonment for a term not exceeding nine
months or of a fine not exceeding 300 florins shall be inflicted on :
" (1) whosoever unlawfully compels another person, by violence or
by threats of violence directed against such person or against a
third party, to perform, to refrain from performing, or to be
. accessory to any act. . . . "
" 350. Any person who voluntarily and unlawfully destroys,
damages, puts out of use, or makes away with any object belonging,
wholly or partly, to another person shall be punished by a term of
imprisonment not exceeding two years, or by a fine not exceeding 300
florins, " etc. •
2
See Chapter III, § 2, " Restrictions under the Criminal Law ",
p. 319. where the text of the new articles is reproduced.

THE NETHERLANDS

2yl

§ 2. — Existing Trade Combinations
While all subject to the provisions of the legislation concerning
associations, the trade combinations existing in the Netherlands
consist of a number of fairly clearly marked differential types.
The workers' trade unions in particular differ among themselves
according to their political and religious orientations. It is this fact
which explains the existence of seven national. trade union centres,
of which the two principal are : the Netherlands Federation of Trade
Unions (N.y.V.) and the Roman Catholic Workers' Federation (see
table, page 292).
In addition to the " trade union centres " there are also trades
councils. Both aggregations are formed of local and of national
unions. These latter are of two types: those the members of which
are distributed throughout the various towns and country districts
of the Kingdom without forming local branches, and those where
the members in such towns or districts are divided into local branches
possessing a greater or smaller degree of independence.
Some of the unions organise workers in private enterprises, others
the members of the administrative or technical staffs of these
enterprises, others civil servants or t.he employees of the public
services, and others again — and this is a more remarkable fact —
soldiers and police officers.
On the employers' side there are also various federative bodies
The influence of political and religious orientations is here less
marked than in the case of the workers. The greater number of
employers' associations contain members of all shades of opinion ;
there are, however, a certain number of important Catholic organisations and some Protestant associations of smaller dimensions. All
these organisations are much more ready to collaborate with one
another than are various trade union centres. Certain complications
do nevertheless arise, these having their origin in the very nature of
these groupings ; the employers have some difficulty in maintaining
the distinction between the advancement of their commercial
interests and the representation of their trade interests in relation to
the State or to the workers.
At the present moment the most important "neutral " central
organisation (that is, without political or religious bias) devoted to
social questions and those of commercial economics, is the Federation
of Dutch Employers. Side by side with this we find the Central

FREEDOM OF ASSOCIATION

292

Council of Employers' Unions for labour Questions, another neutral
federation of employers' associations principally concerned with the
defence of their interests as employers against the claims of the
workers. The General Association of Catholic Employers and the
Roman Catholic Federation of Employers' Associations pursue similar
objects.
T R A D E UNION STATISTICS

In the following table there will be found some figures relating
to the number of workers' trade unions in 1926, and their distribution
between the various central organisations of wage earners '.

Name of the national
trade union centre

Date of
founding

Number of
local unions
or of
Number of Percentage
branches of members on of all trade
union
national
1 Jan. 1920
members
unions
affiliated on
1 Jan. 1936

National Labour Secretariat
. . . .

Sept 1S93

149

13,615

2.76

Netherlands
Federation of Trade Unions

1 Jan.

1906

2,140

190,179

38.54

Netherlands
Federation of
Christian
Trade Unions
. .

1 July

1909

1.197

48,327

9-79

Roman Catholic Workers' Federation . .

18 July

1909

I,8o8

90,475

18.33

Netherlands
General
Trade Union Federation

2 June

1912

236

13.156

2.67

Netherlands
Federation of Syndicalist
Trade Unions
. .

24 June

1923

116

6,221

I.26

Federation
manual
unions

of
nonworkers'

!
15 March 1924

191

16,291

3-30

Total
Not affiliated to a national centre

5.837
2,392

378,264
115,246

23-35

8,229

493,5!«

100.00

76.65

1
The figures in the table have been taken from the Trade Union
Statistics, The Hague, 1 Jan. 1926, p. 284.

CHAPTER IX
THE LEGAL STANDING OF TRADE COMBINATIONS

§ 1. — The individual Right of Association
The guarantee of the right of association is laid down in Article
9 of the actual Constitution, which was Article 8 in the original
Constitution of 1848.
The right of the inhabitants to association and assembly is hereby
recognised.
The law shall regulate and limit the exercise of this right in the
interests of the public peace.
Nevertheless, if the right of association and of assembly belongs
to the category generally entitled " fundamental rights " or
" guarantees of individual liberty ", of the same order as the freedom
of the Press, religious liberty, etc., no general agreement exists as
to the real character in jurisprudence of these rights ; this point is
not without importance from the point of view of the prohibitions
against joining a trade union which are sometimes liable to be made,
either by public authorities in their capacity as employers, or by
employers of Jabour in general.
Some hold that these rights may be restricted or withdrawn by
the public authorities on whom certain citizens occupying a particular
legal position are dependent. According to this thesis civil servants,
for instance, having freely accepted a position entailing certain rights
and duties should be prepared to find themselves denied the privilege
of writing in the papers or of joining a trade union a .
Others, on the contrary, will not accord to the public authorities
1

T. J. BUYS : De grondwet,

STRUYCKEN

1883, 1, pp. 60 et seq.

A. A. H.

: Het Staatsrecht van het koninkrijk der Niederlanden, 1915,

I, pp. 150 et seq. Cf. J. A. VAN DER STOK : De rechtstoestand der ge-

meenteambtenaren, Diss., 1919, pp. 210 et seq.

FREKDOM OF ASSOCIATION

194

the power of attacking the rights of any citizen deriving from the
Constitution, whatever be their official status. They will not
recognise the possibility of such an exception, unless it can be derived
from the very text which confers the rights, by a reasonable interpretation of its contents '. This is an opinion which has been actually
widely held in the Netherlands. For a long time civil servants and
local government officials have enjoyed full liberty to contribute to
the Press ; the executive power does not attempt to attack their
freedom of association in any way, and neither do the provincial
Governments nor.the municipalities. There are even, as mentioned
above, trade unions of soldiers and sailors, in spite of a certain
amount of governmental opposition which is occasionally heard on
this point. This opposition has provided various difficulties for the
Federation of Naval Seamen ; trade union activities were practically
excluded on board ship as being contrary to discipline, the maintenance of which was the duty of the executive power, in virtue of the
Constitution, which confers the supreme command of the army and
navy upon the Sovereign (Article 57). At the present moment,
relations between the Federation and the Admiralty have been
considerably improved.
Thus, there is in fact no limitation arising out of the Constitution
or out of any other Acts or regulations having the effect of restricting
freedom of association 2 .
Neither can the criminal law in the Netherlands intervene to
uphold a clause in a labour contract preventing employed persons
from joining a trade union, any more than it would be possible for a
worker to claim protection of the criminal law, if he acted in
defiance of such a clause, which economic necessity may force him
to accept.
It may be asked whether, from the point of view of civil law,
such a clause is lawful. Does it introduce an obligation which, if
not carried out, can justify an action for damages ? The first question which arises is the following : is not this clause contrary to the

J. HKEMSKKRK (AZN) : De praktijk onzer grondwet, 1881, p. 20.
R. KRANENBURG : Het Nederlandsche Staatsrecht, II, 2nd ed. 1925,
pp. 338 et seq. Cf. H. KRABBE : Hand. Ned. jur. Ver., 1897, pp. 94 et
seq. E. FOKKER : ibid., pp. 226, et seq.
3
On the right to strike of railway officials and other persons in the
service of the railways, see p. 322.

THB NETHBHX,ANDS

295

liberties guaranteed by the Constitution as set forth above? ' The
opinion generally held is that a contractual limitation is perfectly
lawful. In the second place, it may be asked whether a clause of the
kind in question would not be of the nature of a stipulation contra
bonos mores. The principle of civil law which is actually applied
in this instance is that " an agreement entered into in a lawful manner
is binding at law on those by whom it has been made " (section 1374
of the Civil Code). But; for such a clause to be lawful it is further
necessary that it should deal with a lawful subject and that the
agreement entered into should be contrary neither to public morals
nor to the public peace (section 1356, 40, and 1373 of the Civil Code;
section 14 of the Act of 1829, determining the general conditions
governing legislation in the Kingdom). The question has never been
brought into court ; it appears moreover that difficulty would be
experienced in pronouncing an affirmative judgment on it 2 .
Thus the employed person does not appear to be covered, from
this point of view, by the civil law any more than by the criminal
law. It should, however, be noted that in practice a clause contaming a prohibition of trade union membership is hardly ever found in
a labour contract, and if an employer does sometimes threaten an
employee with dismissal, because he suspects him of belonging to
such and such an organisation, or of intending to become a member
of it, it does not appear that it would be possible to restrain him from
taking such action, if he gave the proper amount of notice, which is
a very short period in the case of most workers.
At the opposite pole from prohibition of membership we find
obligatory membership, or the closed shop, such a clause sometimes
forming part of a collective agreement. It is to be found very
generally in the printing trades and in the diamond industry ; in some
other trades it is met with only exceptionally. The sanctions attached
are principally of an economic nature : particularly the threat of
deprivation of labour or of employment.
Obligatory membersnip, enforced by moral pressure, is solely
a question of civil law in the domain of persons. No provision of the
1

See notes, p. 293 and 294 ; see also the arguments between :

J. A. LEVY and

A. P. Th. EIJSSEL, W.,

7514 et seq. T. SYLENGA : De

grondwet
van 1SS7 toegelicht, 6th ed., 1921, pp. 59-60.
3
On the stipulation contra bones mores, see C. J. J. M. PETIT :
Overeenkomsten in strijd met de goede zeden, Diss. 1920. J. Ph. SOYIJNG. :
Inleiding tot het burgerlijk recht, II, 1923, pp. 86 et seq.

206

FREEDOM OF ASSOCIATION

civil or criminal law protects unorganised workers against the refusal
of employment, since the " right to work " in this sense is not
recognised in practical legislation. " Closed shop " clauses appearing
in a collective agreement can therefore be lawfully carried out by
means of the sanctions attached. No judgment has ever had to be
pronounced by a court of law on this point, recourse to the courts
being, in any case, avoided wherever possible ; and although rivalries
between trade unions of differing orientations may lead to friction,
where one such body has succeeded in obtaining in a collective
contract a monopoly clause closing the shop to all but its own
members, no legal difficulty has ever yet arisen in this respect 1.
From the point of view of the civil law, the conditions governing
valid membership of a trade union do not differ from those which
may be required for the accomplishment of any other act or deed in
the sense of the civil law. Any person who is in the enjoyment of
civil rights also enjoys the capacity to contract, and is thus capable
of undertaking the contractual obligations which allow him to become
a member of a trade union. This means that those persons not having
such capacity run the risk of finding their agreement declared to be
null and void. Minors, for instance, (in the Netherlands persons are
minors up to the age of twenty-one) may only enter into any contract
if duly represented and authorised by their parents or guardians.
Married women may only contract with the explicit concurrence of
their husbands in the act, or with their consent in writing. The possible exceptions to the rule have no relation to the exercise of the
right to combine. It should nevertheless be noted that no claims
have ever been made for the cancelling of contracts of membership
made by a minor or a married woman, on the part of interested
persons, parents or husbands. The social fact of trade union membership certainly seems to be outside the scope of the civil law. Trade
unions do not hesitate to set their age limit for membership at
eighteen years ; they even admit as associate members persons who
have not reached this age, and the authorisation of parents or
guardians is never made obligatory.

' For the B.ill to regulate the position in civil law of collective
agreements, which, in section i, subsection 3, prohibits such a monopoly
clause, see infra Chapter III, § i, p. 309.

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297

§ 2. — T h e Position of the Trade Combinations
CONSTITUTION

T h e Dutch trade combinations are subject to t h e same legal
conditions as associations in general. There is no distinction in the
eyes of the law between trade unions and a society having for its
object the provision of recreation for its members, the advancement
of art or science, political activities or charity. All these are private
voluntary aggregations. F u r t h e r , the right of association is, as we
have seen, expressly recognised by the Constitution, which provides
at the same time for the regulation and limitation of its exercise in
the interests of the public peace.
T h e first statutory measure to this end which requires mention
is that which allowed associations, under certain conditions, t o be
" recognised " a n d invested with legal personality ; this w a s t h e
Act of 22 April 1855, and t h e following are the relevant sections :
5. No association other than those founded by the Constitution or
by other Acts of Parliament can exercise legal personality unless in virtue
of an Act of Parliament or of recognition by Ourselves.
All associations constituted for an indeterminate period, or for a period
exceeding thirty years, and desiring to be invested with legal personality,
require recognition by Act of Parliament.
Such associations as are constituted for a period of less than thirty
years may be recognised by Ourselves.
6. Recognition shall take place by means of approval of the rules
or regulations of the association.
The rules or regulations shall state the objects, principles, sphere
of activity and the mode of organisation in general of the association.
7. Recognition will only be refused by Us on the ground of the
public interest. Reasons shall be given for the refusal.
8. Any modification or alteration of the rules as approved shall
necessitate further approval.
9. Approved rules, modifications or alterations shall be published
in the " Official Gazette " (Staats Courant).
10. In the case of a breach of the approved rules the public
prosecutor shall have the power to apply to a civil judge for a declaration
of the forfeiture by the association of its legal personality.
When giving judgment of forfeiture, the judge shall be empowered,
without prejudice to subsequent appeal or recourse to the High Court
of Appeal, provisionally to deprive the association of the capacity of tak
ing civil action.
The liquidation of the affairs of the association which has been
declared to have forfeited its legal personality, shall take place under
the supervision of the judge who has pronounced judgment of forfeiture.
in the manner and in accordance with the formalities proper to the
administration of unclaimed inheritances.
11. After the sale of the real and personal property of the association by the receiver appointed, and the settlement by him of its debts,
any balance remaining shall be divided between those persons who were
members of the association at the time when the judgment of forfeiture

ÏO8

FREEDOM OF ASSOCIATION

was pronounced, or between their heirs and assigns, in proportion to the
shares held by them in the association.
12. Associations not constituted or recognised in conformity with
the present law cannot as such take civil action. The agreements
concluded in their name and the property acquired by them shall be
regarded, from the point of view of the State and of any third party, as
devolving on the persons by whom the contract has been concluded, or
the property acquired, notwithstanding that they may have been
mentioned in the agreement solely as the agents or administrators of the
association.
13. The mutual position of members of associations which do not
enjoy civil personality shall be determined according to the regulations
established by themselves, and to the general rules of civil law.
The provisions of sections 1700 and 1701 of the Civil Code shall
continue to hold good for these associations, notwithstanding that they
be not recognised as legal persons.
A n u m b e r of trade unions when first founded, not wishing to
have the eye of the Minister of Justice upon t h e m , a n d not considering it compatible with their republican sentiments to apply for approval by Royal Decree, refrained from applying for recognition.
H a v i n g nowadays realised the advantages of civil personality and
also wishing to receive the grants for unemployment insurance, they
have mostly abandoned that attitude. T h e royal sanction is moreover attained with great ease.
T h e requirement of the Act of 1855, that, an association constituted for a period exceeding t h i r t y years, and desiring to be invested
with civil personality, should be recognised by a n Act of Parliament,
while a Royal Decree suffices for shorter periods, has led to most of
the unions being constituted for twenty-nine years a n d eleven m o n t h s ,
and only applying for recognition by Decree, which application they
renew from time to time as necessary. T h e royal sanction, which is
a relatively simple formality, is not of t h e n a t u r e of a favour, and
does not imply any sympathy on the part of the Government, with
the union to which it is given. Moreover, it cannot b e refused except
on the ground of the public interest (section 7) and reasons must
be given for a refusal. Certainly the term " public interest " is
capable of various interpretations, but in point of fact authorisation
has never been refused to a trade union.
Recognition is given by approval of the rules and regulations
which have to be produced in evtenso and which have to state ( in
accordance w i t h the terms of the Act, the objects, principles, sphere
of activity, and mode of organisation of the association.
In practice the Minister of Justice also requires that the rules
should contain the name of the association, its permanent address,
and the presumable period of its duration. I t s objects m u s t be

THE NETHBRIvANDä

299

clearly set forth and may be of many kinds. The terms " by legal
methods " are required in the description of the " methods of
achievement " ; this expression is supplemented in the case of the
soldiers' unions by the words " while maintaining discipline ". The
rules must also contain a clear definition of the qualifications for
membership, also of the mode of obtaining or losing membership,
financial clauses, clauses regarding management, alterations of rules,
and dissolution of the association.
The dissolution of an association is subject to the provisions of
section 1702 of the Civil Code, which guarantees to the creditors of
the association the first call on the property of the association, only
the balance of its effects to be divided among the last remaining
members. If an association should need to have bye-laws, the rules
must stipulate that such bye-laws shall not be contrary to them.
Otherwise associations, including trade unions, remain perfectly free
to settle all these points as they wish. Legal personality is granted
by Royal Decree and the rules are published in the supplement to the
" Dutch Official Gazette " (Staats Courant) 1.
If a federation of associations applies for legal personality, the
Minister of Justice makes it a condition for the approval of its rules
that it undertakes to admit as member associations only such as are
already invested with legal personality. As to the branches of the
latter, which are simply administrative subdivisions, they have no
need to apply for such personality ; but they do not, on the other
hand, enjoy it.
Any action taken to deprive an association of its legal personality
is initiated by the Public Prosecutor. A civil process seems to be
applicable, in spite of some divergent opinions and judgments.
OBJECTS

While the citizens of the Netherlands enjoy the right, guaranteed
by the Constitution, of forming associations, it is not lawful to
constitute them for every kind of object. The legislation passed in
accordance with this clause of the Constitution introduced certain
limitations to the right of association. The trade unions appear
never to have suffered much hindrance from these, principally
' A. E. BLES : Vereenigingen en naamloose vennootschappen en hare
behandeling aan het Departement van fustitie, 5th ed., 1921.

300

FREEDOM OF ASSOCIATION

because there is n o machinery in existence for putting the restrictions into effect.
Article i o of the Constitution could have been interpreted to
allow of the setting u p of such machinery, but the framers of the Act
proceeded from another point of view ; they began b y stating in the
first section of the Act of 22 April 1855 that :
No authorisation is required for the founding of an association.
T h e y then went on to state that :
Section 2. Associations contrary to the public peace are prohibited.
Section 3. Any association shall be regarded as being contrary to
the public peace if its object is :
(a) disobedience to or breach of the law of the land or of regulations
issued in accordance therewith ;
(b) attacking or corrupting morals ;
(c) interfering with the exercise of the rights of any persons
whatsoever.
T h e sanctions attached to the foregoing provisions are to be
found in section 140 of t h e Penal Code :
Participation in an association which exists for the commission of
criminal acts shall be punished by imprisonment for a term not exceeding five years. Participation in any other association prohibited by law
shall be punished by imprisonment for a term not exceeding six months
or by a fine not exceeding three hundred florins.
In the case of the founders or officers, these penalties may be
increased by one-third.
I t is within the province of the criminal courts to apply the
restrictive stipulations of the Act of 1855 ; b u t only the individual
members of an association are liable to prosecution ; no penalty can
be inflicted on the association a n d there is no authority competent
to dissolve it.
T h e wording of the above sections is capable of interpretation :
this is actually of a liberal character. T h e H i g h Court has nevertheless laid down that the object of an association may be proved to
be unlawful not only according to its rules or its principles, b u t also
on the basis of its acts *. H e r e should be understood its acts as
a whole ; a single and incidental unlawful action or expression of
opinion would not be sufficient to justify the application of t h e Act.
I t should be noted that in the Netherlands, in contradistinction to the
course of affairs often encountered in other countries, no a t t e m p t has

High Court (Hooge Raad), 12 Jan. 1909, W. 8797.

•

THE NETHERLANDS

3OI

ever been m a d e to accuse the trade union movement of attacking
property rights, and t h u s of pursuing a n unlawful object in the sense
of section 3 of the Act of 1855. T h e prevailing conception of property
rights in the Netherlands would, in any case, provide very poor
authorisation for an a t t e m p t of that nature.
T h u s the trade unions have the free choice of their objects, which
may be of a social, economic, or political character, a n d may be
uniform or multiform. In general the clause in the rules relating to
t h e objects leaves the door open to the pursuit of ali kinds of activities.
H e r e are two examples : the rules of t h e Dutch F a c t o r y - W o r k e r s '
Union state t h a t :
The object of the association shall be to further, by the help of a
powerful association, the moral and material interests of its members
and the improvement of their conditions of life.
Those of t h e Roman Catholic Association of Shop Assistants and
Clerks of St. F r a n c i s of Assisi state its object to be as under :
The object of the association shall be to improve and raise the social
position of clerks and shop assistants both from the moral and from the
material point of view, in conformity with the principles and precepts
of the Catholic religion.
T h e r e have been only two cases of associations having any connection — however distant — with trade union policy, and fairly
closely related with social policy, which have given rise to criminal
prosecutions based on the articles quoted above.
W h e n the first took place Socialism was only m a k i n g its first
appearance in the Netherlands, and the Socialist Federation had
stated in its programme t h a t its object was the overthrow of the social order by any methods lawful or unlawful, peaceful or violent ;
its leaders were sentenced to a fine under the terms of section 140,
subsection 2, of the Penal Code, and section 3, subsection 1, of the
Act of 1855. Some years later, in 1908, the leaders of the Amsterdam
branch of the International Anti-Militarist League of the Netherlands
were also prosecuted : they were found guilty, b u t acquitted on
appeal *.

L. J. RIETBERG : Het recht van vcreeniging en vergadering in het
Nederlandsche staatsrecht, Diss., 1893, pp. 45 et seq. VAN AKEN : op. cit.,
pp. 61 et seq. T. J. NOYON : Het wetboek van strafrecht, II, 3rd ed.,
1914, pp. 153-158. D. SIMONS : Leerboek van het Nederlandsche Strafrecht, II, 4th ed., 1923, Nos. 557-558-

302

FREEDOM OF ASSOCIATION

TKADE UNIONISM IN OPERATION

In studying the conditions under which trade unionism can
function, we must consider both the organisation of its internal
affairs and the system of supervision to which it is subjected.
Internal

Organisation

General discipline, management, conditions of membership. —
As we have seen, there is no enactment in the Netherlands which
regulates trade union membership or lays down any conditions of
occupation, nationality, or domicile in regard to it.
The trade unions are thus perfectly free to manage their own
internal affairs. There is nothing to prevent their imposing on applicants for membership such conditions as they consider proper.
They act in this matter as they think fit. Some of them certainly
have their own rules or bye-laws laying down definite qualifications
for admission or conditions governing exclusion. In general applicants have to come before the executive committee, which decides
whether or not to admit them. Membership ceases with death,
resignation, or expulsion.
The courts have never had to intervene in this matter, nor yet
in the still more burning question of demarcation, which has often
given rise to disputes between rival trade unions.
There is really only one case when a trade union had to go into
court in regard to a question of membership. In this instance it was
claimed that the relevant clause in the bye-laws was contrary to the
rules, and was therefore not binding. The High Court (Hooge Raad)
decided that this was only a question of interpretation of the rules,
and that the question did not come, within its jurisdiction 1 .
Penalties. — Breach of the obligations of membership may lay
trade union members open to the penalty of a fine ; this power is
exercised chiefly by employers' associations. The clauses providing
for the payment of fines have often led to legal proceedings where
large sums were concerned. The principal relevant fact is whether
the fine has been inflicted in accordance with the rules and regulations. If so, the fine is recoverable in a court of law 2 .
1
3

High Court (Hooge Raad), n Dec. 1908, W. 8778.
Cf. Court of Appeal (Gerechtshof), Amsterdam, 28 June 1920,

W . 10632, N . J . 21,804 ; C o u r t of A p p e a l , A m s t e r d a m , 6 J a n . 1922, W .
10858, N . J. 23.733.

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SOS

Recourse to the law courts. — T h e rules of almost all the workers' trade unions contain a clause restraining their members from
bringing differences which may arise between them and the trade
union into court, which differences they undertake to bring before
the executive .committee, the general meeting, or some other part of
t h e machinery of government of the trade union. T h e effect of this
clause is doubtful. A n application to the court, which simply a n d
solely ignored it, could not. be received, b u t in theory a n d in legal
practice divergent answers are given to the question of its legal effect.
T h e general opinion is, however, t h a t a decision given by the trade
union in pursuance of a clause of this nature would have to be upheld
by a regular judge if it had been given in good faith, and was not
manifestly erroneous or arbitrary *.
General meeting ; executive
committee.
— T h e competence of
the general meeting — the supreme governing body of the t r a d e union — is limited only by t h e rules. I n the greater n u m b e r of
national trade unions, as t h e result of the size of their m e m b e r s h i p , it
is only delegates from branches who have the right to vote. T h e
ballot of all members is found chiefly among the trade unions of
anarcho-syndicalist sympathies. I n all cases the executive committee,
composed of paid and unpaid members, exercises a great influence.
Dutch law does not lay down a n y conditions for membership of an
executive committee from the point of view either of occupation, of
nationality, of domicile, or of enjoyment of civil rights, t h e D u t c h
Civil Code in any case m a k i n g n o provision for deprivation of civil
rights (Civil Code of 1838, section 4 ) .
A dminis tra tiv e Sup erv ision
T h e law does not provide for any supervision b y the administrative or judicial authorities to be exercised upon the activities of
1
L. VAN PRAAG : " Reehtspraak door anderen dan de van staatswege aangestelde 'rechters of scheidsmannen in verband met arbitrage
en verwante beslissingen van particulieren ", Themis, 1919-1920. C.
ASSER : Handleiding tot de beoefèning van het Nederlandsch
burgerlijk
rechi, Vol. I : " Personenrecht ", rev. by Paul SCHÖLTEN, 5th ed., 1923,
pp. 682 et seq. A. A. VAN RHYN : " De praktijk der bedrijfsrechtspraak ", Sociale Voorzorg, 1923, pp. 470 et seq. High Court, 21 March
1904, W. 8046 (trade union). High Court, 8 April 1910, W. 9010 (cooperative society). Justice of the Peace of the Hague, 7 June 1912, W.
9354 (trade union) — Court of Appeal, The Hague, 1 March 1918, W.
10275 (sports association). Court of Appeal, Amsterdam, 28 June 1920,,
W 10632, N.J. 21804 (employers association).

FREEDOM OF ASSOCIATION

3°4

trade combinations as such or their expenditure. The ordinary law is
all that applies here, and that hardly allows of any preventive
measures. The courts would have, in case of need, to cite the
provisions of the Associations Act of 1855, or those of the Penal
Code, section 140, which we have already mentioned ; repressive
provisions which apply to individual members only. Compulsory
dissolution does not seem to be a possibility, even when judgment of
forfeiture of legal personality by an association has been given.
The only measure requiring mention in this connection is that
dealing with the supervision to which the employment insurance
sections of trade unions have to submit in order to qualify for the
Government grants.
Unemployment insurance in the Netherlands was originally the
work of the trade unions. According to the terms of the Decree
regarding unemployment (Royal Decree of 2 December 1916 : Staaisblad, No. 522), the State, in collaboration with the municipalities,
was empowered to make grants to the unemployment funds of approved associations. A trade union which desired to receive these
grants had to obtain the approval of the regulation of its
unemployment fund by the Minister of Labour. The unemployment insurance section had to comply with the instructions
given by the Minister in the matter of its management and the
expenditure of its funds ; it was placed under the supervision of the
municipality so far as its local activities were concerned. As a matter
of fact the State inspects its accounts, while the municipalities keep
a check on the legitimacy of the benefits paid. This supervision is,
however, exercised solely in respect of the unemployment insurance
section of the trade union, and not.of the trade union itself, and it
exists only in those cases in which an unemployment section applies
for a Government grant, as do the greater number of the benefit
sections of the trade unions of their own free will, there being no
compulsion \
In the matter of the right of assembly, the principle laid down
in the constitution has been interpreted by the following sections of
the Act of 1855 :
Section 18. Public meetings, with general discussion, are not
allowed to be held in the open air unless permission has been granted by
1

For unemployment insurance, see Chapter III, § 1, " Participation
of the trade combinations in the application of Legislation ", pp. 316
et seq.

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305

the mayor of the commune five days in advance. Our Commissioner
in the provinces is empowered to cancel such permission, or where it
has been refused by the mayor of the commune, to grant it to the interested parties on request.
Section 19. The officers of the general and local police have the
free right of entry into all meetings held indoors to which the public
is admitted.
Should entry be refused, the police have the right, with the
assistance of the mayor of the commune, to force an entry.
Section 22. Every assembly in which a breach of the peace is
committed, or the provisions of this Act are contravened, shall be immediately broken up by the police.
The sanction attached to the last-mentioned section is to be
found in the terms of section 184 of the Penal Code.
Any person who deliberately fails to comply with an order or a
demand made in the execution of the law by an official whose duty it is
to carry out specific supervision, or of an official whose duty it is, or
who is empowered, to investigate or examine into punishable actions,
together with any person who deliberately prevents, hinders or obstructs
the performance by any official of his duties in the execution of the law,
shall be punished by imprisonment for a term not exceeding three
months, or a fine not exceeding 600 florins.
It used to happen in times past that the police dispersed the
participants in a disorderly meeting of strikers, but at the present
time these enactments no longer concern the trade unions.
DISSOLUTION

The dissolution of a trade combination in the Netherlands does
not differ from that of any other association. It can only be a
voluntary process.
A decision taken by that part of the machinery of government
entitled by the rules to take it can always voluntarily put an end to
an association. This power is generally conferred on the general
meeting or on a delegate conference, whose decision has to be
confirmed by a ballot vote of all the members, with a stated majority.
As mentioned above, in the case of a recognised association the
application of section 1702 of the Civil Code in the case of dissolution
has to be provided for in its rules *.
As we have already seen, members of an unlawful association can
be prosecuted, and the existence of the association is thereby
endangered. No provision is, however, made for legal dissolution.
Similarly, when an association loses its legal personality at the

See above, Chapter II, § 2, "Constitution ", p. 297.

Freedogi of Association

3o6

FREBDOM OF ASSOCIATION

expiration of the period for which this has been granted, it still
continues to exist, but without corporate status.
As has also been pointed out, the courts can, in pursuance of
sections io and n of the Act of 1855, deprive an association of its
legal personality if its objects do not conform with its approved rules.
In practice, these sections have been applied but very rarely. Apart
from some disputes between incomplete executive committees and
individual members in regard to the interpretation to be given to the
objects as defined in their rules, mention may be made of the
deprivation of legal personality inflicted on a bogus benefit club
which was really an illicit gambling den, and also, in 1904, on the
General Federation of the Seamen of the Dutch Navy. The lastnamed association had published in its official journal articles which
were, in the opinion of the court, of a libellous character, and
contrary to tfie rules, in which its object was stated to be to further
the interests of the seamen by the use of lawful and appropriate
methods 1 .
An association which has been deprived of its corporate status
for not having conformed with its approved rules does not, in virtue
of this forfeiture, become an unlawful association. In pursuance of
the law, its effects are liquidated, and the balance distributed among
its members, but (although certain authors maintain the contrary)
the framers of the Act do not appear to have desired that the judgment
should entail dissolution ; that is, at any rate, the generally accepted
opinion 2.
The trade union organisation of the seamen continued to exist
in spite of its having been deprived of legal personality. It later
obtained the royal sanction under a new name, Federation of Naval
Seamen. In the interval it owned property which was held by a
fictitious gymnastic society.

1
2

See the judgments in W. 7841, 8040, 8132.
J. A. VAN HAMEL : " Strafrecht tegen gemeenschappen ", Tijdschrift voor strafrecht, 1905, pp. 163 et seq. H. J. HAMAKER : " De
rechtstoestand eener vereeniging zonder rechtspersoonlijkhëid ", Rechtsg.
Mag., 1908, Verspreide Geschritten, IV, pp. 343 et seq. N. K. F. LAND :
Verklaring van het Burgerlijk Wetboek, I, 2nd ed., rev. by C. W. STAR
BDSMANN, 1914, pp. 797 et seq. G. A. VAN HAMEL 1 Inleiding tot de
Studie van het Nederlandsche Strafrecht, 4th ed., rev. by J. V. VAN
DIJCK, p. 165. Contra ASSEE-SCHOLTEN, op. cit., p. 685.

CHAPTER I I I
POSSIBILITIES AND LIMITS OF TRADE UNION ACTIVITY

§ 1. — Non=Militant Activities
ACTIVITY IN T H E SPHERE OF CIVIL L A W

The fact that an association — and in the matter with which we
are now dealing a trade union is not separable from associations in
general — has been founded, and carries on its existence, does not,
as we have seen, imply that it enjoys legal personality ; but if,
having satisfied the conditions laid down, it has acquired this
corporate status ', it possesses, from the point of view of the civil
law, all the attributes of an adult person (sections 1691 et seq. of the
Civil Code). In the eyes of a third party the members have no
further existence ; all that exists is the corporation, which possesses
rights, and on which obligations devolve. It has the capacity to
acquire and hold and to alienate real and personal property, also to
contract, etc. It is responsible for carrying out any agreement made,
and must suffer the penalties accruing to unlawful action. The acts
committed by its representatives within the limits of their powers
are to be regarded as the acts of the association. It is invested with
the capacity to take legal action '.
Non-recognised associations, thus, do not enjoy legal personality ; they come under the scope of sections 12 and 13 quoted above
of the Act of 1855. That is to say that, in the eyes of a third party,
for instance, only the members of such an association taken individually have any existence, and not the association. The acts of
1
s

See Chapter II, § 2, " Constitution », p. 297.
Commentators on the civil law of the Netherlands, inter alia :

LAND
and STAR BUSMANN, op. cit., 1, 2nd ed., 1914, pp. 754 et seq. SUYLING,
op. cit., I, 1918, pp. 70 et seq.
ASSER-SCHOÎ/TFN. op. cit.. I. 5th ed.,

pp. 666 et seq. Reference is made in these commentators to individual
publications on the subject. Mention may be made of a book in French :
A. BIEBUYK : Le régime ¡égal de ¡a personnification civile en Hollande,
1905-

3o8

FREEDOM OF ASSOCIATION

founding and joining such an association constitute merely contractual relations, having no formal existence for any persons other than
the parties to the contract. The capital put by them into the association remains the property of all the members jointly ; the right to
it enjoyed by each individual .has to be determined by the rules. The
officers of the association are jointly and severally responsible in
relation to a third party for debts incurred by them in this, capacity.
The legal position of associations not enjoying legal personality
is a very controversial matter. All the same, the question has no more
than an abstract interest, since, with the exception of a few small
unions, all trade combinations in the Netherlands are in possession of
legal personality.
T R A D E COMBINATIONS AS PARTIES TO COLLECTIVE AGREEMENTS

Although trade combinations are a relatively new factor in the
social life of the Netherlands, they have already experienced a great
widening of their original sphere of activity, which was limited to
the collective representation of individual interests. Having now
become the mouthpiece of the trade or occupation itself, the trade
combination is officially recognised as such ; thus, an addition
(section 1637«) was made to the Civil Code by the Act of 13 Juli 1907
making new provisions in regard to individual contracts of
employment as follows :
Every stipulation between employer and workman which is contrary
to a collective labour agreement binding on them both shall, on the
application of either of the parties concerned in the agreement, without
the concurrence of the employer himself, be declared null and void.
The term " collective labour agreement " shall be taken to imply
regulations drawn up by one or more employers, or by one or more
employers' associations enjoying legal personality on the ox»*», part, and
one or more workers' associations enjoying legal personality on the other
part, concerning conditions of labour which must be observed in the
conclusion of a contract of employment.
This was for twenty years the only provision to be found in
Dutch legislation in which the collective agreement was dealt with
by name 1 . It is, however, about to become the subject of a special
Act.
1
Legal literature dealt with them, however, to a large extent.
Among the numerous works published, we may mention : LAND, op.

cit.,

2nd

ed.,

rev.

STAR BUSMANN, 1917,

pp.

231

seq.

RiBBius PELLETIER : Leden-contracten, Diss., 1920 (with bibliography).
E. M. MEYERS : De arbeidsovereenkom&t, 3rd ed., 1924, pp. 42 et seq.
(with bibliography of older works).

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3°9

A Bill concerning the regulation of the position in civil law of
collective agreements was passed on 15 June 1927 by the Second
Chamber by 74 votes to 5 ; it is probable that this Bill will become
law very shortly.
In its first section it provides a definition of the expression
" collective agreement ". This is an agreement entered into by one
or more employers or by one or more employers' organisations
enjoying legal personality on the one part and one or more workers'
organisations enjoying legal personality on the other part, and having
as its principal or exclusive object the regulation of conditions of
work. A collective agreement can also deal with conditions concerning piecework or individual contracts of employment.
Section 1 further declares to be null and void any stipulation by
which an employer is obliged to engage exclusively workers of a
certain religious or political opinion, or members of a certain association. This final addition has not the effect of excluding compulsory
trade union membership, but only the compulsion of membership of
a given trade union in cases where there are several unions of differing orientations.
Section 2 states that an association of employers or workers is
only capable of concluding a collective agreement if its rules
specifically confer upon it this capacity.
Section 3 requires that a collective agreement may only be
concluded by written agreement, whether in the form of a legal document or a private deed.
Section 4 stipulates that each organisation which has concluded a
collective agreement must see to it that its members who are affected
by the agreement are put in possession as quickly as possible of the
text of the agreement.
According to the provisions of section 6, an alteration made to
the rules of an association after the conclusion of a collective
agreement shall have no effect on the collective agreement in force
except with the consent of the other parties to the agreement.
Section 7 deals with the date of the coming into force of the
collective agreement, and includes the stipulation that, in default of
any clauses to the contrary in the agreement itself, a collective
agreement shall, from the date on which it takes effect, apply to any
individual agreements already concluded.
Section S provides that every association which has concluded a

310

FREEDOM OF ASSOCIATION

collective agreement is obliged in good faith to do all in its power to
ensure that its members observe the terms of the agreement, but that
the association is only answerable for the actions of its members in
so far as this may be stipulated in the agreement.
Section o provides that all persons who are or become members
of an association having concluded a collective agreement shall be
bound by the same.
Section 10 stipulates that persons who have ceased to be
members of an association remain bound by an agreement concluded
by it during the period for which it is in force, and that any stipulations to the contrary in the rules of an association or in a collective
agreement shall be null and void.
Section n provides that the dissolution of an association shall
have no effect on the rights and obligations arising out of a collective agreement concluded by the said association.
Section 12 contains the important provision that the terms of
an individual contract concluded between an employer and a workman contrary to the conditions of work laid down in the collective
agreement binding on both shall be null and void.
Section 14 makes it obligatory upon an employer, in the absence
of any special provisions in the collective agreement on this subject,
to put into force the conditions of the agreement, even in regard to
workmen not bound by the same.
Section is deals with the question of indemnities. An organisation which has concluded a collective agreement may claim
compensation for loss or injury caused either to itself or to its
members by one of the other contracting parties to the agreement,
or by one of its members, through the breach of the provisions of the
agreement. An organisation may claim compensation not only on
its own account but also on account of its members.
Section 16. In cases in which the loss or injury cannot be
assessed in cash value, the judge shall fix an equitable, sum to ba
paid in compensation.
Section 17. The parties to a collective agreement are at liberty
to include in its provisions stipulations in regard to compensation
other than those contained in sections 15 and 16.
Section 18 provides that no collective agreement may be
concluded for a period exceeding five years.
The remaining sections contain simply provisions regarding

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3II

notice of withdrawal, together with certain transitory provisions,
which are of no general interest l .
According to the legislation in force 2 all the trade combinations
both of employers and of workers are capable of being parties to a
collective agreement regarding labour conditions, there being no
statutory or other restriction on this subject in existence, unless it
is section 1637« of the Civil Code, requiring that they should be
in possession of legal personality. That is not to say that collective
agreements have not sometimes been concluded by trade unions
without corporate status. De facto, these are as effective as the
others, and in law they are not altogether without effect 3 , but some
uncertainty is liable to arise as to the legal consequences which
might be entailed by them. In the matter of the capacity conferred
by the first subsection of section 1637m, it is naturally necessary,
in order that advantage may be taken of this power, that the conditions laid down in the second subsection shall have been fulfilled.
What is, then, the bearing of a collective agreement on individual contracts of employment > It has been seen that, by the terms
of the Act, each of the interested parties to the collective agreement
can, with the exception of the individual employer, bring about the
annulment of any private stipulation contrary to the terms of the
agreement. On the other hand, the association itself, as an
interested party, can take such measures of internal discipline in the
case of the breach of an agreement by its members as are provided
for in the conditions of membership.
Finally, in so far as the collective agreement goes further in its
provisions than the individual agreements concluded by members,
it supplements these in the case of the persons bound by it *.
1
Parliamentary Papers, Session 1926-1927, No. 166. Nadere regeling
van de Collectieve Arbeidsovereenkomst. Koninklijke Boodschap nr. 1,
Ontwerp van wet nr. 2, Memorie van toelichting nr. 3, verslag nr. 4,
Gewijzigd ontwerp van wet nr. 5.
Discussion in Second Chamber of 31 May, 1 and 3 June 1937.
Adoption, with certain amendments making alterations to the text of the
Government Bill, by 74 votes to 5 on 5 June 1927.
2
If the B.ill quoted above in. regard to the regulation of collective
agreements becomes law, it will change the legal situation as set out
in this paragraph in various respects.
' Contra Civil Court, Haarlem, 25 Nov. 1919, N.J. 20, 105.
4
Cf. Justice of the Peace, Amsterdam, 16 Aug. 1918, N.J. 18, 1104.
Justice of the Peace, Amsterdam, 25 June 1918, R.B.A. VIII, Nos. 5-6.
Justice of the Peace, Breda, 17 Jan. 1923, N.J. 24, 461.

312

FREEDOM OF ASSOCIATION

From the point of view of a third party not belonging to either
of the contracting associations, the collective agreement cannot possess any legal value. It remains res inter alios acta, and cannot be
appealed to either for or against them. Neither does it, in relation
to them, enjoy any presumption at law '. In practice, half the
agreements concluded in the Netherlands contain a clause stating
them to be applicable to persons not members of the contracting
associations, who thus benefit by the application de facto. Is it possible for the actual members of the contracting associations to free
themselves from the application of the collective agreement at any
given moment by resigning from the association ? It appears that
on the basis of the existing legislation, the answer to this question
which has never yet been raised in the courts and which is of
interest mainly to the employers' association, would have to be in
the affirmative 2 .
Dutch law does not put any restriction on the nature or the
compass of the stipulations of a collective agreement. So it is that,
as we shall see further on, a collective agreement sometimes deals
with the setting up of compulsory arbitration committees, or with
the composition of a works committee or that of staff committees.
It is also possible for a collective agreement to contain a " closed
shop " clause 3 .
Nevertheless, the ordinary law of the land would be sufficient
to prohibit the inclusion in a collective agreement of any clause
contrary to morals or to the public peace. .
Participation of the Trade Unions in Conciliation and

Arbitration

Government intervention in a collective dispute is regulated
by the Act of 4 May 1923 (Staatsblad, No. 182). This Act set up
official conciliators, whose duty it was to bring about conciliation
between the parties to the dispute, either by intervening in their
own persons or by means of a conciliation committee appointed for
this purpose. The law also provided for the appointment of special
arbitration committees, to which the parties might voluntarily
1

Justice of the Peace, Utrecht, 2 Nov. 1922, W. 10960.

LAND and

STAR BUSSMAN, op.

cit.,

V, p. 240.

E. M. MEYERS :

Nieuwe wetten en litt, over de collectieve arbeidsovereenkomst,
W.P.N.R., 2663-2664.
3
See above, Chapter II, § 1, " The Individual Right of Association ",
P- 293.

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313

submit their differences. In case of important labour disputes, in
which the public interest was manifestly involved, the Minister was
empowered to proceed to the appointment of a commission of
enquiry.
The official conciliator can on occasion, in the course of his
attempts at conciliation, summon employers or workers, as well as
the officers of the association or trade union, to appear before him
or before the conciliation committee. A fine not exceeding 60 florins
is imposed for failure to obey the summons without reasonable
cause.
If the parties voluntarily submit a dispute to an arbitration
committee set up according to the terms of the Act, their action
implies the obligation not only to appear before it if summoned, but
also, if necessary, to give information on oath, refusal to do so being
visited by the penalty of imprisonment not exceeding four months.
The -production of the accounts and of certain other documents can
also be demanded, unless excluded by the terms of the Act of submission to arbitration. If a decision is arrived at by the arbitration
committee, this decision is regarded thenceforward as forming part
of the collective agreement binding on the parties.
The same obligation to appear on summons and to furnish information exists in the case where a commission of enquiry is instituted ;
the police can also be called in in this instance.
It should, however, be mentioned, in regard to this Act, that
only the mediation of the official conciliators has so far been
employed, it not having been necessary to use any form of constraint.
Some collective agreements provide for the appointment of
arbitration committees, the activities of which are of much more
practical interest than the system of voluntary arbitration set up
by the Act. About 90 per cent, of the workers who are bound by
collective agreements are pledged to refer all disputes to an arbitration committee appointed by the parties to the agreement 1. This
arbitration committee is generally permanent ; in some cases
provision is also made for appeal. In most cases the terms of
reference of the arbitration committee include only disputes arising
1
Survey of the Scope and Principal Contents of the Collective
Agreements in regard to Employment (annual publication of the Central
Burean of Statistics in the Netherlands).

FREEDOM OF ASSOCIATION

out of the collective agreement, and that implies an already
complicated system of industrial organisation.
No legal enactment exists in the Netherlands in regard to this
system of arbitration within the trade or industry. The legal
consequences accruing from it would have to be based on the
general principles of civil law and civil procedure.
If sections 620-657 of the Code of Civil Procedure are taken to
be relevant, the case will be assumed to be that of a legal civil
arbitration, the decision of which can be given legal effect by order
of the presiding judge of the competent court. All that the latter
has to do is to satisfy himself that the forms prescribed have been
rigidly adhered to. In the greater number of cases, since these
sections date form 1838 and were then drafted to meet quite different
cases, and laid down a number of formal conditions (such as, for
instance, the requirement of an odd number of arbitrators, in the
absence of which condition their findings are out of order), they
cannot be applied to arbitration committees under the terms of collective agreements; the decisions of this arbitration committee have
generally to be considered as forming part of the execution of the
collective agreement (and sometimes of the carrying out of the conditions of membership of the trade combinations concerned) if the
legal effects of them are to be rightly estimated. The courts will
therefore regard them as obligatory, on condition that they are given
in goor faith. (The same applies to certain decisions taken by
the governing bodies of trade combinations in pursuance of a clause
prohibiting recourse to the courts 1 ) .
PROFIT SHARING AND W O R K E R S ' CONTROL

There is no enactment specially dealing with the institution or
functioning of works committees, and consequently no definition
of the part to be played in this matter by the trade unions. In the
not very numerous instances where such works committees are in
existence, the trade unions have very little influence ; the very
object of setting up some of these councils was to paralyse trade
1
See above, Chapter II, § 2, " Internal Organisation ", p. 302. See
biliography and legal notes supra, note '. r>. 30^ ; also VAN ZANTEN,
KORTENHORST, ENSCHEDE : Rapport over het rechtskarakter van de
rechtspraak in de typographische bedrijven, A.R. 29 G. W. VAN DER
DOES : Ontwikkettng van de bedrijfsorganisatie in de typographie, Diss.,

IQ2I, p p . 114 et seq.

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3I5

union activity. The metal industry is the principal branch of
industry in which national agreements between employers' and
workers' associations are most generally to be found, and in this
industry there are often joint factory councils
(Fabriekskernen).
At the same time it should be mentioned that in a very small number
of undertakings trade unions exercise a certain amount of influence
in the matter of the election or appointment of the members of the
works committee.
There are collective agreements, covering about one-sixth of the
workers whose conditions are regulated by such agreements, containing clauses in regard to committees of the employees of single undertakings, the functions of which committees are regarded as being
those of a deliberative body for the consideration of matters especially
concerning the persons employed in these separate undertakings, but
generally without going beyond the scope of the collective agreements
concluded with the trade unions. This is particularly the case in the
mining and tobacco industries 1.
It should further be noted that the organised consultation of
officials and employees of the public services, as represented by their
trade unions, has become more and more widespread during the last
few years in the Netherlands; the city of Amsterdam has led the
way in this.
COLLABORATION WITH PUBLIC AUTHORITIES

The trade combinations are fulfilling an extremely important
function, which is constantly tending to increase, in taking part in
public life, either indirectly, in the preparation of social legislation
by reason of their participation in consultative bodies, or directly,
by collaboration in the exercise of the legislative power.
Collaboration of ihe Trade Combinations in the Drafting of
Social Legislation
The setting up of the Superior Labour Council (Hooge Raad van
Arbeid) by Royal Decree of 4 October IQIQ (Staatsblad, No. 591)
represents a very interesting attempt towards the permanent
representation, in relation to the machinery of government, of the
1
Centraal Verslag der arbeidsinspectie over 1922, pp. 257 et seq.
G. VAN DEN BERGH : De medezeggenscìtap der arbeiders hi de particulière onderneming, Diss., 1924, pp. 171 et seq.

•

316

FREEDOM OF ASSOCIATION

whole of the economic interests concerned. Its terms of reference are :
to give advice to the Ministers, and principally to the Minister of
Labour, in the working out of systems for the regulation of labour
matters, and even to draft such enactments. Of the 30 to 50 members
forming the Council, 10 are nominated by the Crown, after consultation by the Minister of Labour (who is ex officio President of the
Council) with the principal employers' associations, and 10 after
consultation with the principal workers' trade union centres.
Employers' and workers' representatives are appointed in the same
manner as substitute members.
The Superior Labour Council can act only on the request of the
Minister, and possesses no power of initiative.
Participation of the Trade Combinations in the Application
of Legislation
The law at present in force in the Netherlands for the limitation
of hours of work in general, and for the regulation of dangerous
trades, is the Labour Act of 11 November ioio (Staatsblad, No.
624), which repealed a number of previous protective enactments.
The State officials have the duty of ensuring its application, that is
to say of supervising the working out of such special regulations, and
the issue of permits for exceptions in regard to overtime and certain
specified conditions. With regard to factories and workshops, the
Act laid down in a general manner maximum working hours of
8 ì per day and 48 per week. An amending Act of 20 May 1922
(Staatsblad, No. 364) allowed for the following exceptions : the
Minister may, by the terms of section 28, subsections 7, 8, and 9,
authorise a class of employers or a specific undertaking to depart,
within certain limitations, from the prescribed requirements regarding
hours of work and rest periods, on condition that the employers'
associations and workers' trade unions in the trade or industry
consider such exception to be desirable ; in the absence of any trade
organisations, the opinion of the authorised representatives of the
employers and workers shall suffice. This exception consists in a
possible extension of working hours, provided that the maximum
working hours per year do not exceed 2.500 and are not longer, for
male adults, than 62 per week and 11 per day. This section of the
amended Labour Act had the object of leaving it to the discretion of
the organised trade or industry to work out mutual agreements in
which the principle of the Act was maintained, but the elasticity of

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317

which would allow of adaptation to trade conditions, especially in
the matter of the seasonal trades. Up to the present this procedure
has not been very much used. The collective agreements which were
permitted to be made under its provisions hardly concern more than
six per cent, of the undertakings, and about the same proportion of
the workers, whose conditions are regulated by collective agreements,
and these not in the great industries.
The compulsory insurance of agricultural and horticultural
workers against accidents arising out of their employment has to be
carried out according to the terms of the Accident Insurance of
Agricultural and Horticultural Workers Act of 1922, either by the
official body, the State Insurance Bank (Rijksverzekeringsbank)
or
by trade associations. The latter method is that which is in practice
most in use. The associations in question here are employers'
associations which have to be recognised by the Crown ; that is to say,
that they must comply with certain requirements providing a
guarantee of the proper execution of the Act ; one of these guarantees
consists in the appointment by the Minister of Labour of half the
members and substitute members of the management from a list
drawn up by the workers' trade unions having an interest in the
insurance. There is further a Supervising Council to watch over
the activities of these associations. A third of the members of this
Council have to be selected from a list presented by the workers'
trade unions.
Compulsory workmen's compensation insurance in general, in the
terms of the Accident Insurance Act of 1921 (dealing with all occupations other than agriculture, sea-going transport and sea fisheries, and
repealing and replacing the previous Accident Insurance Act of
1901), is applied to a large extent by means of (1) the official central
institution entitled the State Insurance Bank ; (2) local bodies,
entitled Labour Councils, under the supervision of an Insurance
Council. General compulsory disablement and old-age insurance
under the Disablement Act of 1913 (put into force in 1919) and the
voluntary insurance for old age under the Pensions Act of 1919 are
wholly carried on by these bodies. The labour councils are composed
of an appointed president and of an equal number of elected
representatives of employers and of workers. When the Act was put
into force in 1919, the system of election was not yet in working
order ; that is why section 96 (a) of the Labour Councils Act (that
is the Act relating to the functions, organisation, etc., of the Labour

3 1 **

FREEDOM OF ASSOCIATION

Councils) requires that the members shall be appointed in the first
instance by the Minister of Labour. The appointment was made in
agreement with the employers' and workers' organisations ; this
transition measure has been continued to date.
The Insurance Council, a supervisory body, is composed partly
of appointed paid members and partly of a larger number of unpaid
members elected by the employers' and workers' representatives in
the Labour Councils. They were also appointed in 1919 in agreement
with the trade combinations. In the intervening period elections
have taken place ; the result has been to put representatives of the
trade combinations on t.o the Council.
The State Insurance Bank is an official institution. By the terms
of section 11 of the State Insurance Bank Act of 1920, a Supervisory
Council was set up. Membership of this Supervisory Council
includes, together with several official representatives directly appointed, four persons elected by the employers' group and four
persons elected by the workers' group in the labour councils referred
to above (an equal number of substitutes is provided for). The
workers' representatives are actually, in practice, trade union leaders,
Unemployment insurance iri the Netherlands is carried on by
the trade unions themselves 1 . We have seen that the voluntary
unemployment benefit sections of the trade unions undertake this
insurance in accordance with the terms of the Decree of 1917 on
unemployment. (Royal Decree of 2 December 1916, Staatsblad, No.
522) ; the State and the municipalities supplement by grants the
contributions payable by the insured wage earners. These grants are
administered by the executive committees of the associations, the
1
See Chapter II, § 2, " Administrative supervision ", p. 303. Still
further possibilities are open to the trade unions. It is lawful for a
trade union either to create, or to administer, or to support and give
grants to institutions of an economic or provident character within the
trade. So it is that a trade union has the right to administer its own
mutual benefit sections for all kinds of purposes : strike and lockout
funds, unemployment sections, sickness, old age, funeral, etc. There ate
in the Netherlands many such benefit sections of very various kinds. A
trade union may further possess or make grants to co-operative
establishments, take part in building schemes for the provision of cheap
dwellings, and set up trade schools or employment bureaux, etc.
It may be added that there is no enactment in the Netherlands
regarding the trade union " label ". The matter is of no immediate
importance, as the trade union " label " has not yet-been used in this
country.

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319

regulations of which have to be approved by the Minister, while
the State and the municipalities control both the observance and the
execution of them. A special consultative committee advises the Minister in all that concerns the application of this Decree ; of the
membership of this Committee, one-half has to consist of representatives of the benefit sections in receipt of grants, appointed on the
nomination of the executive committees of the national trade union
centres.
Since 1917 a central committee for assistance in finding employment has been in existence ; this committee gives advice to the
Minister and to the director of the official employment service.
Further, supervisory and advisory committees are attached to all the
official employment bureaux. Representatives of the employers and
workers have seats on all these committees ; in practice they are
actually filled by officials of employers' associations, trade unions
and trade union centres. There is, however, no legal requirement
to this effect.
It should be added that it is at present the custom in the
Netherlands to give seats to leaders of employers' and workers' trade
associations on all kinds of boards of enquiry and advisory committees appointed by the Government or by local authorities, and
dealing with social and economic questions. It is true that these
members are usually appointed in their individual capacity, but they
are selected as being the authorised representatives of the opinion of
the social classes concerned. So it is that the trade associations do
not fail to make their influence felt in the official solution of problems
by the State.

§ 2. — Labour Conflicts

RESTRICTIONS UNDER T H E CRIMINAL L A W

The various modes of activity of the trade combinations do not in
general fall under any special restrictive clauses of the criminal law.
However, the Dutch Code contains certain sections which, while
formulated in general terms and capable of application to very diverse
conditions, were nevertheless drafted by the framers of the legislation
with a view to restricting the weapons of combat available to the

320

FREEDOM OF ASSOCIATION

opposing trade combinations in collective conflicts \ T h e y concern
individual liberty and t h e right of free thoroughfare.
Individual

Liberty

T h i s is dealt with in t h e first place in section 284 of the Penal
Code, which, amended by t h e subsequent Act of 1903, mentioned
above, r u n s as under :
The penalty of imprisonment for a term not exceeding nine months
or of a fine not exceeding 300 florins shall be inflicted on whosoever
unlawfully compels another person, by violence or molestation, or by
threats of violence or molestation directed against such person or against
a third party . . . . to perform, to refrain from performing or to be
accessory to an}- act . . . . .
T h i s section deals w i t h t h e offence of interfering with the liberty
of another ; it is therefore applicable t o t h e case of trade associations.
T h e following remarks m a y be made in regard to t h e conditions
which result in making a certain action a punishable offence :
(a) T h e r e must of necessity be compulsion ; that is to say, t h e
victim of t h e offence must have h a d , contrary to his o w n
wishes, to perform some act, t o have refrained from performing it, or to have been accessory to it.
(b) T h e element of compulsion h a s t o be determined objectively
and not assumed on t h e ground of fears subjectively
experienced by t h e alleged victim.
(c) T h e compulsion m u s t have been exercised by one of t h e
means mentioned in t h e above section.
(d) By " molestation " as mentioned in t h e terms of t h e section
must be understood acts directed against persons or goods
which, while not actually answering to the description of
violence, do in a n y case constitute some kind of tangible
activity. W o r d s spoken, persuasion p u r e and simple and
peaceful picketing do not fall under the ban of this section,
and neither do peaceful boycotting 2 , t h e use of t h e black
list, or t h e publication of names or facts. T h e s e acts are n o t
1
See Chapter I, § 1, " Right to Combine ", p . 287. On these sections s:e : H. J. and È . A. SMIDT : Geschiedenis van het Wetboek van

Strajrecht,

2nd ed., V, pp. 525-700.

MONNIK, op. cit.

NOYON, op.

cit.,

I l l , 3rd ed., 1914, pp. 80-84, 279-282, 387-390. SIMONS, op. cit., II, 4th ed.,
Nos. 369-370, 610-611, 801-802.
' High Court, 19 Nov. 1923, N.J. 24, 153.

THK NETHERLANDS

321

offences as long as they do not involve written or oral
defamation.
(e) Not only violence or molestation but threats of violence or
molestation, are means of compulsion constituting an offence.
(/) Compulsion is an offence even when exercised by threats or
violence against a third person. So it is that an attempt to
compel a worker to down tools, if accompanied by violence
against, for instance, his parents, would come under the
scope of this section. The same applies to violence exercised
against employers, as for instance, by means of threats
against the secretary of an employers' association, if these
dealt with violence or other acts of such nature l .
Right of Free

Thoroughfare

It was also in 1903 that section 4266« was inserted in the text of
the Penal Code ; it is as follows :
Whosoever unlawfully obstructs another person in the public road
in his freedom of movement, or who, with one or more other persons,
persistently besets him against his expressly declared wishes, or who
persistently follows such other person so as to cause him annoyance,
shall be punished by imprisonment not exceeding one month or a fine
not exceeding 100 guilders.
The object of this section is to ensure unobstructed thoroughfare
on the public roads. Interference with this right in either of the
three ways defined in the text thus constitutes an offence. In practice
certain forms of picketing, particularly annoying to blacklegs, are
actually included under these terms. Picketing in itself (whether
consisting in the placing of strike pickets in front of factories, or in
haranguing blacklegs, or in the act of following them) is in general
perfectly permissible. It is only in the cases mentioned in the section
that these acts become offences. Regarding the conditions constituting the offence, the following points may be mentioned :
(a) The section distinguishes between three different forms of
obstructing freedom of movement.
(b) The acts mentioned in the section are not offences unless
they are committed on the public road.
(c) The obstruction of freedom of movement must consist of an
1

High Court, 30 Nov. 1908, W. 8776.

Freedom of Association

322

FREEDOM OF ASSOCIATION
obstacle to free thoroughfare, as would be the case, for
instance, if anyone barred the way to another person by walking in front of him in such a manner that he could not. pass.
(d) The two other cases mentioned in the section constitute
offences only if :
(i) the acts are committed by a number of persons acting
simultaneously ' ;
(2) the action taken is persisted 2 in after the person beset
has explicitly declared, or after it has been declared in
his name 3 , that he desires to be relieved of such
annoyance.
(e) Referring to the person who " persistently follows such other
person, so as to cause him annoyance ", such act cannot be
established if the person followed merely feels annoyed ; the
act must cause really objective annoyance. As the Act does
not provide a definition, it is left to the judgment of the
courts to decide each case on its merits 4 .

It has been laid down in principle by the courts that the conditions of the section are fulfilled if a person is followed for a long
period, closely, if the person following stops when the person followed
stops and goes on when the person followed goes on 4. The act of
following, in the sense of the section, implies following on purpose.
It is not certain whether, in a case of picketing where a strikebreaking worker is accompanied by someone detailed to protect him
(as for instance a police constable), strikers would be liable to prosecution for persistently following this third person so as to cause him
annoyance 5 .
Civil Servants and

Railwaymen

In addition to the general provisions quoted above, capable of
application to all collective conflicts, mention must be made of certain stipulations applying to special categories of offenders. These
1

High Court, 24 Oct. 1904. W. 8133.
High Court, 23 Jan. 1911, W. 9143.
3
High Court, 29 March 1910, W. 9009.
* Hight Court, 6 Feb. 1904, W. 8032. Hight Court, 10 Jan. 1910,
W. 8967.
5
Court of Justice, Zutphen, 7 Oct. 1903, W. 8003 (condemnation).
Court of Justice, Leeuwarden, 1 Nov. 1911, W. 9280 (acquittal).
2

THE NETHERLANDS

323

are three sections inserted in the Penal Code in 1903, and withholding
the right to strike from civil servants and from all persons employed
on the railways '.
358bis. — Any civil servant or any person employed permanently
or temporarily on the public railways (but not including the staffs of
railways confined to slow-moving traffic) who, with the object of causing
or prolonging obstruction in the exercise of a public service, abstains
from performing, or in the face of a lawfully given order, refuses to
perform any services for which he is explicitly engaged, or which fall
under the general duties for which he is engaged, shall be punished by
imprisonment not exceeding six months or by a fine not exceeding
300 guilders.
3¡8ter. — If two or more persons, as the result of a conspiracy,
commit the offences defined in the foregoing section, the offenders,
together with the leaders or the originators of the conspiracy, shall be
punished by imprisonment not exceeding two years.
358quater. — Should the object mentioned in section 3586ÍS be
attained, the penalty of imprisonment shall be a term not exceeding one
year in the case of section 3586M and a term not exceeding four years in
the case of section 3¡8ter.
It is not certain whether the term translated as " civil servant "
(Ambtenaar)
here includes all employees of the public services such
as the municipal officials and employees. I t should, however, be
pointed out t h a t the theoretical interpretation given to the expression
leans towards the wider meaning.
These sections have not, however, so far ever given rise to
prosecutions. Since they have been in force, t h a t is to say, since
1903, various strikes of municipal employees have taken place (in
1920 there was a strike of a political nature) a n d there has also
been one strike of postal employees. These resulted in the application of measures of internal discipline, b u t no prosecutions took place,
although in the latter case the law was undoubtedly applicable. T h e
one and only judicial decision based on section 358Ö15 2 , was the
sentence pronounced on a speaker at a political meeting, w h o had
advocated a general strike (to include municipal services) at a difficult stage of the mobilisation period ; (public incitement to the
commission of a punishable offence, section 131 of the Penal Code).
Many other speeches of the same kind were made by other persons
against whom no legal proceedings were taken.
I t should also be added t h a t the case of t h e crews of the mercantile marine is specially dealt with in the Commercial Code of 1838, the

See VAN DER STOK, op. cit.,

Court of Justice, The Hague, 6 June 1918, N.J. 18, 876.

pp. 258 et

seq.

3*4

FREEDOM OF ASSOCIATION

Act of 7 May 1S56 dealing with discipline in the mercantile marine,
a n d sections 390 et seq. of the Penal Code contain special regulations.
RESTRICTIONS UNDER T H E CIVIL

LAW

T h e activities of trade combinations are, as we have just seen,
very little obstructed in the Netherlands by t h e operations of the
Penal Law ; w i t h the exception of civil servants a n d railwaymen, n o
special legislation exists to deal with industrial relations. T h e fact
nevertheless remains that legal consequences m a y arise from certain
modes of activity employed by trade combinations.
Strikes

and

Lockouts

T h e first question which arises in this connection is the following : what is the ultimate effect of strikes and lockouts on individual
contracts of employment ? 1 T h e question naturally does not arise
unless a conflict breaks out before the expiration of the period for
which the contract has been concluded, b u t that is most frequently
the case.
T h e generally accepted opinion, both in theoretical discussions
and in court decisions, is that the strike or lockout does not entail
breach of c o n t r a c t 2 . A strike may, however, provide an employer
with " urgent reasons " for dismissal without giving t h e normal
period of notice. T h e law recognises urgency if the conduct of the
worker has been such " that the employer could not reasonably be
asked to keep the w o r k m a n in his employment " (section 1639^ of
the Civil Code). Since t h e strike is essentially a case of non-feasance
in regard to the principal duty of the workman, which is to perform
1

J. C. VAN K E M P E N :

Diss., 1907.

Het

juridisch

karakter

der

L. E. VISSER and C. P. ZAAYER : Hand. Ned.

1914, pp. 58 et seq., 120 et seq. O. J. VAN BRAICFL : Rechtsgel.

werkstaking,
Jur.

Ver.,

Magazijn,

1915, pp. 91 et seq.
LAND, op. cit., V., 2nd ed., rev. by P. A. J. LOSECAAT
V E R M E E R , pp. 336 et seq.
M E Y E R S , op. cit., 3rd ed., pp. 53 et seq.

- Justice of the Peace, Zaandam, 25 Feb. 1909, R.B. I, 12. Justice of
the Peace, Groningen, 8 June 1909, R.B. I, 10.
Justice of the Peace,
Arnhein, 9 Aug. 1910, R.B. II, 16-17. Justice of the Peace, The Hague,
22 Oct. 1910, R.B. IT, 16-17. Justice of the Peace, Amsterdam, 24 March
1910, W. 8997. Justice of the Peace, Enschede, 2 Feb. 1911, R.B. I l l , 1.
Justice of the Peace, Amsterdam, 21 Feb. 1913, R.B. IV, 17-18. Justice of
the Peace, Amsterdam, 28 June 1913, R.B. IV, 25-26. Justice of the Peace
Delft, 6 March 1913, R.B. IV, 21-22. Justice of the Peace, Enschede, 4
March 1920, R.B. IX, 13-14. Contra, Justice of the Peace, Utrecht, 2 July,
1919, R.B. VIII, 25-26.

THE NETHERLANDS

325

thè work allotted to him, the courts generally recognise urgency '.
Nevertheless, urgency could not be established if the strike were
caused by improper behaviour on the part of the employer 2 , or if the
latter had demanded the performance of a task which could not
reasonably be required (blackleg labour, for instance) 3 . A strike
of short duration called for demonstration purposes, and not directed
against an individual employer, is not considered as providing urgent
reasons for dismissal 4 .
If and when a strike constitutes " urgent reasons " justifying an
employer in immediately dismissing a worker, it also gives an
employer — according to the generally accepted opinion — the
right, if he does dismiss the worker, to sue him for compensation
under the terms of section 1639« of the Civil Code, since there is, in
this case, an intentional act on the part of the worker. Up to the
present, however, in only one single case in which a worker has
been sued for compensation on this ground has it been awarded °.
Two other decisions admitted the right to compensation, but did not
award it to the plaintiffs ; in one case because the plaintiff had been
unable to prove exactly what damage had been caused by the
withdrawal of labour of the workman dismissed 6 and in the other
instance on formal grounds 7 .
In those cases in which the strike does not furnish the employer
with " urgent reasons " for immediate and lawful dismissal of the
worker and in which the relation of employer and employed persists,
withholding of labour nevertheless constitutes non-feasance of the
contractual obligation to work. Non-feasance under a contractual
obligation of this nature renders its perpetrator liable to pay compensation to the other party unless non-feasance cannot be proved against
him. In the generality of cases non-feasance can be proved against
a worker by the withdrawal of his labour within the terms of his
1
Justice of the Peace, Groningen, 7 Feb. 1910, R.B. IV, 11-12. Justice
of the Peace, Enschede, 4 March 1920, R.B. IX, 13-14. Justice of the Peace,
Rotterdam, 16 Oct. 1922, R.B. XI, 15-16. Justice of the Peace, Zaandam,
22 Oct. 1925, R.B. XIII, 19-20.
3
Justice of the Peace, Rotterdam, 6 Feb. 1911, R.B. Ill, 4 ; and for
a different opinion, Justice of the Peace, Amsterdam, 21 Feb. 1913, R.B.
IV, 17-18, and Justice of the Peace, Anmsterdam, 28 June 1913, R.B. IV,
25-26.
5
Justice of the Peace, Amsterdam, 8 April 1918, R.B. VII, 23-24.
4
Justice of the Peace, Amsterdam, 8 Aug. 1918, R.B. VIII, 5-6.
'' Justice of the Peace, Zaandam, 22 Oct. 1925, R.B. XIII, 19-20.
• Justice of the Peace, Gorichem, 9 Dec. 1918, R.B. Vili, 11-12.
' Justice of the Peace, Enschede, 4 March, 1920, R.B. IX, 13-14.

326

FREEDOM OP ASSOCIATION

individual contract, unless he ceases work for such reasons that the
continuance of work could not reasonably be required of him. Such
would be the case if the employer had not fulfilled his own contractual and moral obligations. In the ordinary run of strikes this reason
usually does not exist . According to existing Dutch law, a strike
for the purpose of altering labour conditions, a sympathetic strike,
and a political strike are all unlawful acts from the point of view of
the individual contract of employment. All the same no action for
the recovery of compensation without breach of the contract of
employment has ever been brought into a court of law.
A second question is raised by labour disputes occurring in
contravention of the terms of collective agreements ; do these provide
a basis for claiming compensation ?
According to the terms of the collective agreements binding about
70 per cent, of the workers in about 60 per cent, of the undertakings
throughout the country, the strike and lockout are prohibited during
. the period in which the agreement remains in force. Should a conflict
break out, could the employer or the employer's association claim
compensation for non-feasance of the obligations laid down in the
agreement, or vice versa? This point has been the subject of
theoretical controversy. There are actually many questions involved :
Is the trade union liable for the actions of its members, and if so to
what extent ? Is an association empowered to claim compensation
for the injuries sustained by its members and to what extent ? Is the
dispute in question really what is prohibited by the agreement ?
It is more important to note that there has been no litigation on
this point ; the only cases to which reference could be made are
certain decisions appointing arbitrators to decide whether or not a
trade union had provoked a conflict in a fashion contrary to the
stipulations of a collective agreement.
Boycotting
Actually, as we have seen, the law courts have had very little
occasion to deal with trade union activities; it is only comparatively
lately that they have been called upon to deal with labour disputes
from another point of view. In the course of the last few years
certain cases of boycotting have been made the subject of legal
decisions. There have been two principal factors in bringing about
this partial change in the situation ; the wider interpretation which
has been given to the definition of wrongful acts and the extended
use made of summary procedure.

THE NETHERLANDS

327

Section 1401 of the Dutch Civil Code is as follows :
Any wrongful act which causes injury to another person creates an
obligation upon the person b\r whom the injury has been caused to make
good the same.
For a number of years there were differences between the opinion
of a large proportion of the theoretical jurists and the tradition of the
law courts in regard to the interpretation (wider or narrower) to be
given to the word " wrongful " (or unlawful, in .Dutch onrechtmatig). The courts adopted, as a general rule, the narrower interpretation, basing their decision on the consistent judicial practice of
the High Court, in not considering as wrongful any other acts than
those directly interfering with the rights of another person, or
contrary to the duties legally devolving on the author of the act, to
the extent to which such duties could derive from the law. The
practical results of this interpretation of the law by the courts were
not highly satisfactory, particularly in the case of unfair competition ;
in 191Q the High Court * adopted a wider view and decided to regard
as " wrongful any act or any abstention which interfered with the
rights of another person, or was contrary either to the legal obligations
of its author or which was contra bonos mores or to the proper care
that should always be exercised in social relations in regard to the
person or the goods of others. " This has been the interpretation
subsequently given in the generality of cases in the law courts. It
has enabled them to go beyond the scope of acts of unfair competition and to deal with certain other acts which it has been possible
since that time to regard as wrongful ; certain of the modes of activity
in use by trade combinations thus became capable of inclusion under
this definition.
This would not have been sufficient to lead to the bringing of
actions in the civil courts, which proceedings are always lengthy and
costly, if there had not been simultaneously a considerable extension
of the possibilities of summary procedure (section 289 et seq. of the
Code of Civil Procedure 2 ). Legal opinion, in the light of certain
researches on the subject, gradually ceased to entertain a too limited
1

High Court, 31 Jan. 1919, N.J. 19, 161, W. 10365 ; notes by MOLENW. 10365 ; MEYERS, W. P. N. R. 2564 ; SCHÖLTEN, W. P.N.R.
2568 (with bibliography and court decisions).
2
J. P. A. N. CAROLI : Het kort geding, I, 1906, continued by E. M.
GRAAFF/

MEYERS, II,

1915.

P. CONINSK-WESTENBERG and

Hand. Ned. Jur. Ver., ig22.

W. M.

DE BRATJW :

3*8

FREEDOM OF ASSOCIATION

conception of the competence of the presiding judge (of a district
court, Arrondissements-rechtsbank).
Recourse to this procedure is
nevertheless still somewhat restricted, compared with that made of
it in France and Belgium. The Dutch employers have sometimes
made application in summary procedure for a provisional injunction
against some form of trade union activity which appeared in essence
to be capable of being brought under the definition of " wrongful
act ", reserving their right of subsequently demanding compensation.
Neither a strike nor a lockout could be concerned here, as they
could riot be classed by any interpretation, however wide, as
" wrongful acts " ; the same is not the case with boycotts 1. From
the decisions which have been given it appears possible to draw the
following conclusions :
(a) The following modes of activity are in themselves considered as lawful 2 : boycotting, blacklisting, an appeal to the
public to boycott an employer, made by means of handbills, notices, bills posted in front of the latter's establishment, and by speaking to passers-by on the subject.
(6) Several presiding judges 3 have, however, issued provisional
injunctions against continued action of this kind which was
very prejudicial to the employer, if its lawfulness was
doubtful and in the absence of any exact precedent. They
have, however, required as a general rule that an application for an injunction of this kind should state precisely
what were the actions against which the provisional
injunction was requested ; no general application for the
stopping of all boycotting could be made \
(c) The method of applying the modes of activity recognised

1
Cf. W. H. DRUCKER : Onrechtmatige daad, Diss., 1912, pp. 237 et
seq. IDEM ": " Naar aanleiding van H.R., 31 Jan. 1919 ", Rechtsgel. Mag.
1919, p. 335. IDEM : " De burgerlijke rechter en de vakactie ", Econ.
Stat. Ber., 1924, pp. 151 et seq. B. P. GOMPERTS, W.P.N.R. 2951.
a
Justice of the Peace, Amsterdam, 9 Nov. 1921, W. 10806, confirmed
by Court of Justice, Amsterdam, 30 March 1923, N.J. 23, 1305. Court of
Justice, Amsterdam, 4 Dec. 1923. W. 11172.
* Rotterdam 19 April 1921, N.J. 22, 451. Rotterdam, 25 Feb. 1922,
N.J. 22, 791. Amsterdam, 16 April 1923, N.J. 23, 647. The Hague, 26 Jan.
1924 R.B. XII 3-4.
* Court of Appeal, Amsterdam, 29 May 1925, N.J. 26, 172.

THB NETHERLANDS

329

as being lawful in (a) can, however, render them unlawful;
for example :
(1) no right exists to interfere, by action taking place in
any road or street (e.g. by disorderly conduct or by
threats) with the liberty of the public to respond or
not to respond to the appeal to join in the boycott ' ;
(2) The contents of handbills, etc., may not be couched
in improper language 2 .
(d) The unlawful character can also arise from the object of
the action taken :
(1) This object must not be contrary to the public peace
or contra bonos mores, as would be the case, for instance, in putting pressure on anybody to become a
member of a certain party or a certain religious
denomination, and probably also pressure put on an
employer not to engage any workers except those who
where members of a certain party or a certain religious
denomination ;
(2) although in general the object of a boycott does not
come under consideration 3, the latter would be regarded
as being unlawful if this object consisted in revenge,
provocation, or blackmail.
In those cases in which a boycott is made the subject of a
provisional injunction, by summary procedure, the trade union
concerned has been obliged to pay to the other party a certain sum
by way of compensation or damages for each day on which the
injunction has not been observed. On the other hand, the party
against whom the boycott is carried on must bring an action before
the Court of Justice in full session (application for compensation for
wrongful acts) within a certain number of days. In view of thè
time taken by such an action before the civil courts, the summary
injunction has in practice the effect of putting a stop to the boycott.

Court of Justice, Amsterdam, 4 Dec. 1923, W. 11172.
Justice of Peace, Amsterdam, 9 Nov. 1921, W. 10806, confirmed by
Court of Justice, Amsterdam, 30 March, 1923, N.J. 23, 1305. Court of
Appeal, Amsterdam, 1 June 1923, N.J. 25, 30.
• Court of Justice Amsterdam, 4 Dec. 1923, W. 11172.
a

CONCLUSION

The Dutch trade unions, which date only from the second half
of the nineteenth century, have had, as we have seen, a rapid
growth. Because of their extreme conservatism at the outset, it was
some time before they made full use of the modes of activity open
to them ; the indubitable power now wielded by them has been
theirs for only about twenty years. While benefiting from the
outset by the terms of the Act of 1855, with their liberal interpretation of the principle of freedom of association and assembly guaranteed in the Constitution of 1848, they were faced in their earlier days
with fairly strict legislation in the matter of combination, the main
tendency of which was, in the spirit of the French Penal Code in
force in the Netherlands until 1811, to ensure the individual right
to work. It was in 1872 that the right to strike was first recognised ;
only civil servants and railway employees are still subject to
restrictions, of a nature which is described in this study, these
restrictions being laid down in the amending sections added to the
Penal Code in 1903.
As the practice of combination has become more and more a
force to reckon with, the legislative power has not attempted to
confine the organisations of workers and employers within the
bounds of regulations which they would probably have tried to
overstep. It is true that the individual right to work suffers some
restriction, but cases of improper action in this respect remain subject
to severe checks.
On the whole it is the general law of the land which has to apply
these checks; a trade combination is not made the subject of different
treatment from any other association ; freedom of trade combination
benefits from the wide conception given in the Netherlands to
freedom of association in general. The position seems to give
general satisfaction, and the courts seldom have to deal with litigation arising out of the activities of trade combinations. The strike

THE NETHERLANDS

33*

and lockout, which are lawful modes of activity, do not entail
breach of contract, and the question has never actually been raised
as to whether a strike carried on contrary to the terms of a collective agreement would justify a claim for compensation.
There is complete liberty to join a trade union. It is enjoyed
by persons carrying on all kinds of occupations and extends to civil
servants and members of the Forces. The administrative formalities
regarding the constitution of trade combinations are extremely
simple. To a greater and greater extent the trade organisations
tend to enlarge their scope of activity and to collaborate with public
bodies either in drafting social legislation or in assisting in its application by the Government.
The restrictive clauses adopted in 1903, together with the case
of the Seamen's Union and proceedings in connection with boycotts,
are almost the only matters which have occasioned the giving of
judicial decisions applying to the activities of trade combinations.
Neither on the part of the wage earners nor on that of the
employers has there been any expression of a desire to change the
present state of affairs. The trade combinations appear to be able
to protect the interests of their members in a satisfactory manner
without interfering with the public interest, and they are becoming
more and more the accepted representatives of the whole of a trade
or industry.

BIBLIOGRAPHY

References to literature on the subject as well as to court
decisions, will be found in the footnotes in the text.

SWITZERLANDl
CHAPTER I
THE HISTORY AND PRESENT POSITION OF TRADE UNIONS

§ 1. — The Origins and Development of the Trade Union
Movement
ORIGINS

Previous to the fall of the old Swiss Confederation in 1789, no
real trade union movement can be said to have existed in Switzerland.
It is true that the guild movement was well developed, but the various
associations of masters {maîtrises) and wardens of trade corporations
(jurandes) and Zünfte only included artisans who were small industrial employers, to the exclusion of wage earners.
Organisations of a strictly working-class character, such as the
associations of journeymen, were comparatively unimportant in
Switzerland ; and Swiss workers, particularly those belonging to the
building trades, such as stonecutters, masons, carpenters, etc., were
often affiliated to the French and German associations of journeymen
French and German journeymen (Compagnons du tour de France of
du tour d'Allemagne) who visited Switzerland helped, during their
stay in the country, to disseminate a knowledge of the special customs
in vogue among journeymen, which, moreover, were generally surrounded with a good deal of mystery and secrecy.
1

This monograph was written by Professor Antony BABEL, of the
University of Geneva, at the request of the Federal Office of Labour and
in accordance with the plan drawn up by the International Labour Office;
it was submitted to the Federal Office of Labour before its return to the
International Labour Office.

PREEDOM OP ASSOCIATION

334

As far as information is available with regard to the attitude
adopted by the public authorities of the old Confederation, it would
appear that considerable opposition existed not only to combinations
of workers but also to certain combinations of employers. It may
be noted, in this connection, that all combinations of employers or
employees were strictly prohibited under severe penalties by the official
regulations for printers issued at Geneva in 1580. In 1749 journeymen gold and silversmiths, who had combined, were prosecuted by
the Geneva Council and their association dissolved.
Throughout the eighteenth century, moreover, Swiss wage earners
appear to have remained comparatively indifferent to the idea of
combination generally associated with the class spirit engendered by
the origin and development of large-scale industry. One case may be
noted, however, in 1760 of a temporary combination among the workers in the Genevese cotton-print industry, who undertook, by a regular legal deed, to cease work in a calico factory if their employer
persisted in lowering wages in accordance with his expressed
intention 1.
The political changes which occurred in 1798, the disappearance
of the old Confederation as a result of French intervention, and the
creation of an indivisible Helvetic "Republic, were distinctly unfavourable to the development of vocational organisations. Swiss laws,
as long as the Helvetic Republic lasted, were modelled on French
legislation ; and French laws were actually applied without modification at Geneva, in the Valais, and in the Jura Bernois, which were
then under French rule. The position remained unaltered during
the period of the Act of Mediation, from 1803 to 1815. It was
natural, in these circumstances, that the French attitude towards
combinations of workers or employers should be followed in
Switzerland. The Le Chapelier Act, adopted by the Constituent
Assembly in 1791, prohibited employers and workers from combining,
or even from meeting, with a view to the discussion of " their alleged
common interests ".
In 1799 the Commune of Geneva adopted a regulation for the
application of this Act, prohibiting " workers belonging to all trades
or occupations from forming any association, affiliation, or assembly ".
They were also prohibited from " coming to an understanding amongst
themselves, compelling one another, by threats or otherwise, from
1

Antony BABEL : Essai sur les causes et le développement de la
législation du travail en Suisse, pp. 32-33. Geneva, 1925.

SWITZERLAND

335

leaving their work with a view to forcing up prices, or exercising
violence for this purpose " 1 .
Similar views appear to have prevailed throughout Switzerland ;
and the fact that combinations of workers of all kinds were prohibited
in the Canton of Aargau, where industry was already well developed,
by regulations dated 8 May 1806, may be cited in support of this view 2 .
The suspicion with which associations of masters were almost universally regarded, and the fears inspired by a recrudescence of the old
guild spirit aimed at freedom of commerce and industry, were no doubt
largely responsible for the Draconian regulations aimed at any
attempts to combine.
Zurich police regulations, dated 16 December 1844, were probably
inspired by fears of this character, and workers are prohibited, in
one of the articles, from combining with a view " to defying the
authorities, harming employers, interfering with their rights, or in
any way seeking to attain any object contrary to public morals,
and public order . . . " 3 .
The period from 1815 to 1848 was dominated by the Pact of 1815,
the Federal power was extremely weak, and public authority was
vested almost exclusively in the Cantons. No measures relating to
freedom of association were taken by the central Government during
this period. The various measures aimed at combinations did not,
however, prevent the idea of association from developing throughout
Switzerland during the first half of the nineteenth century ; workers'
associations (which were not as yet trade unions in the strict sense
of the word) were gradually organised in various districts, and the
authorities in general remained indifferent to the movement. After
the Pact of 1815 came into force, most of the Cantons adopted a fairly
tolerant attitude towards associations.
Switzerland was at this time passing through a period of rapid
economic development ; and the industrial revolution which had begun
during the eighteenth century was nearing its completion 4 . Machinery was gradually being substituted for the old organisation under
which industry was dispersed and organised in the small crafts and
1

A. BABEL, op. cit.,

p. 46.

THIES : "Streiks- und Lohnbewegungen , in the Handwörterbuch
der Schweizerischen Volkswirtschaft, Sozialpolitik und Verwaltung, by
Prof. N. REICHENBERG, Vol. III, p. 807.
3

THIES, loc.

cit.

' W. E. RAPPARD : La révolution industrielle et les origines de lay
protection légale du travail en Suisse. Berne, 1914.

33°

FREEDOM OF ASSOCIATION

workshops. Considerable numbers of workmen, now grouped in
factories and large workshops, were subjected to strict discipline and
subordinated to the machines which they operated. Esprit de corps
was strengthened by these facts, which also tended to develop common
habits of life and a community of interests ; workers were also beginning to realise that they would have a better chance of enforcing their
demands by combining.
They were also coming under the influence of foreign workers
to an increasing extent, many of whom were exiles from their own
country owing to their political or social opinions ; and foreign workers
appear to have been the chief initiators of the movement which aimed
at combining the workers in Switzerland. But this movement was
hampered for a long time by the conservatism and traditional habits
of certain classes. Many who did not wish to face the problem went
as far as to deny its existence; and Gustave Moynier, one of the
founders of the Red Cross Society, wrote, as late as 1867 : " There
is no real working class in Switzerland, for the workers in this country do not constitute a distinct class of the population. " 1
Many democratic idealists seemed to think that political and
social equality were necessarily connected.
Considerable pressure was, however, exercised by the Radical
Party in Switzerland from 1830 to 1848 in favour of a liberal and
centralising policy. The party generally enjoyed the support of the
workers, and one of its main objects was, by adopting a policy
favourable to their demands, to prevent them from seceding and forming a separate Socialist Party. These were the conditions under which
the labour movement developed in Switzerland previous to 1848 ; but
it must again be emphasised that it was not a real trade union movement, but merely one which aimed at a concentration of the workers,
quite apart from their vocational interests.
An association called La Fédération des Bannis was founded by
German exiles at Paris in 1834 ; its place was taken in 1836 by the
Fédération des Justes, inspired by Wilhelm Weitling, an exiled German tailor living in Paris. This body took part in 1839 in a riot in the
French capital ; Weitling was obliged to fly and took refuge in Switzerland, where he subsequently engaged in a vigorous propaganda.
The ground had previously been well prepared in French Switzerland
1

Gustave MOYNIER : Les institutions ouvrières de la Suisse, p. 5.
Geneva and Paris, 1867.

SWITZERLAND

337

for his teachings by a former disciple of Babeuf named Philip Buonarotti, who had settled at Geneva.
This agitation led, in 1838, to the foundation of the Grütli Society
at Geneva by a number of German Swiss workers in that town. Its
aims were both political and social. It commenced as a body of
moderate tendencies and acted with the Radical Party, of which it
formed the left wing. Although the society remained preponderantly
a political body, It was associated at a later d^te, as we shall see, with
the trade union movement ; the society continued to exist until quite
recently and was only dissolved, after a vote of its members, in December 1925. At that time it was purely a political party (Popular
Socialist Party).
In 1848, 17 sections of the Grütli Society were in existence in
Switzerland, with their headquarters at Geneva.
An attempt in 1840, inspired by Treichler, at Zurich to found
a Swiss Socialist Workers' Party, exclusive of trade union objects,
failed.
The existence of a few Communist groups, consisting mainly of
German workers, may also be noted in 1848; but they had no trade
union basis x.
Such were the earliest associations in which the workers sought
to concentrate and combine, to develop a separate class spirit, and
to prepare the way for future associations intended for the defence
of the professional interests of their members.
The year 1848 was one of the most important in Swiss history.
The country had just passed through a dangerous crisis in 1847, when
the civil war of the Sonderbund proved the last act in a long drama
of political and religious conflict. The weakness of the federal bond
had been amply demonstrated by this event, together with the need
for strengthening the power and authority of the central Government.
the federal constitution of 1848 established a Federal State, in the
place of the former Confederation, and the Cantons abandoned a
considerable part of their sovereign powers to the new Confederation.
Freedom of association was formally guaranteed, among other
rights, by Article 46 of the Constitution, which became Article 56
1
For information regarding the labour movement before 1848 see
Babel, op. cit., pp. 68 et seq. ; Johann HÜPPY : Geschichte des schweizerischen Gewerkscliaftsbitndes, Zurich, 1910 (Introduction) ; Hans FARNER : Die Geschichte des schweizerischen Arbeiterbundes, Thesis, Zurich,
1933, pp. 13 et seq. ; H. TOENDURY : " Gewerkschaften ; Gewerkschaftsbund ", in the Historisch-Biographisches Lexikon der Schweiz.

Freedom of AFsociation

33^

FREEDOM OP ASSOCIATION

after its revision in 1874, the provisions of this Article remaining
unaltered. Thanks to the right of association guaranteed by this
text, trade unions were at liberty to organise themselves without
interference after 1848 ' ; nor have any laws since been passed for the
purpose of developing the general principle laid down in the Constitution, or determining the legal status of occupational organisations
with greater precision. Nothing analogous to the French Act of 1884
exists in Switzerland.
Though the Swiss trade union movement was free to develop by
legal methods, and without opposition from the Government, from
1848 onwards great opposition was encountered from employers ; and
some of the latter endeavoured, either individually or in groups, to
hamper and restrict the development of workers' organisations. One
of the methods usually employed was to discharge union workmen;
and this problem was discussed at several Swiss workers' congresses,
particularly that of 01 ten in 1890.
It is proposed to summarise the early phases of the trade union
movement from 1848 onwards, noting the special difficulties and
obstacles encountered, which included the struggle between Swiss
and foreign workers resident in Switzerland; the opposition to
federalist ideas propagated by Bakounine, particularly in the Jura,
and the centralising doctrines of Marx and the Communist Manifesto ;
complications due to language differences and political decentralisation
must also be noted.
The Grütli Society, while remaining a political party, became
more and more preoccupied with questions of social reform. It
comprised a hundred sections, with a membership of 3,500 in 1864,
including both workers and artisans.
The first real trade unions consisted of compositors, who
constituted the most active and the best informed section of the
workers. The example set by Berne in this respect was followed by
several other towns in German Switzerland ; and in 1858 delegates,
representing the local groups, met in Congress at Olten and founded
the first Swiss trade union federation, la Fédération Suisse des Typographes or Schweizerischer Typographenbund.
This example was
followed in other trades, and national federations were founded by the
tailors in 1867, the shoemakers in 1868, the textile workers of the
Basle district in 1870, the tobacco workers in the same year, and the
engravers and guillochers in 1872, etc.
' See p. 356.

SWITZERLAND

339

These federations all aimed at grouping workers belonging to the
same trade or industry from all parts of Switzerland ; but other
forms of trade union organisation also existed.
Vocational
organisations belonging to a single town, or district, sometimes united
to form trade union federations on a local basis. For instance, the
Glarus federation grouped five Glarus trade unions in 1864. In 1869,
the Geneva federation of trade unions included twenty-three organisations, that of Basle eleven, and that of Zurich five, etc.
Parallel with the trade union movement, another form of action
existed which, though not strictly occupational in character, was inspired by political and social aims. The first " International ",
established at London in 1864, held its first Congress at Geneva in
1866, followed by a second one at Lausanne in 1867. Several sections
of this " International " were established in Switzerland in 1865 ;
and branches existed. in 1866 at La Chaux-de-Fonds, Geneva,
Lausanne, Vevey, Montreux, Boncourt, Bienne, Sonvillier, SaintImier, Porrentruy, Neuchâtel, and Le Lóele.
The French Swiss federation of the "International" was founded
at Neuchâtel in 1869 by the 50 Swiss sections affiliated to that organisation ; but in 1871 a schism between the Jura and Geneva sections
occuneu âûu ine lormer esíaunsiieu ine jurassian icueration, wiiicu
came under the influence of Bakounine and subsequently of
Kropotkin.
The period from 1848 to 1874 was thus marked by great diversity,
and different types of workers' organisations existed : local federations
of trade unions, national federations, sections of the " International ",
sections of the Grütli Society ; while a considerable number of strikes,
which aimed at reducing hours of work or raising wages, also occurred
during the same period. From i860 to 1874, 148 strikes or similar
wage movements took place in Switzerland. The most important
was the Geneva strike of 1868, which was supported by sympathetic
action on the part of the workers throughout Switzerland, and resulted
in the building workers obtaining a 20 per cent, increase of wages,
coupled with a reduction of the working day from twelve to ten hours.
T H E EXTENSION OF T H E T R A D E UNION MOVEMENT

The movement continued to make rapid progress during the
second half of the nineteenth century, several factors contributing to
the concentration of labour forces on a national basis. An increasing
tendency was being displayed to deal with problems from a national,

FREEDOM OF ASSOCIATION

34°

as opposed to a cantonal, point of view ; and centralisation was developing under the influence of the Radical Party, which was then in
power. Relations, moreover, between different parts of Switzerland
were being rendered easier by the extension of transport facilities;
and this was one of the reasons why Olten, an important junction,
was so often selected as the venue for workers' congresses.
Owing to the development of industry, the number of workers
was also increasing steadily : whereas there were only 163,348 workers of both sexes in i860, of whom the great majority were homeworkers, their number had risen to 536,560 in 1910, so that the number
of persons interested in trade unionism had increased very rapidly.
Other classes of workers also existed, in a position to supply the
unions with recruits, particularly the employees, of whom there were
57,377 in industry, and 73,252 in commerce in 1910. Transport workers and employees must also be mentioned, whose number increased
from 17,464 in 1870 to 79,500 in 1910. Finally, the employees and
public officials of the Confederation, the Cantons, and the communes
also formed a class of workers whose number was rapidly increasing
with the multiplication of the functions of the modern State.
In 1921 the Federal Government alone employed 70,748 persons,
including the staff of the Federal Railways *.
In February 1870 a Socialist Congress was organised by a committee at Zurich, the agenda of which included the discussion of trade
unionism and the proposed establishment of a Swiss trade union
federation. The positive results were, however, negligible owing to
the existence of two opposing tendencies which manifested themselves
at the Congress. One party wished to establish an organisation with
both political and trade union aims, while the other, whose supporters
came chiefly from Geneva and the Jura, showed complete indifference
to political action and wished to establish organisations of an
exclusively vocational character. Three more years of continuous
discussion were necessary before anything definite could be achieved.
A Workers' Congress was held at Olten, from 1-3 June 1873,
which was attended by the representatives of nearly 10,000 workers,
all of whom, however, were not trade unionists. Only 35 unions, with
a membership of 3,400, sent delegates; the remaining delegates
represented the sections of the Grütli Society (4,000 members), and
1

For further information on this point, see

125-140, 176 et seq.

BABET,,

op. cit., pp. 81-94,

SWITZERLAND

341

various working-class clubs established chiefly for educational purposes. The " First International " had meanwhile practically ceased
to exist, as a result of The Hague Congress of 1872 ; in spite of this,
however, the Jura federation of this " International " was still in
existence, and refused to adhere to the Olten movement, the latter
being regarded as unduly subject to centralising tendencies.
After much discussion, the creation of an organisation, comprising not only trade unionists in the strict sense of the word, but
also other workers' associations, the Grütli sections, educational clubs,
sickness insurance funds, and, in fact, any association ready to accept
the rules of the federation, was decided upon by the Olten Congress.
The organisation thus showed its readiness to shed its purely trade
union character, thus preparing a conflict of opinions and interests
for the future.
The organisation established as a result of these discussions was
the first Swiss Workers' Federation (Schweizerischer
Arbeilerbund)
generally known as the " Old Federation ". Its principal objects
comprised some relating to the immediate improvement of working
conditions, and others aiming at reforms of a less immediate character,
which even included the abolition of the wage system. The intention
was " to come to an understanding as to the best means of bringing
about some immediate improvement in the lot of the worker, subsequently replacing wages by an equitable distribution of the products
of labour through the establishment of producers' co-operative societies, and thereby finally abolishing the dominion of the privileged
classes ". Rules for establishing a standard of technical education
were also laid down, and principles on which protective labour
legislation should be based were agreed upon. The Swiss Workers'
Federation took an active part in the passage of the first Federal
Factory Act of 23 March 1877.
All members of the federation undertook to pay an annual
subscription of 40 centimes; Geneva was chosen as the headquarters,
and the Tagwacht, of Zurich, as the organ of the federation. A
second Workers' Congress was held at Winterthur in 1874, and a
third at Basle in 1875.
The strength of the federation in 1876 is shown by the following
table :

FREEDOM OF ASSOCIATION

342

Groups

Number

Membership

656

Other political groups

2,085

Sickness insurance funds

1,099

Trade unions

2,490

Griitli sections

Among these 50 trade unions the principal ones were grouped
in occupational federations ; the leather workers including 16 sections,
the tailors 10, the woodworkers 12, the metal workers 9, etc. ; while
the geographical distriBution of the chief groups was as follows :
Cantons

Sections

Members

Zurich

873

Basle

527

429

401

375

295

Geneva
Vaud
St. Gall
Neuchâtel

A vigorous propaganda, inspired by Greulich, was carried on
with a view to the formation of new trade unions. Sickness insurance
funds, however, proved the most successful, and organisations of this
kind were often established thanks to middle-class support. A central
sickness insurance fund for the whole Workers' Federation was
established in 1876.
It was obvious that the development of trade unions in Switzerland
favoured the enforcement of the workers' demands. Wage disputes
and strikes were numerous, and 20 strikes occurred in 1873, in 14 of
which the workers were successful. From 1874 to 1880 the movement
was less active, owing to the industrial depression then prevailing.
Thirty-four strikes, however, occurrred, most of which appear to have
had positive results. Trade unions, however, only possessed limited

343

SWITZERLAND

strike funds ; and their comparative success was no doubt due to the
fact that organisation was practically non-existent among the
employers.
The Congress of Neuchâtel, in 1877, marked the culminating
point in the history of the " Old Federation ", and was followed
during the succeeding years by a period of decadence, largely attributable, no doubt, to the industrial depression from which the country
was again suffering. The sections decreased in number and, after
reaching 180, fell to 61 in 1880. The Olten Congress in November of
that year was only attended by delegates from 27 sections; and the
dissolution of the old " Swiss Workers' Federation " was decided seven
years after its creation.
This was followed by the dispersion of the old members, who
began by grouping themselves in a number of temporary new organisations : a Federation of Swiss Trade Unions, comprising workers
of all nationalities, which was destined to play the chief part in the
Trade Union Federation; the Swiss Socialist Party, a Social-Democratic Party consisting mainly of Germans settled in .Switzerland;
the Grütli ; the Jura Federation, which had survived the disappearance
of the " First International " ; and the various associations of Catholic
journeymen. In short, labour forces were completely dispersed 1.
This lack of cohesion lasted until 1887. Meanwhile, in 1883, an
organising committee (Comité d'action) was established with a view
to creating a new federation ; and a reserve fund, known as the
Allgemeine Schweizerische Arbeiterreservekasse, intended to supply
funds for carrying on active labour propaganda, was established in
1886. The part played by this fund was important; it was attached
to the new Trade Union Federation in 1891, and the great majority
of the active labour movements which occurred before 1895 were
financed with the aid of the fund, as shown in the following table * :

BABEL, op. cit., pp. 158 et seq.; HÜPPY, op. cit.,
FARNÌÌR, op. cit., pp. 18 et seq. ; TOENDURY, loc. cit.

* HÜPPY, op. cit., pp. 68-85.

pp.

30 et

seq.;

FREEDOM OF ASSOCIATION

344

Wage demands

Strikes

Year
Successful

Unsuccessful

Successful

Unsuccessful

Financial
contributions
(in Swiss
francs)

—

28,181

1888

14.303

1889

18.354

189O

14,658

1891

5.889

1892

8,566

1893

.—

10,303

1894

65,120

1895

37.891

1885

1886

1887

Various reasons have been suggested for the dispersal of labour
forces which marked the period between 1880 and 1887. Greulich
and Karl Bücher believe that the indifference displayed by Swiss
workers to trade union action was attribuable in part to the extensive
political'rights they enjoyed, coupled with the fact that much of their
time and energy were absorbed by the complexities of Swiss politics,
whether communal, cantonal, or federal *. The need for concerted
action in the defence of their vocational interests was, however, too
strong to prevent a fresh concentration of labour forces. Before
describing the formation of the new Workers' Federation, however,
a brief glance at the origin of employers' organisations may not be
amiss.

H. GREULICH in the Jahrbuch für Sozialwissenschaft und Sozialpolitik, ist year, I, p. 252 ; K. BÜCHER : " Die schweizerischen Arbeiterorganisationen " in the Zeitschrift für die gesamte Staatswissenschaft,
Vol. 44 (1888), p. 612.

345

SWITZERLAND

Since the disappearance of the guilds, the employers' forces had
also suffered from dispersion, nor were the drawbacks of this long in
making themselves felt. The earliest combinations of employers
appear to have been inspired chiefly by economic motives, and it was
only gradually, concurrently with the formation of workers' organisations, that social preoccupations became apparent. The movement
in favour of a union of employers' forces began on cantonal lines
Later, in 1869, various local associations united to form a central
organisation : the Swiss Federation of Commerce and Industry
(Schweizerischer Handels- und Industrie-verein), a body which is still
in existence. This organisation aimed, as it still aims, at promoting
the interests of its members and co-operating with the Federal
authorities in all questions relating to commerce and industry.
The Swiss Union of Arts and Crafts (Schweizerischer Gewerbeverband) was founded in 1879, and had remained an active body
since that date. This organisation was to some extent the successor
of the old Swiss Union of Arts and Crafts (Gewerbeverein), which
had a rather precarious existence from 1843 t o x864 \
Several economic organisations connected with agriculture were
also established during this period : the Swiss Society of Agriculture
(Schweizerischer Landwirtschaftlicher Verein) in 1863; the Federation
r.t A ~_,v.,i^.-.—1 c„„;^i-:— ~t T ? - „ — u c — ; < - „ „ _ I „ . , J rc^„:nA

-..:—

culture) in 1881 ; an agricultural society in the Ticino in 1885 ; and
the Society of Swiss Agriculturists (Gesellschaft
Schweizerischer
Landwirte) in 1881. These organisations subsequently united, in
1897, to form the Swiss Peasants' Union (Schweizerischer Bauernverband). It would thus appear that immediately before 1887 the
workers' organisations, which suffered from dispersion and incoherence, were at a disadvantage as compared with the employers, whose
organisations were then beginning to assume definite shape 2.
Several of the employers' organisations mentioned above were in
receipt of Federal grants, intended to enable them to maintain
permanent paid secretariats, and to carry out their various purposes.
In view of this many workers were also in favour of the establishment
of a permanent secretariat subsidised by the central Government, and
the Grütli Society endeavoured to secure the acceptance of this
demand. The proposal was not rejected ; but Numa Droz, the Federal
1

E. Boss : " Gewerbeverein ", in REICHENBERG's Handwörterbuch,
Vol. II, p. 330.
* F A E N E R , op. cit., pp. 21-22.

346

FREEDOM OF ASSOCIATION

Councillor responsible, recommended in 1887 the establishment of a
permanent secretariat, not only for the Grütli Society but for Swiss
workers as a whole. It was obvious that any scheme of this kind
could only be successful if unity, shattered in 1880, were re-established ; and the Swiss Workers' Congress, which met at Aarau with
this object in view on 10 April 1887, thus owed its origin, to some
extent, to an official suggestion.
The Congress was attended by the representatives of nearly
100,000 persons, including members of the Grütli Society, of sickness
insurance funds, of Catholic associations, and of trade unions. Several
of the latter, particularly the watchmakers' union, were already fairly
powerful.
The principle of political and religious neutrality was adopted
in the course of the debates : the need was felt for the creation of a
workers' organisation for the defence of the economic interests of its
members, which would not seek to impose any particular form of
political, social, or religious doctrine. One of the leaders of the
Catholic movement, Gaspard Decurtins, declared 1 his readiness to
guarantee the support of his co-religionists on this understanding.
The Congress agreed upon the constitution of the new Swiss
Workers' Federation. Its main object was thus defined in Article 1 :
" Swiss workers' associations hereby agree to constitute an organisation known as the 'Swiss Workers' Federation', for the purpose
of ensuring the collective representation of the economic interests of
the Swiss working class. All societies composed, in the majority, of
Swiss workers, and representing their interests, shall, whatever their
political or religious views, be entitled to become members of the
Federation. "
The duties of the workers' secretariat were defined in the constitution, which also provided that the Federal grant could only be
employed for the payment of the permanent secretariat. It was also
decided that the official organs of the federation should be the
Griltlianer, the Arbeiterstimme, the Voix du Peuple, and any special
organs of the various federations and associations which subsequently
adhered to the central organisation.
The most important body affiliated to the new federation was the
1

" . . . I am with you in all social and material questions ; and all
Catholic workers are, like me, prepared to co-operate with you for the
improvement of the economic position of the working class. " Quoted
by FARNER, op. cit.,

p. 29.

SWITZERLAND

347

Trade Union Federation, which soon included a fairly large number
of smaller federations ; most of them, however, had only a limited
number of local sections, with a restricted membership. In 1888, the
Trade Union Federation included 25 different occupational groups;
most of the sections (62 out of 84), belonged to eastern Switzerland ;
and at that time trade unions only existed in 13 out of the 22
Cantons \ Vigorous efforts were made to obtain new members ; but it
is difficult, if not impossible, to estimate the membership of the
Workers' Federation at that time with accuracy. Approximate
statistics for 1894 show that the total membership of the federation
was 9,495. The following groups were the most numerous :
Members

Watchmakers' Federation
Swiss Compositors' Federation
Woodworkers' Trade Union
Metal Workers' Association

3,000
1,100
i>036
900

At the same date, on the side of employers, the Federation of
Arts and Crafts alone had a membership of almost 16,000, nearly
double that of the Trade Union Federation 2 .
Though labour unity had been apparently re-established at the
Aarau Congress in I<J<J", tue new workers' x'cucratiori consisted of
so many diverse elements, with divergent political and religious tendencies, that this unity was more apparent than real. Controversies
were destined to arise before long and to lead to its dissolution. These
will be described in Chapter II, since they resulted in Swiss trade
union organisation assuming its present form.

§ 2. — The Present Organisation of Trade Unions
T H E TENDENCIES AND PRESENT POSITION OF TRADE UNIONS

The principle of neutrality had been accepted at Aarau in 1887,
when the federation was reconstituted ; but a Catholic Workers'
Federation was created in the same year at the Swiss Katholikentag.
It was only in 1899, however, that the Christian Socialist movement
assumed appreciable importance ; and it developed mainly in eastern
1
3

HÜPPY, op. cit., p . 90.
Ibid., p p . 105-107.

34»

FREEDOM OF ASSOCIATION

Switzerland, particularly in St. Gall. Side by side with the earliest
workers' societies, which included members of both sexes, educational
clubs, sickness insurance funds, and co-operative societies of various
descriptions, a few real trade unions also sprang up. The movement
was inspired by the doctrines of the papal encyclical Rerum novarutn,
promulgated in 1891 by Leo X I I I .
In 1905 the movement extended to French Switzerland ; and the
French-Swiss Federation of Catholic workers was established in Fribourg in 1912. Protestant workers, on the other hand, in 1907, also
created an organisation, the Swiss Association of Evangelical Workers
and Employees {Schweizerischer Verband Evangelischer Arbeiter und
Angestellter), which had a membership of 3,443 in 1922 \
The
problem of religious and political neutrality had in fact been raised.
In 1898 a few militant workers endeavoured to unite the Griitli
Society and the Swiss trade unions in a single organisation of Socialist
tendencies. Greulich, however, was opposed to this, for he regarded
neutrality as essential tó the maintenance of a united front among the
workers 2 . And his views prevailed at the Lucerne Workers' Congress
in April 1899.
The conclusions of a committee appointed by the congress to
investigate the problem were published towards the close of that year.
It was stated that the Workers' Federation, its unions and sections,
" shall remain neutral as regards politics and religion. Any worker,
whatever his political or religious views, is therefore at liberty to
adhere to the federation. " Nothing contrary to this principle was to
figure in the statutory rules of the unions, or in their press
organs. The constitution of the central organisation was also modified
in this sense by the Winterthur Trade Union Congress in 1900. Fresh
controversies soon arose, however, between Christian Socialists and
other trade unionists of Socialist tendencies, and the Olten Trade
Union Congress was in 1902 again faced with the problem. It was
then decided to prohibit any discussion of political and religious
problems in the unions — political action in support of labour
legislation forming the only exception to this rule.

Evangelisch-soziale Warte, i May 1923.
Just before the Lucerne Congress in 1899 he issued a draft resolution
•where it was stated that : " A united vocational organisation, comprising
the great majority of the workers, can only be established on the neutral
ground of their common economic interests, to the exclusion of political
or religious opinions ". Quoted by HÜPPY, op. cit., p. 125.
a

SWITZERLAND

349

As the Christian Socialist movement was making considerable
headway, Greulich proposed at the Lucerne Trade Union Congress in
April IQ04 to grant autonomy to the Christian Socialist organisations
within the federation. But his proposal was rejected, and relations
between the federation and the Christian Socialists were subsequently
marked by lack of cordiality.
The Trade Union Federation at the Basle Congress in 1906
abandoned the principle of political neutrality; its constitution was
revised, and Article 2 was added, in which the class struggle is
specified as a regular means of action. Article 1, paragraph (1), of
the constitution as amended at the Lausanne Trade Union Congress
(13-15 September 1924) is as follows :
- Swiss trade union organisations, based on the principle of the class
war, shall constitute the Swiss Trade Union Federation and Central
National Organisation (Union syndicale suisse et la centrale nationale).
Too many divergent views were represented in the Workers'
Federation to allow of its continued existence. It succeeded in maintaining itself during the war, but was dissolved shortly afterwards,
a circumstance not unconnected with the general strike of 1918. The
event occurrsu axmost unperceptiuiy during 1919 anu 1920 ; ânu since
then a number of separate workers' organisations, in receipt of separate Federal grants, have taken the place of the former Workers'
Federation. The most important of these groups, which had always
played the leading part in the Workers' Federation, is the Swiss Trade
Union Federation (Union syndicale suisse), which is in receipt of the
largest Federal grant (55,000 francs), chiefly intended to defray the
cost of the permanent workers' secretariats *.
The second group consists of the National Federation of Independent Swiss Workers (Landesverband freier Schweizer
Arbeiter),
whose Organisation is based on the principle of political and religious
neutrality 2 , and which receives a Federal grant of 10,000 francs.
The Swiss Association of Evangelical Workers and Employees
receives a grant of 6,ooo francs ; and the Swiss Federation of Christian
Socialist Workers (Christlichsozialer Arbeiterbund der Schweiz) a
grant of 25,000 francs.
* The employers' associations are also subsidised by the Federal
Government : see p. 384.
3
In this connection see A. SAXER : Die schweizerische Gewerkschaftsbewegung der Gegenwart, mit besonderer Rücksicht auf die
Entstehung der freiheitlich-nationalen Richtimg. Berne, 1924.

350

FREEDOM OF ASSOCIATION

Lastly, there is au annual federal grant of 15,000 francs to the
Federation of Swiss Employees' Societies.
The above enumeration of the various federations existing at the
present time is sufficient to show the diversity of opinions prevailing.
The Swiss Trade Union Federation which constitutes the largest
group, in spite of the fact that Article 1 of its constitution provides
that its action shall be based on the principle of class war, has repeatedly affirmed its political and religious neutrality ; and frequent
controversies have arisen on this point between the federation and
other groups of opposite tendencies. A recent judgment of the Federal
Tribunal against the Bienne section of the Metal Workers' and Watchmakers' Federation (F.O.M.H.), one of the local federations affiliated
to the central federation, affirms that the latter is not a neutral body :
" It is not really neutral, as shown by the constitution of the
F.O.M.H. . . . Article 2 of which stipulates: ' in particular the federation shall prepare . . . for the abolition of class rule and the recovery of
the means of production by the workers. The defendant organisation
therefore accepts Socialist ideals, the desirability of socialising the
means of production, and affirms that its objects include the realisation of these reforms. From a political point of view, the defendant
association is not therefore really a neutral body, even though at
present its activities are confined to the defence of workers' interests
of a non-political character." x
This judgment has given rise to numerous protests in trade union
circles '.
In view of the fact that they are inspired by a general unity of
purpose, the various trade unions referred to nevertheless display
considerable differences ; and the question of the socialisation of the
means of production is one of the most important questions on which
workers differ. The trade unions constituting the various local federations affiliated to the Swiss Trade Union Federation are in favour
of the reform ; and Article 3 of the constitution of the federation
specifies : " The federation shall do all in its power to safeguard the
general interests of the affiliated federations and their members ; its
objects include the socialisation of the means of production, and the
abolition of class rule. These objects shall be attained by encouraging
the efforts in favour of socialisation, and by- educating workers in all
questions connected with Socialist organisation and economics."
1

Decisions of the Federal Tribunal (A.T.F.), Vol. 51, II, pp. 525-535.
See the articles by Mr. C. NAINF. in La Lutte Syndicale, 13 and 20
March IQ26.
2

SWITZERLAND

351

As stated above, the judgment of the Federal Tribunal against the
Bienne section of the F.O.M.H. was based on certain provisions in
the constitution of this federation, similar to those quoted above.
It has therefore been suggested in trade union circles that the deletion
of these provisions might be expedient.'
The doctrine of the class war and the proposals for socialising
the means of production are not accepted by all trade unionists. This
applies, for instance, to the Christian Socialist Workers, as is seen
from the constitution of their federation, Article i (2) of which
runs:
Er (der Verband) bezweckt, auf dem Boden des Christentums und
innert der durch Sittlichkeit und Recht gebotenen Staats- und Wirtschaftsordnung die geistige und materielle Hebung der arbeitenden Klassen im
Sinne eines gerechten sozialen Ausgleiches und der Ständeversöhnung '.
The Christian Socialist movement, moreover, aims at the reconciliation of employers and workers by the establishment of corporations of a new type described below 2 . In actual practice the widely
different doctrines professed by trade unions often compel them to
adopt divergent forms of action, although at times certain points of
common interest would incline them to act in concert. It should Denoted, in this connection, that no legal restriction exists preventing
trade unions from participating in political life. (See sections 53 and
60 of the Swiss Civil Code of 10 December 1907, and Article 55 of the
Constitution.)
The Trade Union Federation is independent of the Socialist Party.
In practice, however, the Trade Union Federation has often acted
in alliance with the Socialist Party; and the Swiss Federation of
Christian Socialist Workers, though in theory a non-party organisation, has sometimes co-operated with the Swiss Popular Catholic
Party, of which it has shown a tendency to constitute the left wing.
Organised workers have endeavoured to make their influence felt
in all political matters directly or indirectly affecting their interests ;
and even where political neutrality is provided for in their statutory
1
" The aim of the federation is to raise the intellectual and material
standard of the worker, based on the idea of a just social equilibrium and
the reconciliation of the classes, in accordance with Christian ideals and
in conformity with a social and economic order founded on morality and
justice. "
a
See p. 354.

FREEDOM OF ASSOCIATION

352

rules, trade unions are at liberty to support, or to oppose, any
legislative measure of a social or economic character, a point which
will be dealt with in detail subsequently 1.
The principal workers' organisations at present in existence are
as follows :
(a) The Swiss Trade Union Federation (L'Union
syndicale
suisse, Schweizerischer Gewerkschaftsbund).
Its headquarters are
at Berne, and, as stated above, its action is based on the principle
of the class war and the socialisation of the means of production.
The federation professes to be politically neutral, but its sympathies
are with the Socialist Party. It had a membership of 89,398 in 1913,
which rose to 223,558 in 1919 ; but had fallen to 149,997 (grouped
in 20 federations) in 1925, a decrease no doubt largely due to postwar industrial depression. Although the local federations include
ill the trade unions belonging to the same trade or occupation, the
federation also includes other organisations of a local character such
as workers' unions (unions ouvrières), or local trade union associations (cartels syndicaux locaux).
(fe) The Swiss Federation of Christian Socialist Workers
(L'Union
ouvrière chrétienne sociale suisse,
Christlichsozialer
Arbeiterbund der Schweiz); headquarters at St. Gall. The origin
and doctrines of this organisation have already been described; its
members are recruited mainly among Catholics, and it aims at the
defence of the interests of all those connected with the Christian
Socialist movement. This organisation also includes a Christian
Socialist Trade Union Federation, based on strictly occupational lines.
The confederation had a membership of 52,000 in 1924, 10,200 of
whom belonged to the Christian Socialist Trade Union Federation.
(c) The Swiss Association of Evangelical Workers and
Employees (L'Association suisse des ouvriers et employés évangéliques, Schweizerischer Verband evangelischer Arbeiter und Angestellter), with its headquarters at Seebach (Canton of Zurich). This
body had a membership of 3,443 in 1922 and 4,120 in 1925, grouped in
80 sections.
(d) The National Federation of Independent Swiss Workers
(L'Union syndicale suisse des ouvriers indépendants,
Landesverband
freier Schweizer Arbeiter), founded in 1919, with its headquarters at
St. Gall. This organisation aims at grouping workers' associations on
1

See p. 390.

SWITZERLAND

353

a basis of political and religious neutrality. It had a membership of
2,810 in 1925, grouped in 33 sections.
(e) The Federation of Swiss Employees' Societies (La Fédération des sociétés suisses d'employés, Vereinigung schxveizerischer
Angestelltenverbände).
Its organisation dates from 1918, and its
headquarters are at Zurich. It professes political and religious
neutrality ; and its chief adherents are recruited from the ranks of
commercial employees, bank clerks, the staffs of hotels and restaurants, technicians, etc. It had a membership of 43,318 in 1924.
(/) The Federated Union of Federal Employees and Public
Transport Employees (L'Union federative du personnel fédéral et des
entreprises publiques de transport, Föderativverband des eidgenössischen Personals und des Personals öffentlicher
Verkehrsanstalten).
Article 4 of its constitution provides for political and religious
neutrality ; and it aims at defending the professional, economic and
moral interests of its members. It had a membership of 62,235,
grouped in 17 sections, in 1923 ; of whom 46,936 in five federations,
however, were affiliated to the Swiss Trade Union Federation.
These are the principal central organisations of Swiss workers
and employees. According to the census of 1920, the number of
persons occupied as workers or employees in Switzerland (to the
exclusion of agriculture) was 996,560. In 1924 it was estimated that
271,237 employees and workers were affiliated to the central
organisations, or, in other words, some 25 per cent, of the total.
EMPLOYERS' ORGANISATIONS

There are three principal organisations of employers, exclusive
of the Peasants' Union :
(a) The Swiss Federation of Commerce and Industry (Union
suisse du commerce et de l'industrie, Schweizerischer Handels- und
Industrie-Verein),
with its headquarters at Zurich. As already
stated, this organisation was established in 1869 ; it is concerned
with the development of industry and commerce, and aims at
defending the interests of its members. It consisted of 90 sections,
representing nearly all branches of industry, in 1925.
(6) The Central Federation of Swiss Employers' Associations
(L'union centrale des associations patronales suisses, Zentralverband
sclnveizerischer Arbeitgeber-Organisationen).
This body, with its
headquarters at Zurich, was founded in 1908. Article 2 of its
constitution defines its aims as a concentration of employers' forces,

Freedom of Association

354

FREEDOM OF ASSOCIATION

with a view to maintaining a united front against the workers. The
federation included 33 associations in 1925, and its affiliated members
employed approximately 230,000 workers and 20,000 employees.
The great majority of important industrial undertakings are affiliated
to this organisation.
(c) The Swiss Union of Arts and Crafts (L'Union suisse des
arts et métiers, Schweizerischer Gewerbeverband), with its headquarters at Berne, is the central organisation, in which the sections,
representing artisans, small industrial employers, and retail traders
are grouped. It was established, as already stated, in 1879. It is
intended for the defence of the interests of its members, and aims at
facilitating relations between employers and employees. It included
82 occupational sections, with a membership of 75,411, in 1925 ;
together with 21 local or cantonal unions, comprising 55,028 members,
a total aggregate membership of 130,439.
These organisations are not in any sense rivals, but often cooperate. Certain occupational associations are also affiliated to
more than one of these federations. The chief difference is that
members of the first two federations are recruited chiefly among
large industrial and commercial employers, whereas the third
organisation is composed mainly of artisans and retail traders.
M I X E D ORGANISATIONS

A few mixed organisations also exist, comprising both employers
and workers. These include the Federation of' Workers and
Employers in the Basle Ribbon Industry (Verband der Arbeiter und
Arbeitgeber der Basler Bandfabriken) with its headquarters at Basle;
and the National Economic Union of Eastern Switzerland
(Ostschweizerischer Volkswirtschaftsbund),
with its headquarters at
St. Gall. The permanent secretariat established by this organisation
was, however, suppressed in 1924, and does not appear to have been
re-established.
Efforts have been made in Christian Socialist circles, particularly
in French Switzerland, to establish organisations comprising both
employers and employees : corporations in other words, which
have been defined as follows by one of the leaders of the movement,
the Abbé Savoy.
A corporation is formed by the union in the same organisation of the
three elements of the craft : labour, technical skill, and capital (or its
representative, the management). Each of these three elements works in
separate organisations, with its distinct individual life and its own
rules . .

SWITZERLAND

355

But the three associations, instead of remaining separate, form a joint
organisation, known as the professional council, which consists of
delegates from each group. This body represents the craft in its relations
with other trades and with the State, and is solely responsible for the
general administration of the craft representing as it does all its different
elements 1.
T h e W a t c h m a k e r s ' Corporation of the Franches-Montagnes
affords a practical example of this kind of organisation.
Article 2 of its regulations states that it aims, inter alia, at the
maintenance of h a r m o n y between members and at regular and loyal
co-operation for the purpose of establishing peace and social justice
within the craft. T h e corporation includes two members, the
employers' association and t h e workers' association.
T h e L a n d Corporation, w i t h its headquarters at Geneva,
comprising agriculturists, m a r k e t and other gardeners, and agricultural workers, m a y also be mentioned.
T h e corporative tendencies displayed by the French-Swiss
Federation of Catholic W o r k e r s (L'Union romande des
travailleurs
catholiques),
w i t h its headquarters at F r i b o u r g , led the Christian
Socialist Congress held there in May 1926 to decide on the creation of
a " corporation secretariat " at F r i b o u r g .

1
Abbé SAVOY : La corporation, son rôle et ses institutions,
Pamphlet, without indication of place or date of publication.

p. 4.

CHAPTER I I
THE CONDITIONS GOVERNING THE EXISTENCE
OF TRADE UNIONS

§ 1. — Legal Status
T H E FEDERAL AND T H E CANTONAL CONSTITUTIONS

The terminology relating to freedom of association in Switzerland is somewhat vague : nor do either of the terms " freedom " or
" right of association " (" Liberté syndicale, droit syndical ") occur in
the federal or the cantonal Constitutions, or in any specific legislative
enactment. The right to constitute a trade union therefore appears
to be simply one form of the general right of association and public
meeting, and is consequently subject to the general legal provisions
applicable in that respect.
The right of association, as already stated, is regulated by the
provisions of Article 56 of the Federal Constitution of 1874 (Article 46
in the Constitution of 1848), which provides that : " All citizens shall
enjoy the right to form associations, provided nothing in their objects
or methods is contrary to law or constitutes a danger to the State.
The measures necessary for the repression of abuses shall be enacted
by cantonal law ".
Switzerland is a federal State ; and the Cantons of which it is
composed still enjoy extensive political rights. They are to a certain
extent sovereign States, whose powers are only limited by the express
provisions of the Federal Constitution 1 ; therefore numerous cantonal

1
Article 3 of the Federal Constitution : " The Cantons are sovereign
so far as their sovereignty is not limited by the provisions of the Federal
Constitution and are entitled in that capacity to exercise all those rights
which have not been delegated to the federal authority. "

SWITZERLAND

357

Constitutions, which exist alongside the Federal Constitution, contain
provisions relating to the right of association. Six out of the 25
Cantons and semi-Cantons, however (Basle-Town, Basle-District,
Obwalden, Grisons, Ticino, and G e n e v a ) , have not found it necessary
to insert any provisions concerning the right of association in their
Constitution.
T h e relevant provisions in the various cantonal
dealing with the right of association are as follows :

Constitutions

Zurich. Constitution of i8bg. Article 3 : " The right of association,
the right of public meeting, and the right to express individual opinions
freely, in word or in writing are guaranteed. The exercise of these rights
is subject only to the limits imposed by common law. "
Berne. Constitution of 18Q3. Article 7c : " Associations and public
meetings, provided there is nothing in their objects or methods contrary
to law, can neither be restricted nor prohibited. "
Lucerne. Constitution
of 187s- Article 8 : " The inhabitants are
guaranteed the right of forming associations by the Constitution, provided
there is nothing in their objects or their methods contrary to law or
constituting a danger to the State. "
Uri. Constitution of 1888. Article 20 : " . . . (d) Freedom of the
Press, of association, of commerce, and of industry are, in conformity
with the Federal Constitution, guaranteed. "
Schwyz.
Constitution of 1876. Article 12 : " The right to form
associations is guaranteed, provided nothing in their objects or their
methods is contrary to law. "
Nidwalden.
Constitution
of 1913- Article
12 : " The right to
constitute associations is guaranteed, provided nothing in their objects
or their methods is contrary to law. The right of public meeting is also
guaranteed. "
Glaris. Constitution of 1887. Article 10 : " All citizens shall enjoy
the right to constitute associations, provided nothing in their objects or
their methods is contrary to law, or constitutes a danger to the State.
Legislative measures for the repression of abuses may be enacted. "
Zug. Constitution of 1894. Article 1 : " . . . The right of petition, of
association, and of public meeting are guaranteed. Any abuse of these
rights comes within the provisions of the criminal law. "
Fribourg. Constitution of 1887. Article 10 : " The liberty of the
Press, the right of petition, the right of association are guaranteed to the
extent specified by the Federal Constitution. "
Solothurn.
Constitution of 1887. Article 12 : In conformity with
the Federal Constitution, and in an application of its provisions, the
following are expressly guaranteed . . . (8) " the right of association.
Provisions of a general character involving a limitation of the above
right shall be enacted by the Grand Council. "
Schaffhausen.
Constitution of 187b. Article 12 : " The right of
association and the right of public meeting are guaranteed, provided
their exercise does not involve anything contrary to public morals or to
public order. "
Appenzell (Inner Rhodes). Constitution of 1872. Article 2 : " . . . The
following rights are guaranteed . . . together with the right of association
and of public meeting. "

358

FREEDOM OF ASSOCIATION

Appenzell (Outer Rhodes). Constitution of igo8. Article 16 : " The
State undertakes to guarantee the exercise of the right of public meeting
and association, in so far as this involves nothing contrary to public order.
The legal provisions and penal measures necessary for the repression of
any infringement of either of the above rights, or any abuse of the
exercise of these rights, shall be enacted by the Government. "
St. Gall. Constitution of 1800. Article 28 : " The right of association
is guaranteed by the Constitution. Measures necessary for the repression
of abuses shall be enacted by law. "
Aargau. Constitution of 1885. Article 18 : " . . . Furthermore the
right of association, the right of public meeting and the right of petition
are guaranteed. The exercise of these rights is only subject to the limits
imposed by common law, or by public morals. "
Thurgau.
Constitution of 186c. Article 13 : " The right of petition,
the right of association, and the right of public meeting are guaranteed.
The exercise of these rights is only subject to the limits imposed by
common law, or by public morals. "
Vaud. Constitution of 18S5. Article 8 : *' The right of association
is guaranteed. Meetings whose objects and methods are in no way
contrary to public order, or to public morals, cannot be subjected to any
restriction or prohibition. "
Valais. Constitution of 1907. Article 1 :" The right . . . of association
and of public meeting . . . are guaranteed. The exercise of these rights
is regulated by law, within the limits of the Federal Constitution. "
Neuchâtel.
Constitution of 1858. Article 11 : " Public meetings,
and associations, provided nothing in their objects or methods is contrary
to law, can neither be restricted nor prohibited. "
Most of the cantonal Constitutions which formally guarantee the
r i g h t of association do so, it will be noticed, in terms very similar to
those employed in the Federal Constitution. T h e only restriction to
the right of association is that neither the objects nor the methods
employed must be contrary to public policy, public morals, or public
order. Several cantonal Constitutions (Uri, Glaris, Zug, Appenzell
[Outer Rhodes]) explicitly provide that any sanctions against abuses
of these rights shall be enacted by law.
A preliminary question arises : what is the exact significance of
t h e term " citizen " used in the Federal Constitution?
Is the right
of association guaranteed to Swiss citizens alone, or is the term used
in an extensive sense, equivalent to " individual " ?
Both the Federal Council and the Federal Tribunal appear to
accept the former view, and have shown a tendency to adopt a
restrictive interpretation of the term. I t has been laid down b y the
Federal Council :
The right of association for aliens is not guaranteed by the Federal
Constitution ; associations of aliens shall, however, be permitted by the

SWITZERLAND

359

Confederation, provided their activities are not dangerous or contrary
to law '.
Some writers, however, have criticised this limitative interpretation of Article 56 ; and hold that its provisions apply to all persons
resident in Switzerland 2 .
Both the federal a n d the cantonal Constitutions impose certain
restrictions on freedom of association, and consequently on trade union
liberty : both t h e objects of the association and the methods employed
must be lawful. I t is obvious that the application of these principles
may give rise to n u m e r o u s controversies. W h a t is unlawful for an
individual is equally unlawful for an association ; certain acts, however,
only become punishable by law. if they are performed b y a group of
persons acting in common 3 .
T h e fact that an association is hostile to the Confederation, or to
the Cantons, is not, however, in itself a sufficient reason for taking
measures against it. T h e Federal Council has recognised that :
It is not a question whether the Confederation or a Canton actually
wishes to maintain or to suppress a given association, but whether there
is anything in the objects of the latter or in its methods contrary to
law, or constituting a danger to the State. Both associations of which
the State disapproves, and those which it regards with sympathy, are
entitled to support. If the maintenance or suppression of an association
were to be dependent, in any way, on its political views, or on the
sympathy or hostility of the federal or cantonal Governments, Article
46 (now Article 56) of the Federal Constitution together with those of the
various cantonal constitutions which guarantee the right of association,
would become a dead letter *:
T h e theory adopted b y the Federal Council in this connection is
therefore of great importance to trade unions.
It should be noted, in passing, t h a t the mere fact that a n
association professes objects which are contrary to those of the State
does not necessarily render it an unlawful body. If a group exists
which aims at changing t h e form of the G o v e r n m e n t , of the existing social organisation, or of the prevailing economic system,

F.F., 1853, Vol. II, p. 49Serge BONHÔTE : La liberté d'association en droit public fédéral
suisse, Neuchâtel, 1920, pp. 154 et seq.; W. BURCKHARDT : Kommentar der
schweizerischen Bundesverfassung,
2nd edition, p. 543 ; SCHOLLENBERGER : Grundriss des Staats- und Verwaltungsrechts
der schweizerischen
Kantone, p . 33.
3
BONIIÔTE, op. cit., pp. 182 et seq. ; Code pénal fédéral de ¡853,
Articles 45 and 46 ; Avant-projet de Code pénal fédéral, Articles 230 and
375 ; Articles 242 and 272.
* F.F., 1854, Vol. I, pp. 435-4302

36o

FREEDOM OF ASSOCIATION

its activities cannot in any way be restricted provided there is nothing
reprehensible in the methods adopted to attain this purpose. This
applies, for instance, to associations or trade unions which aim at the
abolition of private property, or the socialisation of the means of
production.
An association may, on the other hand, aim at raising wages or
securing a better regulation of the conditions of labour, objects which
are perfectly legitimate in themselves. Should this body, however,
employ unlawful methods for this purpose, it will be liable to prosecution. Generally speaking, strikes are regarded as a lawful method ;
and according to the prevailing interpretation of the Federal Tribunal 1 , black listing, refusal to permit workers to work for a certain
firm, boycotts, and strikes are generally regarded as lawful 2 . This
question will be discussed in greater detail at a later stage.
The decisions of the Federal Tribunal also tend to recognise the
lawful character of the efforts made by trade unions with a view to
grouping all the workers belonging to the same trade or occupation,
even if a certain pressure is exercised on employers and workers for
this purpose. " The ideal of trade unions " according to the Federal
Tribunal 3 ,-is " to overcome the opposition of employers and obtain
assurances from them that only union workers will be employed.
There is nothing reprehensible in this. "
T H E CONNECTION BETWEEN THE R I G H T OF ASSOCIATION
AND T H E R I G H T OF PUBLIC MEETING

Article 56 of the Federal Constitution, by which the right of association is guaranteed, does not contain any specific reference to the
right of public meeting. It is generally admitted, however, that the
recognition of the former implicitly involves a recognition of the
latter. As stated by Mr. Bonhôte : " . . . the right to unite may be
regarded . . . as the exercise of a primal form of human activity ; it
also constitutes a necessary manifestation of the right of the individual to submit himself to the rules of an association. Individuals
should therefore be guaranteed, by freedom of association, the right
to constitute permanent or temporary groups, not only of a legal but
also of a moral or psychological character. " *
1

A.T.F., 32, II, p. 370.
The interpretation of the law by the Federal Tribunal on this point
has, however, undergone an evolution, (see p. 367).
' A.T.F., 30, II, pp. 282-283.
s

BONHÔTE, op. cit., p. 113.

SWITZERLAND

361

A similar interpretation of Article 46 of the Constitution of 1848
has been given by the Federal Council on several occasions 1 : and
has also been adopted by the Federal Tribunal in numerous decisions.
.Several of these refer to the right of association and public meeting :
it is stated, for instance : " The right to engage in a distinct form of
public worship must not be confused with the right of association and
of public meeting, guaranteed in Articles 56 of the Federal Constitution and 8 of the Constitution of the Canton of Vaud. " 2
A study of the various cantonal Constitutions shows that the
right of association and the right of public meeting are frequently
referred to in the same Article and with the same limitations. This is
the case notably in Zurich, Berne, Zug, Schaffhausen, Appenzell
(Inner and Outer Rhodes), Aargau, Thurgau, Vaud, Valais, and
Neuchâtel 3 .
FREEDOM OF ASSOCIATION AND THK R I G H T OF T H E INDIVIDUAL
NOT. TO COMBINE

Individuals are guaranteed the right of combining by Article 56
of the Federal Constitution, and by the majority of the cantonal
Constitutions; while associations are free to pursue their activities,
provided their objects and methods are not unlawful. Associations
in general, and trade unions in particular, naturally aim at extending
their sphere of activity, and it is obvious that the latter can only
succeed in this if they comprise the great majority or practically all
of the workers belonging to the trade or occupation concerned. Some
of the workers, however, for personal, political, or religious reasons,
refuse to adhere to the trade union movement in general, or to join
a particular union ; thus conflicts inevitably occur between groups
aiming at universality, and individuals seeking to remain independent.
This is therefore one of the most important problems by which
both workers and employers at present are confronted and has two
distinct aspects : (1) Can individual workers be compelled to join a
trade union?
(2) Can they be forbidden to do so, or if already
members, compelled to resign ?
The answer naturally varies according to the political views and
1

F.F.,

For the decisions of the Federal Tribunal on this point see BON-

H Ô T E , op.
3

I86I, Vol.
cit.,

I, p.

323-

p p . 115-119.

See the relevant Articles quoted on pp. 357-358.

362

FREEDOM OF ASSOCIATION

tendencies prevailing among workers a n d employers. T h e courts,
particularly the Federal T r i b u n a l , have frequently been called upon
to settle disputes connected w i t h t h e problem ; and the interpretation
of the law adopted by t h e S u p r e m e Court on the point has varied.
W h a t are the main factors of the problem ?
T h e question a t issue was raised in one instance in a somewhat
special m a n n e r : namely, whether a municipality was entitled to
compel workers employed in its industrial services to join the trade
union in which these workers were grouped ? T h e commune of L,a
Chaux-de-Fonds issued regulations which sought to impose an obligation of this kind on the workers employed in its municipal services ;
b u t the Council of State of the Canton of Neuchâtel refused to sanction
these, and t h e case came before t h e Federal T r i b u n a l . T h e c o m m u n e ' s
plea was rejected by that body, w h i c h held that it is illegal to compel
a worker to j o i n . a trade u n i o n 1 . T h e Neuchâtel Council of State
h a d argued that compulsory affiliation was injust because :
The adoption of this system would involve setting aside the worker's
personal qualities (such as aptitude for work, intelligence, honesty, etc.),
which should be regarded as the determining factors in deciding whether
he is, or is not, to be employed ; a good worker might in consequence
be rejected simply because he refused to yield to pressure to join a
union. Such ostracism would be entirely contrary to democratic principles, and would obviously constitute a restriction on personal liberty.
There was nothing to show that the union in question would always
maintain an attitude of absolute political neutrality ; but a public
administration should keep entirely clear of politics. Were the trade
union to obtain official recognition, this would be tantamount to admitting
that labour enjoyed a sort of controlling power : it is obviously impossible, however, to tolerate the existence of a State within the State.
Both the central Government and the communes must be able to exercise
unquestioned authority over their employees, and must not be forced
to treat on equal terms with trade unions representing workers under
their orders. Finally, by refusing to sanction an arbitrary division of
citizens into two classes (those who deserve to be employed because they
are trade unionists, and those unworthy of this because they are not),
the Government is performing its duty, which is to safeguard individual
liberty ; and also applying the constitutional principle that public
employment is open to all citizens without distinction.
T h e Federal Tribunal admitted t h a t the decision of the
Council of State was constitutional ; a n d the judgment notes t h a t
the trade union in question was aiming, not at co-operating with the
authorities, but at defending the workers' interests.
But these
m i g h t be opposed to those of the municipality. F u r t h e r m o r e , the
union in question might be affiliated
to federations professing
1

A.T.F.,

40, Vol. I, pp. 272 et seq.

SWITZERLAND

363

doctrines contrary to those held by certain workers. The judgment
notes in conclusion that the right enjoyed by every individual,
under section 70 of the Swiss Civil Code, to withdraw from an
association, had been nullified, since leaving the union would
involve loss of employment.
Nor is it without interest, the Tribunal adds, to recall that the
question whether public officials and State employees have the right to
belong to a trade union still remains a matter of controversy in many
countries.
To sum up, the attempt by the municipality of La Chaux-deFonds to establish a sort of compulsory trade union, for a certain
specified class of employees at least, was frustrated.
Respect of freedom of association has been a matter of frequent
discussion and controversy in trade union circles. A campaign was
begun in 1891 with a view to obtaining guarantees on this point, and
Mr. Otto Lang demanded the insertion of provisions in the future
Federal Penal Code instituting sanctions against employers who
"sought to restrict or suppress their employees' rights in this respect 1.
An important debate on this subject took place in 1913 in the
National Assembly in connection with the discussion of the Factory
Act and Mr. Scherrer-Füllemsnn moved the insertion of a new
clause as follows : " Factory owners are prohibited from preventing
workers from exercising their right of association." In support of
his amendment the author of the proposal cited various abuses which
he alleged had taken place. A similar proposal had been made by
Mr. Studer, but he accepted that of Mr. Scherrer-Fiillemann.
Mr. .Schulthess, however, on behalf of the Federal Council, made
various objections to it, showing the difficulties connected with the
enforcement of provisions of this nature ; for employers are always
at liberty to discharge workers without giving their reasons, if this
is done in the required form after giving due notice.
The discussion lasted during two sessions and the proposed
clause was finally rejected, though a motion (postulat) requiring
the Federal Council to examine the question was adopted by 125
votes to one 2 . The problem still remains officially unsolved.
On the other hand, the action of the municipality of Zurich
1
Otto LANG : Das Vereinsrecht der Arbeiter in der Verfassung und in
der Wirklichkeit, 1891.
3
Bulletin sténographique officiel de l'Assemblée fédérale suisse, 1913,
PP- 565-576 and 843-861.

FREEDOM OF ASSOCIATION

m a y be mentioned.
Regulations concerning tenders, dated 26
F e b r u a r y 1914, contained a clause [21 ( d ) ] which aimed at protecti n g the freedom of association, as follows :
Establishments . . . whose action involves a violation of the right of
combination, or of the freedom of association of their employees and
workers, shall be debarred from tendering. Employees and workers,
however, whose action tends to violate the right of combination or freedom
of association, shall not be entitled to benefit from this provision.
T h e application of these provisions has involved various difficulties and has resulted in litigation a .
W h a t interpretation h a s the Federal Tribunal adopted in connection with the question of compulsory affiliation
to a
union, or prohibition to belong to one ? F o r a long time pressure
exercised to compel workers to adhere to a trade union, even if it
took the form of a boycott, was regarded as lawful ; and, in this connection, the j u d g m e n t s in the cases of Boujon and others v. StuckerBook 2 and Dros-Schindler
v. Bohner and Matthey 3 are of great
interest, as a few details regarding the latter will show.
T h e standpoint adopted by the Federal T r i b u n a l , before the
evolution to be described below took place, is well illustrated by the
j u d g m e n t in the latter case.
Relations between employers a n d workers in the engraving
industry a t La Chaux-de-Fonds were governed by a collective
agreement between the Federation of Decorators and the Federation
of W o r k i n g Engravers and Guillochers, providing t h a t both
employers and workers must be members of their respective unions,
failing which they would be liable to be blacklisted.
Employers
were prohibited from engaging blacklisted workmen, and workers
from working for blacklisted employers. An a d d e n d u m to the
agreement also existed, dated 27 A u g u s t 1899, providing t h a t
employers undertook not to engage any apprentice engraver or guillocher before 1901. I n spite of these provisions, a certain Mrs.
Droz-Schindler was engaged as an apprentice. She was ordered by
t h e trade union t o cancel her agreement, b u t refused to d o so, on the
ground that employment is free ; and she subsequently b r o u g h t an
action against the union alleging t h a t the latter had compelled her
employer to discharge her, and had also prevented her from obtaining

Revue syndicale suisse, 1917, pp. 24-25.
A.T.F., 25, II, pp. 792. et seq.
» A.T.F., 30, II, pp. 271 et seq.

365

SWITZERLAND

employment elsewhere — measures, which she alleged, were illegal.
T h e Federal Tribunal, in its j u d g m e n t , recognised the legitimacy of
trade union organisations :
All workers, whoever they are, have a legitimate interest in bettering
their lot, by hiring their services to the best advantage and restricting
competition in their own trade or occupation to a minimum. And the
formation of associations, or trade unions, is, under modern economic
conditions, the most effective method of attaining this object. Trade
unions which include the whole or a considerable percentage of the
workers employed in a common branch of. industry tend to become the
natural and normal representatives of these workers, who are known as
union workers, in all questions connected with conditions of labour. The
object of all trade unions is, with a view to restricting competition, to
induce employers to agree that only union workmen shall be employed.
There is nothing reprehensible in this ; and employers may find it to
their advantage, if it enables them, for instance, to obtain guarantees
that union workers possess a minimum standard of vocational aptitude,
and that workmen will only be admitted to membership of a trade union
after proving that they possess the necessary qualifications.
T h e Federal Tribunal further notes t h a t the E n g r a v e r s ' Union
attempted to monopolise employment for its members, to prevent
the training of new apprentices, and, in consequence, t o exclude
certain persons from this trade :
There is nothing in these objects contrary to public policy, or which
constitutes a violation of the plaintiff's legal rights. Economic life is
based, under present conditions, on the principle of freedom ; freedom
may involve a de facto monopoly . . . By combining for the purpose of
enforcing their common aims, the engravers and guillochers of La Chauxde-Fonds have not violated any right guaranteed by law.
T h e judgment concludes :
. . . It follows from what has been said above that agreements, similar
to the one concluded between the employers' and workers' organisations
in this case, are lawful, and are binding on those members who have
adhered to them of their own free will, as long as public order is not
threatened, or third party rights protected by law violated. Therefore,
it cannot be maintained that employers are not legitimately entitled to
enter into an agreement restricting their liberty to engage individual
workers . . . There is nothing either in the professed objects of the
Federated Union of Engravers and Guillochers of La Chaux-de-Fonds, or
in the provisions of the agreement concluded between this body and the
employers' organisation, contrary to public policy, or constituting a
violation of any legal right enjoyed by the plaintiff.
T h e Federal Tribunal reverted to this question in a j u d g m e n t
dated 7 July 1911 *, and n o t e s :
The interpretation adopted by the Federal Tribunal on this subject
has not varied : it has always been recognised, and rightly so, that the
1

A.T.F.,

Richard and others v. Société de Fabricants
37 vol. II, pp. 380 et seq.

de cadrans

d'émail,

366

FREBDOM OF ASSOCIATION

so-called " right to.work " does not exist and, in consequence, that every
employer is at liberty to refuse to engage a worker, and that several
employers may legitimately agree together for • reasons of common
interest not to employ a certain worker ; such an agreement, though
lawful in principle, may, however, become unlawful owing to the objects
pursued, or- the methods employed, should it, for instance, involve
entirely depriving workers of their means of livelihood and thus
threatening their very existence. This interpretation takes economic
necessities, and the protection to which human beings are legitimately
entitled, adequately into account. . . .
T h e passage contains one qualification, however, for the Federal
Tribunal recognises that to deprive any person completely of their
means of livelihood might constitute an unlawful act.
I n a decision dated 5 December 1914 \ the Federal T r i b u n a l
laid special stress on this point. T h e fundamental question, accordi n g t o the views of the Federal T r i b u n a l , is w h e t h e r a boycott is a
weapon for the protection of legitimate vocational interests, or
w h e t h e r it is contrary to public morals and public policy, whether
the means adopted to enforce it are lawful, or unlawful ; and whether
the social existence or t h e economic personality of the person
boycotted are threatened b y t h e exercise of this weapon ?
Similar issues are raised in the Federal T r i b u n a l ' s decision in
the case of Belet v. the Tribunal cantonal Vaudois, dated 24 March
1923, where some workmen endeavoured to compel the discharge of
a non-union workman by threatening to strike. T h e Federal T r i b u n a l
in this connection states :
This method may be criticised, and it may be said that, though
union workmen were justified in this case in seeking to persuade Belet
to act with them, they were not entitled to use force, either directly or
indirectly, for this purpose, or to punish him if he refused to submit
to their will.
And further :
It is therefore a question, in the present state of the law, whether
either freedom of association or the right of combining may be exercised
in such a way as to endanger individual liberty, or in other words,
whether trade unions are entitled to exert pressure on individuals by
compelling the latter by threats (e.g. loss of employment) to adhere
to a group whose views they do not share. . .
But in spite of these reserves, the Federal Tribunal upheld the
judgment of the Tribunal of the Canton of V a u d , rejecting Belet's
claim.
1

Feller v. Spenglerr,ieistei~verband

A.T.F.,

40, II, pp. 619 et seq.

(Master Tinsmiths' Federation),

SWITZERLAND

367

The latest decision of the Federal Tribunal on the matter appears, however, to indicate a certain change of attitude ; and is apparently based on section 41 of the Federal Act completing the
Swiss Civil Code (Book V : " Law of Obligations") of 30 March
1911 :

Any person causing damage to another in an unlawful manner . . .
shall be liable to make good the damage. Any person who unintentionally
causes damage to another by any act contrary to general usage shall
also be liable to make good the damage.
The decision in this case, moreover, appears to be inspired by the
new doctrine recently expounded by Messrs. Hofstetter-Leu 1 ami
Virgile Rössel 2.
The latter writes : " It would . . . be rational. . . t o declare
that a boycott is unlawful whenever the useful purpose it serves is
appreciably less than the damage caused. " It may be interesting to
note that Mr. Rössel, a Federal judge, was attached to the second
section (Civil Law) responsible for the decision cited below, which
constitutes a new departure by the Federal Tribunal in this matter.
This was the case of E. Joder v. the Federation of Swiss Metal
Workers and Watch Makers (Bienne Section) (decision of the
Federal Tribunal, 26 November 1025) 3 . We shall quote freely
from this decision, in view of its importance.
Joder belonged to the Swiss Association of Evangelical Workers
and Employees, and was engaged as a fitter by the firm of Bill and
Company, of Bienne ; his comrades endeavoured to force him to
join the Bienne Section of the F.O.M.H., affiliated to the Swiss Trade
Union Federation, but Joder refused. His comrades then gave him
a time limit for joining, in default of which the remaining workers
threatened to give collective notice. Joder still refused ; and as a
result of the threats of the other workers to cease work, his employer
ended by discharging Joder, recognising, however, that he had no
grounds of complaint against him. Joder was discharged on 14
January, 1925, and was unable to obtain employment elsewhere. He
then brought an action in the Berne Cantonal Court of Appeal
1

HOFSTETTER-LEU : Der Boycott nach schweizerischem
Especially
pp. i n et seq.
2
V. RÖSSEL : Manuel du droit fédéral des obligations, 2nd ed.,
p. 396.
3
A.T.F., 51, Vol. 2, p. 525-535 ; see also the French translation
decision (from which we quote) in the Journal des tribunaux et
judiciaire, 1926, pp. 81 et seq.

Recht.
Vol. I,
of this
Revue

3ò3

FREEDOM OF ASSOCIATION

against the Bienne Section of the F . O . M . H .
court to :

T h e plaintiff asked the

(i) Declare that the decisions, measures, and other acts committed
by the defendant association, aimed at the plaintiff in his capacity as a
workman employed by Bill, were illegal, and should be annulled.
(2) Condemn the defendant association to pay the plaintiff a certain
sum, to be determined by the judge, by way of moral and material
damages.
On 25 J u n e 1925, t h e Berne Court of Appeal rejected the
plaintiff's claim. Joder appealed against this decision to the Federal
T r i b u n a l , which allowed the appeal, reversed the decision of the
Berne Court of Appeal, and referred the case back to the cantonal
court for a fresh trial. T h e main reason given in this j u d g m e n t are
as follows.
I n the first place it is obviously the Bienne Section of the
F . O . M . H . and not the Central Federation, which is the responsible
p a r t y , as the former enjoys legal personality under its constitution
(sections 60 a n d 61 of t h e Swiss Civil CodeJ ; and t h o u g h the
Bienne Section maintained t h a t it was not responsible, because the
secretary had acted in his personal capacity, the Federal T r i b u n a l
rejected this, claim, o n t h e g r o u n d t h a t the latter was simply a
regular official of the u n i o n .
T h e Federal T r i b u n a l w e n t on t o declare t h a t Joder did in fact
lose his job as a result of the action taken by the Bienne Section of
the F . O . M . H . :
Whether this is an unlawful act or not must be determined on the
same principles as those applicable to boycotts. The act per se of depriving
a person of his job is not unlawful, since the law does not grant the
individual a right to utilise his working capacity in perfect freedom.
An act of this kind may, however, become unlawful and give rise to a
claim for compensation ; this is the case when such an act is contrary
to general usage, either because the objects pursued and the methods
employed are contrary to general usage, in other words, the rules observed
by just and equitable persons even in the economic struggle for life, or
because the methods employed have caused injuries to the person
discharged to a degree entirely disproportionate to the utility for the
person by whom the act in question was committed.
As regards the objects aimed at, these must be regarded as contrary
to the general usage if they appear as immoral per se. . . .
The lower court saw nothing immoral in the act, in view of the fact
that workers employed in an undertaking have a legitimate interest in
preventing the fact that they all belong to the same organisation being
undervalued. This, they claim, prevents difficulties from arising among
the workers as the result of belonging to different unions ; while it
also constitutes the sole method by which their demands can be enforced
by common action. It cannot he denied that interests of this kind, which
aire per se neither unlawful nor contrary to custom, exist in this particular case. The question therefore arises whether, supposing the

SWITZBRLAND

369

defendant organisation had been politically neutral, the pressure exercised
on the plaintiff to force him to quit his employment should be regarded
as unlawful because its purpose was morally reprehensible. But the
defendant organisation does not claim to be a neutral body in this sense,
as is shown by the constitution of the Central Federation, which applies
equally to the Bienne Section, and section 2 of which reads :
" The association aims at safeguarding and developing the intellectual
and material interests of its members, and at preparing, in conjunction
with the international proletariat, the taking over of the means of
production by the workers, and at the suppression of class rule. "
The defendant organisation therefore professes Socialist aims, namely,
the socialisation of the means of production, and its constitution indicates
that the preparation and realisation of this reform are one of the objects
of the association.
. I n the circumstances, action by the defendant organisation
which aims at compelling the plaintiff, by threats of losing his job, to
adhere to the federation, although the plaintiff does not share its political
opinions, would not be in accordance with general usage ; for political
views should only be propagated by persuasion, by free discussion, and
by enlightening the people
Even were it proved that the pressure exercised was not unlawful
(the Federal Tribunal continues) it must be regarded as contrary to
general usages, in view of the fact that the prejudice to the plaintiff's
individual interests was quite disproportionate to any advantage which
the defendant organisation sought to obtain. . . It is contrary to general
usage, and therefore unlawful, to aim at sacrificing unscrupulously,
and for private interests which are proportionately less important, the
interests of others that are of a more precious and vital character. The
interests of the defendant association in this case were negligible, apart
from the question of political views... The defendant organisation could
not allege, or bring forward any relevant fact to show, that the piaiutîfî
would have acted in manner contrary to the material interests of the
defendant organisation, or of its members. It is improbable that Joder
would ever have sought to oppose the demands of his fellow-workers.
In these circumstances, it cannot be held that the interests of the
defendant organisation were either equivalent or superior to the plaintiff's.
The mere possibility that Joder, if he refused to join the federation, would
not participate in any action by the defendant organisation, or would
oppose it, does not entitle the latter to take steps of such a decisive
character as those which caused the plaintiff to lose his job, particularly
at that particular time.
T h i s judgment naturally led to acute controversies, particularly
between the adherents of the Swiss T r a d e U n i o n Federation, a n d
those of the Christian trade unions \
Some of t h e leaders of t h e
T r a d e Union Federation have suggested that the words referring to
the socialisation of the m e a n s of production, which occur in i t s
constitution, should be deleted. T h e late Mr. C. N a i n e , a Socialist
member of the National Council, commenting on the j u d g m e n t ,
writes :

See a series of articles in La Lutte Syndicale and in L'Action
in 1926.

Freedom of Association

Sociale

FREEDOM OP ASSOCIATION

370

It can scarcely fail to scandalise, not only the tens of thousands of
adherents of the F.O.M.H., but also thousands of other workers belonging
to trade unions with similar rules, who have always shown their determination to keep unions clear of politics.
And elsewhere :
To allege that an association which aims at socialisation is therefore
a political body is to be guilty of confusing political and social questions '.

§ 2. — The Conditions under which Trade Unions Exist
CONSTITUTION AND R U L E S

The right to form associations is recognised by Article 56 of the
Federal Constitution " provided nothing in their objects or methods
is contrary to law, or constitutes a danger to the State ".
And par. 3 of section 52 of the Swiss Civil Code provides that :
" Companies and undertakings whose objects are unlawful, or
contrary to public morals, cannot acquire legal personality. "
Subject to the above limitation, trade unions enjoy a wide
liberty with respect to their constitutions. In the case of occupational unions, in other words, associations which exist solely for the
defence of the professional interests of their members, the simplest
and most suitable form of legal constitution is that for associations as
defined in sections 60 et seq. òf the Swiss Civil Code. It is only
necessary to discuss the rules of law applicable to this special form
of corporative organisation ; and it is sufficient to indicate the
minimum requirements which are imposed by law as conditions on
which the creation and legal existence of trade unions of masters or
workmen depend. It is true that employers' organisations, owing to
the fact that their interests are mainly economic, are generally constituted not in-the form of ordinary associations as defined by sections
60 et seq. of the Swiss Civil Code, but usually in the form of cooperative societies as defined by sections 678 et seq. of the Federal
Code of Obligations. And co-operative societies of this kind are
therefore subject to other legal provisions than those which apply to
the right of association. The great majority of trade unions (workers'
organisations) however, have been constituted in the form of associations within the meaning of sections 60 et seq. of the Civil
Code ; and only a few of these organisations, mainly of minor
1

La Lutte Syndicale, 20 March 1926.

SWITZERLAND

371

importance, have shown a preference for the co-operative form of
organisation. Section 60 provides :
Political, religious, scientific, artistic, or charitable associations and
those formed for purposes of recreation, or other purposes, whose aims
are not of an economic character, acquire legal personality as soon as
the intention to organise themselves on a corporate basis has been
explicitly expressed in their constitution.
The latter shall be drafted in writing ; and the aims, financial
resources, and organisation of the association clearly specified therein.
Associations of this kind can, if they desire, be entered on the
commercial register ; but this is not compulsory. Section 61, par.
1, of the Swiss Civil Code stipulates : " Any association, after the
adoption of its constitution and rules, and the appointment of the
officers, may be registered on the commercial register. " This provision should be read in conjunction with the two first paragraphs
of section 52 : " Companies organised on a corporate basis .
can acquire legal personality by registering on the commercial
register. Associations whose aims are not of an economic character
are exempt from this formality . . . "
Associations which have already acquired legal personality
" can acquire all the rights and assume all such obligations as are
not inseparable from the nature of man, for example, sex, age,
relationship " (Swiss Civil Code, section 53).
Associations which have acquired legal personality can exercise
all civil rights, as soon as the machinery required by law has been
set up (ibid., section 54).
Associations of this kind do not require any special concession
from the public authorities to acquire legal personality ; nor are they
subject to public control, except if legal action has been taken by one
of the parties affected. The above provisions apply to all types of
association which are not carried on for gain ; and trade unions are
included in this class.
Other types of association exist, which do not enjoy legal
personality, and these are assimilated to partnerships under the
Swiss Civil Code (section 62), which lays down : " Associations
which cannot acquire legal personality, or have not yet done so, are
assimilated to ordinary partnerships ".
As regards the conceptions of " combination " and " right of
combination ", a work recently published by the Federal Department

372

FREEDOM OF ASSOCIATION

of Public Economy as the result of a decision of the Federal Council 1 gives the following definition :

Combinations of workers are intended in practice to secure the
enforcement of living and working conditions in conformity with the
workers' interests, particularly as regards hours of labour and wages.
The methods employed by such combinations for achieving their aims
and overcoming the opposition of employers include, should the necessity
arise, strikes (cessation of work) and boycotts (blacklisting an undertaking). The right of combination therefore consists in the right of
constituting groups of this kind, and employing such methods.
T h i s definition is, however, incomplete, since it makes
mention of trade unions of masters.

T h e Swiss Civil Code makes n o distinction between employers'
and w o r k e r s ' organisations, or between the simpler forms of association, such as trade unions, and t h e more complex ones, such as
federations, or other groups of trade unions. All these different
t y p e s of organisations frequently stipulate in their rules t h a t they
are organised on a corporate basis, in accordance with section 60 of
the Swiss Civil Code.
T r a d e unions do not require a n y previous authorisations before
they can be constituted ; nor can a n y preventive measures be taken
against t h e m :

Cantonal legislation (says the Federal Council) must confine itself
to repressing abuses connected with the right of association ; no preventive measures of any kind can be enacted, nor must measures aimed
at the repression of abuses go beyond their ostensible purpose. The
formation of associations cannot by law be made to depend on Government authorisation, nor can any restrictions, incompatible with the free
exercise of the right of association within the limits of the Constitution,
be imposed *.
No form of registration is required ; nor is it necessary to
publish the constitution and rules of a n association. T h i s question
was discussed in the F e d e r a l Parliament in connection w i t h t h e
Civil Code ; and the question was raised whether it was desirable
to compel associations to publish information concerning their
creation in the official organ of t h e Canton. T h e Federal Legislature

1
La Suisse Economique et Sociale, Vol. I, p. 570.
» F.F., 1853, Vol. H I , p. 145.

SWITZERLAND

373

did not accept this proposal 1, consequently " publication is not
required before an association can be constituted, or can acquire
legal personality " 2 .
T h e r e remains the question of inscription on t h e commercial
register ; b u t , as already stated, this is optional for associations
whose a i m s are not of an economic character.
A Genevese Act of 26 March 1904, concerning rates fixed by
agreement between employers a n d workers, however, stipulates t h a t
only trade unions-(either of masters or w o r k m e n ) which have been
inscribed on the register of commerce, a n d whose constitution a n d
rules have been approved by the Council of State, are entitled to
participate in fixing rates in this manner. These provisions were
attacked by t h e Genevese W o r k e r s ' Federation ; b u t t h e Federal
T r i b u n a l recognised t h a t the proposed measure was n o t contrary
in a n y w a y to t h e provisions of Article 56 of the Federal Constitution.
T h e A c t in question does not compel trade unions to register, nor
to submit their constitution and rules for approval ; it merely
provides t h a t the r i g h t to participate in the fixing of rates is confined
to those unions which have complied with these formalities ; a n d
trade unionists remain at liberty to act as they please ; if they fail to
comply with these provisions, they merely deprive themselves of
certain special rights granted b y the Act 3 . T h i s Act, however, is
no longer applied.
T h e question of preliminary authorisation a n d of registration
h a s given rise t o a good deal of theoretical controversy, a n d t h e
views expressed differ considerably *.
Finally, w e m a y note that no legal provisions e x i s t ' i n Switzerland requiring associations t o deposit a copy of their constitution
and rules, or to give notice of any modifications of the latter 5 , n o r
is a n y form of official recognition necessary.
T r a d e unions, a n d other associations, are n o t subject t o a n y

V. RÖSSEL and F . H. MENTHA : Manuel de droit civil suisse, Vol. I,

p. 121.
' Ibid.,
s

p. 120.

A.T.F.,

26, I, pp. 318 et seq. See the discussion on this point in

BONHÔTE, op. cit., pp. 144-145.

* W. BURCKHARDT : Kommentar der schweizerischen
Bundesverfassung vom 2ç. Mai 1874, 2nd ed., p . 542 ; SCHOLLENBERGER : Bundesverfassung der schweizerischen Eidgenossenschaft, Kommentar, 1905, p . 417 ;
BONHÔTE, op. cit., p p . 245-246.
* BONHÔTE, op. cit., p p . 242, 243, 245.

374

FREEDOM OF ASSOCIATION

special form of supervision or control ; and Article 56 of t h e Constitution does not, according to Mr. Bonhôte 1, " authorise the police
authorities to exercise any special form of supervision over associations a n d public meetings, a n y ' Vereinspolizeirecht"
involving
preventive measures ".
Associations, in other words, are only subject to the same k i n d
of supervision and control as individuals ; nor are they liable to
financial supervision. As already pointed out, associations, whose
a i m s are not of an economic character, " acquire legal personality a s
soon as they have clearly expressed their intention of organising on
a corporate basis " 2 ; while inscription on the register of commerce
is not compulsory. T h i s h a s been explicitly recognised b y t h e
Federal Tribunal :
Associations whose aims are of an ideational character, and which do
not engage in any form of industrial or commercial activity for this purpose, acquire legal personality, independently of inscription on the register
of commerce, as soon as the intention to organise on a corporate basis has
clearly been expressed in their constitution *.
But though t h e aims of an association are not economic, this
does not prevent it from committing economic acts ; a n d Messrs.
Rössel and M e n t h a , in a commentary on section 60 of the Swiss
Civil Code, write 4 :
It is true that associations are not fundamentally incapable, according to the intention of the law, of committing acts of an economic
character, contracting debts, acquiring movable or immovable property,
becoming parties to leases, etc.; but acts of this kind should only aim
at contributing to the intellectual or moral objects of the association. . .
T r a d e unions are therefore at liberty to receive gifts a n d legacies,
a n d can own immovable property 5 .
On the other hand, trade unions have a wide contractual
capacity ; and section 53 of the Civil Code stipulates that " legal
persons can acquire all t h e rights and assume all such obligations as
are not inseparable from the nature of man, for example, sex, age,
1

BONHÔTE, op. cit., pp. 241-242.

Civil Code, section 60.
3
Joder v. the Bienne Section of the F.O.M.H.,
Vol. 51, II, p. 528.

26 Nov. 1925,

A.T.F.,

* Op. Cit., p . 121.

"The Swiss Railway Workers' Federation, for instance, owns two
buildings at Grubisbalm (Rigi), and Brissago (Ticino) where members
can rest and recuperate ; see Leo MANN : Der Schweizerische
EisenbahnerVerband, pp. 66-68. The Schweizerische Werkmeisterverband
also owns
house property at Zurich.

SWITZBRLAND

375

or relationship " ; while section 54 says : " Legal persons can
exercise their civil rights as soon as the machinery required by law
and by their constitution for this purpose has been set up. " Finally,
section 55 lays down : " The will of legal persons is- expressed by
the machinery set up for this purpose ; and they are bound by the
legal acts or by any other action of their officials. Furthermore,
members of the association are personally liable for any tortious act
committed by them. "
The Federal Tribunal, in the judgment already referred to, laid
down in 1925 that the Bienne Section of the F.O.M.H. was liable in
respect of the acts of its secretary l.

INTERNAL ORGANISATION

Within the limits specified by law, trade unions are at liberty to
organise as they please. Their constitutions generally contain rules
governing admission to membership, the administration of the association, its finances, aims, expulsion of members, dissolution, etc.
As regards admission, the rules sometimes explicitly provide
that only members of a specified occupation or calling are eligible
for membership ; some, however, admit persons belonging to different trades or occupations, if they are united by common political
or religious views (e.g. Swiss Association of Evangelical Workers
and Employees, section 7, etc.) Certain central associations only
accept unions or federations as members, and this is the case both
with the Central Federation of Swiss Employers' Associations and the
Swiss Trade Union Federation.
Others admit both persons and bodies (such as institutions,
authorities, or trade unions of masters) to membership (Swiss Union
of Arts and Crafts, section 2).
Generally speaking, nationality is not a determining factor in
this respect ; but age is sometimes taken into account. The Swiss
Compositors' Federation, for instance, only admits members under
40 years of age (section 5), a provision obviously connected with
the question of trade union insurance. Most of the federations
affiliated to the Swiss Trade Union Federation admit both male and
1
A.T.F., Vol. 51, II, pp. 528-529; Journal des Tribunaux, 1926,
pp. 81 et seq.

FREEDOM OF ASSOCIATION

376

female members ; and in 1924, only four out of 18 federations were
confined to male members \
Admission to membership is a matter for the general meeting to
decide, under section 65 (1) of the Swiss Civil Code which stipulates:
" The general meeting is competent to decide on the admission or
exclusion of members . . . "
Section 71 provides as regards contributions :
Contributions shall be fixed by the constitution. In the absence of
statutory rules to this effect, the members of the association shall
contribute equally to the expenses connected with the corporate objects
of the association, or involved by the payment of its debts.
Section 73 adds :
Members who resign or are expelled lose their rights to the corporate
property of the association. They are liable for a part of their contribution proportionate to the time during which they have been members.
It is obvious that contribution rates vary considerably from union
to union. The Trade Union Federation levied 6,062,526 francs by
way of contributions in 1924 2. Individual contributions from
members of the various affiliated federations varied in that year from
12.63 francs for homeworkers in the textile industry, to 197.39
francs for compositors 3 .
Contributions in certain employers' federations are calculated
proportionately to the business turnover of members (Swiss
Contractors' Association, Article 20).
Members can generally be expelled for non-payment of their
contributions.
Penalties on members who contravene the association's rules are
in some cases imposed; and both employers' and workers' organisations generally stipulate in what cases fines may be inflicted.
The attitude of the courts with regard to refusal to pay fines
imposed by associations on their members are illustrated by the following cases. The Civil Court of Geneva, in a judgment dated 18
October 1913, confirmed a fine imposed by the Genevese Paper
Hangers' Association on one of its members. The court also held
that the association was entitled, under its constitution, to require
manufacturers to cease supplying members who failed to comply
1

Appendix to No. 9 of the Revue syndicale suisse, 1925, p. 11.
Ibid., p. 12.
* Ibid., p. 13.
2

SWITZERLAND

w i t h provisions of the rules freely accepted by t h e m 1. I n another
case, decided by the Federal T r i b u n a l , on 4 J u n e 1926, a conductor,
belonging to t h e Chambre Syndicale des Artistes et Musiciens
de
Genève, refused to pay a fine imposed by the council or committee
of that organisation. T h e case was b r o u g h t before the Civil Court
of Geneva, and the conductor was condemned to pay the fine. H e
appealed to the Federal T r i b u n a l which says in this j u d g m e n t 2 :
This does not imply that the decisions of an association to inflict a
fine on one of its members are necessarily executory. Decisions of this
kind cannot be assimilated either to a penal judgment, since the persons
from whom they emanate have no public character, nor even to' the
award of an arbitrator, since the latter is intended to decide the merits
of contested claims ; and that, as regards fines, an association only
becomes the creditor of the member who is at fault in virtue of the
decision itself. The power to inflict fines is based exclusively on the
constitution, in other words, on an agreement of a private character, and
it therefore follows that, should the legitimacy of the association's claim
be disputed, the question at issue can only be settled by the courts.
Another form of penalty often inflicted on members consists in
expulsion. Section 65 of t h e Civil Code lays down : " T h e general
meeting is competent to decide on the admission or expulsion of
thembers . . . " ; while section 72 says :
The constitution may specify for what reason a member may be
expelled ; expulsion may also be authorised without any reason being
given. In the latter case, the reasons for which it was decided to expel
a member cannot give rise to an action at law. If the constitution is
silent on the point, a member can only be expelled by a decision of the
association and for valid reasons.
Associations therefore enjoy considerable latitude u n d e r t h e
Civil Code as regards expulsion of members ; b u t a decision of t h e
general meeting is required.
T h e constitution of most employers' a n d workers' organisations
specify the cases in which members may be expelled ; and t h e list
is often a long one (e.g. section 20 of the statutory rules of t h e
Swiss Compositors' F e d e r a t i o n ) .
T h e courts have sometimes been called upon to deal with cases of
expulsion ; and the Civil Court of Geneva, in its j u d g m e n t of 18
October 1913 3 , already referred to, recognised that t h e expulsion of
a member b y the Paper H a n g e r s ' Association was lawful.

Semaine Judiciaire, 1916, p. 551.
' A.T.F., Vol. 52, I I , p . 753
See p. 376.

37»

FREEDOM OF ASSOCIATION

I n another case H e n z i , a member of the communal employees
trade union of Bienne, was expelled for breach of trust in accordance
w i t h Article 8 of the statutory rules ; b u t the Bienne Court, on 28
M a r c h 1924, annulled the measure.
T h e union appealed to the
Cantonal Appeal Court at Berne ; and failing to obtain satisfaction,
to the F e d e r a l Tribunal, which upheld its claim.
The judgment
says :
According to section 72, par. 3, of the Swiss Civil Code, a member of
an association can only be expelled, if the constitution does not otherwise provide, for valid reasons ; and it is for the court to decide whether
the measure is legitimate. But if the reasons for which a member may
be expelled are specified, no action against expulsion can be brought
for any of these reasons, under section 72, par. 2, of the Civil Code. This
is also the case where the constitution provides for expulsion without
any reason being specified. The intention of the legislator . . . was to
organise associations so as to allow them to regulate their internal affairs
with the greatest possible freedom, and to reduce to a minimum the
cases of expulsion in regard to which the courts are required to decide
on the merits of the case l .
As regards the direction of associations, frequently a complete
m a t t e r , particularly in the case of federations and federal unions,
section 69 of the Civil Code provides that : " the direction has the
right and the duty to manage the affairs of the association ; and is
authorised to represent it in accordance with the constitution ".
Section 64 further provides : " T h e general meeting shall be the
supreme authority of the association ; and shall be summoned by the
direction
. . . "
DISSOLUTION

T r a d e unions are at liberty to decide on their own dissolution ;
and section 76 of the Civil Code provides that " an association is at
liberty to decide its own dissolution at any time ". I n most cases the
conditions under which the dissolution of a trade union can be
decided are specified in its constitution a n d also how the funds of
t h e association shall be disposed of in t h a t event '.
Dissolution can also be imposed : and Article 56 of the Federal
Constitution, and a certain number of cantonal Constitutions, only
guarantee freedom of association so long as the association conforms

Journal des Tribunaux, 1926, pp. 98 et seq. (summary of judgment).
For example : Article 21, Central Federation of Swiss Employers'
Associations ; and Article 20, Swiss Trade Union Federation.
2

SWITZERLAND

379

to the law. The State, as already pointed out, however, is not
authorised to take any preventive action. The Federal Constitution
only stipulates that the Cantons shall enact the legislative measures
necessary ior repressing abuses. xt is tuereiore ior the Cantons to
take the required action if the aims or methods of an association are
in any way contrary to law or dangerous to the State. The mere
fact, however, that a trade union has acted at variance with the law
does not ipso facto involve its dissolution ; it simply ceases to have
the right to appeal to the Constitutional guarantee contained in
Article 56 of the Federal Constitution. It then becomes the duty of
the public'authorities to intervene and to pronounce its dissolution.
With regard to the adoption of unlawful methods by trade unions,
the mere fact that they are referred to in the Constitution is not,
generally speaking, sufficient by itself to justify Government intervention ; and unlawful methods of this kind must first actually be
employed. It should, however, be remembered, in this connection,
that the right to strike is inseparably bound up with the right of combination ; and that the mere fact of organising a strike cannot be
alleged against a trade union as constituting an unlawful act. It is
only unlawful acts committed during a strike which can render their
authors liable to a criminal prosecution.
The position as regards public officials and civil servants is
different ; and should the present Staff Regulations for federal
officials, to which reference will be made below, be adopted by the
Legislature, associations of federal officials and employees, which
treat strikes as a normal method of enforcing demands, will be
regarded as illegal, under clauses 13 and 22 of the federal Bill. The
Federal Council in its Message has explicitly recognised that the
courts may, in this case, be called upon to pronounce the dissolution
of an association, without prejudice to any disciplinary penalties to
which public officials who have contravened the provisions of the Staff
Regulations may become liable '. The question of the right of public
officials to strike is dealt with in greater detail below 2.
Finally, section 77 of the Civil Code provides that an association
may be dissolved immediately " when it has become insolvent, or
if the officers cannot be appointed, as required by the constitution ".
As already stated, Article 56 of the Federal Constitution leaves

1
2

Message, 18 July 1924, F.F., 1924, Vol. Ill, p. 76.
See p. 399.

38o

FREBDOM OP ASSOCIATION

the Cantons free to enact such legislative measures as may be necessary for the repression of abuses; and in connection with the interpretation of this provision, a " preliminary opinion " (préavis) was
submitted by the Federal Council to the Federal Assembly in 1854,
stating :
Whatever the competent cantonal authority for suppressing associations, whether legislative, executive, or judicial, measures of this kind
remain subject to the control of the federal authorities, who are always
at liberty to intervene,
either at the instance of a third party, or on
their own initiative l .
And further :
The legislative powers of the federal authorities concerning freedom
of association are not as extensive as those relating to the press ; this,
however, does not prevent the Federal Legislature from enacting measures
for the repression of crimes and offences against the Confederation, the
federal authorities, or the law of nations which an association had been
guilty of, by conspiracy or otherwise 2.
It is of interest to note that cantonal laws do not at present,
as shown by an enquiry undertaken by the Federal Office of Labour,
contain any special provisions for the repression of abuses. This
is perhaps due to the fact that, before the Federal Code of Obligations
came into force in i88i, all questions connected with civil law
were then within the competence of the Cantons. Since that date,
however, all questions connected with associations are regulated by
federal law, the application of which has involved the disappearance
of provisions of civil law dealing with this point in the Cantons. At
present the question of the dissolution of associations is wholly regulated by federal civil law ; but as the great majority of trade unions
have been constituted in accordance with the federal law, the question
of their dissolution is governed by the provisions of the Swiss Civil
Code. It is therefore comprehensible that the Cantons have not
found it necessary to enact special provisions.
The rules of procedure applicable to the question of dissolution
occur in the two following texts :
Section 7S of the Swiss Civil Code : " Dissolution shall be pronounced
by the court, at the instance of the competent authority, or of one of
the parties concerned, whenever the aims of an association are contrary
to law or to public morals. . . "
1
1

F.F., 1854, Vol. I, p. 489.
Ibid., p. 486.

SWITZERLAND

381

Section 710 of the Federal Code of Obligations :
A co-operative society may also be dissolved, by a judgment, at the
instance of a member, of a creditor, or of the competent authority :
(1) when the objects of the society or the methods it employs are contrary
to law or to public morals. . .
Applications for the dissolution of an association may be made
either by one of the parties affected, or by " the competent authority ".
The latter term has purposely been left as vague as possible, with a
view to allowing the Cantons great freedom of action. The cantonal
courts are competent to pronounce judgment, subject to an appeal to
the Federal Tribunal ; while the federal authorities, as already stated,
remain at liberty to take action.
The Civil Code also contains rules for disposing of the property
of associations which have been dissolved, and specifies when it is
liable to confiscation.
Section 57 of the Civil Code provides :
Except if it is otherwise provided by law, in the constitution, in the
act of association, by the competent administrative organs of the society,
the property of corporations with a legal personality which have
been dissolved, shall devolve upon the community (Confederation, Canton, or commune) with which they were connected by their nature and
purpose. Such property shall, as far as possible, be transmitted in
accordance with the owners' original intentions. It shall devolve upon
the community, notwithstanding any provisions to the contrary, if the
legal person has" been dissolved as the result of a decision of the courts,
because its aims were contrary to law or to public morals.

CHAPTER I H
THE POSSIBILITIES AND LIMITS OF TRADE UNION ACTION

Hitherto we have confined ourselves to dealing with the legal
aspect of trade unionism. But the question also arises, what is the
real purpose and the actual scope of freedom of association? What is
the real nature of the work done by trade unions, whether of masters
or workmen ? What possibilities of action are there, and within what
limits are they confined? All questions of the utmost importance.
In some cases, trade union action is peaceful and legal ; in others,
on the contrary, it involves antagonism and conflict. It is now
proposed to deal with these two aspects of trade unionism.

§ 1. — Peaceful Activities which Aim at Improving
the Professional Position of Members
INTERNAL ACTIVITIES

Insurance and Mutual Benefit

Institutions

Many trade unions have established insurance and mutual benefit
institutions; and the former include numerous trade union funds,
in receipt of federal subsidies under the Sickness and Accident Insurance Act of 13 June 1911. section 35-37 \
1
The funds recognised by the Federal Government whose activities
cover the whole of Switzerland include : (1) The Swiss Christian Socialist
Sickness Insurance Fund ; (2) the Infantile Insurance Fund of the abovt
Fund ; (3) The Printing Trade Insurance Funds ; (4) the Sickness
Insurance Fund of the Swiss Lithographers' Union ; (5) a Sickness
Insurance Fund established by the Swiss Locomotive Engine Drivers ;
(6) a Sickness Insurance Fund established by the staff of the Federal
transport undertakings ; (7) the Sickness Insurance Fund of the Swiss
Bookbinders' Federation ; (8) the Sickness Insurance Fund of the Swiss
Federation of Metal Workers and Watchmakers ; (9) the Insurance Fund

SWITZERLAND

3&3

As regards unemployment insurance, federal grants are also
provided under the Federal Unemployment Insurance Act of 17 October 1924, in connection with which some 30 funds have been established by trade unions and recognised by the Federal Government.
Nor are trade union insurance activities confined to the above, and
several institutions of a special kind are also worthy of note. They
include an old age and invalidity fund, established by the Swiss
Typographers' Federation ; and a death fund set up by the Woodworkers' and Building Workers' Federation.
The Watchmakers' Corporation of the Franches-Montagnes has
established a corporate family allowance fund for the payment of
extra allowances in respect of families (including monthly allowances
for children and other family burdens, and marriage and birth allowances) \
The Swiss Trade Union Federation has also established a " solidarity fund ", intended to finance strikes or other trade union movements which, under the rules of 9 July 1925, is intended to supplement
the action of smaller funds of a similar nature, which the various
federations affiliated to the central organisation are required to set up
(Articles 1 , 2 , 5 and 6).
The various sections of the Swiss Railwaymen's Federation have
also established relief and insurance funds against death, relief funds,
and loan funds 2 .
The Swiss Railwaymen's Federation has established a co-operative
society under the management of a co-operative council and committee, responsible for the administration and management of holiday
centres for railwaymen, and this society owns two buildings, at

against sickness, invalidity and death established by the Swiss Typographers' Federation ; (10) the Insurance Fund against sickness and
death established by the Swiss Federation of Building Workers and
Woodworkers ; (11) the " Helvetia " Union's Sickness Insurance Fund ;
(12) the Sickness Insurance Fund of the Federation of Swiss Commercial, Transport, and Food Trades Workers ; (13) the Sickness Insurance
Fund of the Staff of the Swiss Federal Railways ; (14) the Sickness
Insurance Fund of the .Swiss Federation of Paper Workers and Auxiliary
Workers in the Printing Trades.
1
Article 2 of the Rules of 15 November 1923.
* See Leo MANN, op. cit., p. 60-64, where he gives considerable
information regarding these funds, together with financial statistics as to
their working.

3^4

FREEDOM OF ASSOCIATION

Grubisbalm at the foot of the Rigi and at Brenscino (near Brissago)
in the Ticino x.
Permanent Secretariats
The central organisations have all or nearly all established permanent secretariats, and this applies equally to employers' and to
workers' organisations.
On the workers' side the permanent secretariats established by
the Trade Union Federation, by the various affiliated federations,
and even by trade unions in some cases act, in addition to their other
work, as information bureaux for all questions connected with vocational matters and trade unionism ; while they also constitute the
machinery for defending the interests of members. This also applies
to the various Christian Socialist " Offices " : for instance there is
a permanent women's secretariat for the female workers' unions in
Geneva, in addition to the Office Chrétien Social.
Employees also have their information bureaux ; and the Swiss
Mercantile Society has set up a Central Secretariat at Zurich, and
a French Swiss Secretariat at Neuchâtel ; while the Federation of
Swiss Employees' Societies has a General Secretariat at Zurich.
At present there are a fair number of local workers' secretariats
(amounting to 17 in 1921) scattered all over Switzerland 2 .
The associations of employers have also established permanent
secretariats, the Central Federation of Swiss Employers' Associations
and the Swiss Federation of Commerce and Industry at Zurich, while
the Swiss Union of Arts and Crafts has its secretariat at Berne.
The Federal Government has officially recognised the general
utility of these secretariats, and makes regular grants to both employers' and workers' organisations ; which, in 1926, were as follows :
Swiss
francs

Swiss Federation of Commerce and Industry
20,000
Swiss Union of Arts and Crafts
30,000
Swiss Mercantile Society
30,000
Federation of Swiss Employees' Societies
15,000
Swiss Trade Union Federation
55,000
Swiss Federation of Christian Socialist Workers
25,000
National Federation of Independent Swiss Workers
10,000
Swiss Association of Evangelical Workers and Employees
6,000
1
Rapport de gestion et comptes pour l'année 1Ç24 de la Fédération
suisse des cheminots, pp. 222-232.
' Revue syndicale suisse, T921, pp. 50-60.

SWITZERLAND

Employment

385

Office*

There are at present 67 employment offices in Switzerland
organised by trade unions or trade associations; 30 by employers'
and 31 by workers' organisations, the remaining six being managed
jointly. The activities of 60 of the above extend to the whole of
Switzerland; sixteen of them cover entire vocational groups, and 18
a great part of such groups.
Labels
The movement in favour of buyers' associations, which had at
one time acquired a certain importance in Switzerland, naturally
favoured the use of labels. The movement originated at Geneva in
1903 ; but the activities of purchasers' associations were paralysed by
the war, and they now only enjoy a precarious existence 1.
The chairmen of the principal workers' organisations discussed
this question of labels at a conference held at Berne on 1 March 1908 ;
and a resolution, proposed by Greulich, was adopted, noting the
fact that trade union labels can be used as a means for developing and
completing trade union organisation. Unions were left entirely free
to make use of labels or not as they wished 2 . In practice, however,
they have never played an important part in Swiss trade union life.

Education and Vocational Training
The intellectual training of members is generally regarded as one
of the main objects of trade unions ; and this is generally specified in
their constitutions 3 .

A certain revival of the movement has, it appears, been noted of
late, particularly in Geneva.
2
HÜPPY, op. cit., pp. 111-117.
3
For example Swiss Typographers' Federation, Article 3 ; Workers'
Association of the Watch Industry of the Franches-Montagnes, Article 3 ;
Swiss Federation of Textile Workers, Article 2 ; Swiss Federation of
Christian Socialist Workers, Article 1, etc.
Freedom of Association

386

FREEDOM OF ASSOCIATION

Some vocational associations organise regular courses, providing
a varied and complete system of instruction, particularly from a
technical point of view ; courses frequently continue throughout the
winter; they are generally held in the evening, and certificates of
proficiency are granted. The courses organised by the Swiss
Mercantile Society are particularly worthy of mention. During
the winter period (1923-1924) courses of this kind were organised in
nearly 90 Swiss localities by the society, involving the services of
nearly 1,230 teachers. They were attended by 13,598 pupils, to whom
diplomas of various kinds were granted. The total collected in fees
from pupils attending the courses, including federal, cantonal, and
communal grants, amounted to 2,204,087 francs, as against an
expenditure of 2,308,216 francs *.
The Swiss Trade Union Federation also attaches great importance
to the intellectual and trade union education of members of the
various affiliated federations and unions, most of which have their
own libraries and organise lectures :
Our trade unions are unquestionably powerful (writes Mr. Schürch,
secretary of the Trade Union Federation and editor of the Revue Syndicale) ; they will be still more powerful, however, when each of them
has been able to organise a regular system of instruction for their members. . . . Local unions should undertake this work. . . . Education will
thus in time become an important branch of their activities -.
The Geneva Workers' Union has established a Workers' University, under whose auspices numerous lectures and courses for
trade unionists have been organised, which are open to the public.
The Trade Union Federation has also established courses for
" militant " trade unionists, intended, unlike the ordinary courses,
for trade union leaders and persons holding positions of trusts in
unions. They deal with technical questions, with trade union tactics,
and with economic and social problems of a more general character.
All questions concerning education and instruction are dealt
with by a Central Workers' Education Committee, common to the
entire Trade Union Federation, which keeps in close touch with the
cantonal committees.
This committee consisted in 1924 of five members of the Socialist
Party and eight members of the federation. The report for that
year notes that " the local committees organised n o courses, attended
1

SOCIÉTÉ SUISSE DES COMMERÇANTS

1924.
1

Revue syndicale suisse, 1913, p. 89.

: Rapport de gestion, No. 52,

SWITZERLAND

3»7

by 3,543 persons, and 419 lectures, attended by 29,000 persons.
According to the statistics available, 100,000 persons took part in the
various activities of the educational centres. The annual receipts
amounted to 25,976 francs, with a balance of 5,848 francs, while the
available funds of the Central Educational Committee amounted at
the end of the year to 16,652 francs " \
The various Christian Socialist associations have also organised
" social weeks " and " social days ", intended to facilitate the organisation of courses, lectures and discussions. Study circles also exist,
in which members are urged to co-operate actively. They are generally
provided with libraries ; and the Geneva Christian Socialist " Cartel "
has its own book shop.

CO-OrERATION WITH THE PUBLIC AUTHORITIES
Committees, Councils, etc.
Both employers' and workers' organisations have plenty of opportunities for taking part in the work of official committees, such as
those dealing with vocational organisations, labour legislation, or
the supervision of " chambers of labour " (Chambres de travail). In
some cases, trade unions are allowed to suggest candidates for election
as members of conciliation boards, apprenticeship committees, or
" Juges prudhommes " 2 . In the Ticino a workers' secretary, responsible by law for the performance of various official duties, is
appointed by the trade unions (Act of 26 June 1902, sections 24-26) 3 .
The Swiss Union of Arts and Crafts, in its report for 1924,
enumerates the commissions on which the Committee of Management
is represented, including the Board of Directors of the National
Bank, the Board of Management of the Swiss National Accident
Insurance Fund, the Federal Factory Commission, the Commission
for the Preparation of a General Customs Tariff, the Central Exhibitions Office, the Federal Statistical Commission, the Federal Sickness
Insurance Commission, the Committee of Experts for Old Age,
Invalidity and Survivors' Insurance, the Experts Committee for

Revue syndicale suisse, 1925, pp. 98-99.
La Suisse économique et sociale, Vol. I, pp. 584-585.
' Text of Act in Ibid., Vol. II, pp. 592-595.
3

388

FREEDOM OF ASSOCIATION

Unemployment Insurance, the Federal Corn Supply Commission, the
Committee on Imports, etc. l
The Swiss Railwaymen's Federation indicates, in its 1924 report,
the official bodies on which it is represented; which include the
Board of Management of the Swiss Federal Railways, the Council
of the Second Railway District, and the Staff Committee of the
Federal Railways 2 . The fact that various opinions are represented
on this committee has, it may be noted, led to protests on the part
of certain members of the staff : the locomotive engine drivers, for
instance, at their Rorschach Congress on 31 May 1926, protested, in
this connection, against the oppression to which minorities are subject
from certain unions of extremist tendencies 3 .
The general meeting of delegates of the Christian Socialist
Transport Workers' Union, at Olten (8 June 1926), " adopted a
vigorous attitude towards the new rules for staff committees, drawn
up by the board of management and the general direction of the
Swiss Federal Railways, which would tend to create a monopoly in
favour of Socialist organisations and ^rêvent minorities of the Fed^r?.!
staff from co-operating with the authorities " 4 .
The Federation of Swiss Employees' Societies 5 was also
represented, during 1924, on the following official committees : Imports Restriction Committee ; Board of Management of the National
Accident Insurance Fund; Advisory Committee on the Import of
Meat. The staff unions of the municipal employees of Berne and
Zurich are officially represented on the staff committees of both these
municipalities 8 .
Both employers' and workers' organisations are, in many cases,
represented on the committees appointed for the purpose of submitting
draft bills to preliminary examination. In conclusion, we may note
that representatives of trade unions are not appointed in virtue of
legal provisions of a positive character ; and that the authorities
themselves generally take the initiative in requesting associations
to be represented by delegates.
1

UNION SUISSE DES ARTS ET MÉTIERS

: Rapport de gestion, No. 45,

1924, pp. 31-32.
1

FÉDÉRATION

SUISSE

DES CHEMINOTS

Comptes pour l'année IQ24, pp. 14, 20, 21.
* Journal de Genève, 1 June 1926.
* Ibid., 9 June 1926.
5
1924 report, p. 10.
* Revue syndicale suisse, 1923, p. 99.

: Rapport de gestion et

SWITZERLAND

389

Legal provisions also exist relating to the nomination of representatives both of the undertakings and of the staff, on the Federal
Factory Commission, the Commission for Federal Workshops, and
the iVviVisory Commission on Hours of Labour in Transport Undertakings and Communications.
The Federal Factory Commission is appointed by the Federal
Council, and includes an equal number of employers and workers,
together with men of science. The duties of the Commission include
giving advice on all questions of principle which may form the
subject of an Order or Arrêté by the Federal Council. The commission is also empowered to make proposals on its own initiative
in connection with factory legislation and its application l.
The Commission on Federal Workshops, which is also appointed
by the Federal Council, is responsible for investigating and giving
its opinion concerning all complaints or demands relating to general
conditions of work emanating from the staff of federal workshops,
except those employed by the Federal Railways. The commission
consists of a neutral chairman, chosen outside the federal administration, of one representative of the industry, and one representative
of the workers ; 4 assessors are appointed for each particular case,
1 belonging to the management of the workshop, 1 to the administration of the department concerned, and 2 chosen from the wagee.arning staff of the workshop to which the case relates. Apart from
cases of this kind, the commission may be instructed, either at the
request of the management or of the staff of a workshop, to investigate
and report on conditions of work 2.
In addition to the staff committee of the Federal Railways referred
to above, there is also a special commission appointed by the Federal
Council on which transport and communication undertakings, subject
to the Hours of Work Act, are represented jointly with their staff
in equal numbers. This commission is responsible for giving advice
on all draft Orders for the application of the provisions of the Hours
of Work Act, and on any other questions which may give rise on the

1
Federal Factory Act of 18 June 1914, section 85 ; Order of r-, October
1919 for the application of the provisions of the Federal Factory Act,
sections 213-215 (La Suisse économique et sociale, Vol. I, pp. 591 and 592,
Vol. IT, pp. 33, 65).
3
Federal Factory Act, sections 36-39 ; Order, etc., sections 117-132
{Ibid., Vol. I, pp. 574-575. 582 ; Vol. II, pp. 24, 25, 46, 47).

390

FREEDOM OF ASSOCIATION

part of the Federal Council to Orders of a general character, to
decisions on appeals and complaints, or to penal measures \
Legislation and its

Application

The part played by trade unions in furthering social legislation,
both during the last century and in this, has unquestionally been of
considerable importance. And every step in the progress of trade
unionism, irrespective of the doctrines by which it was inspired,
reacted on the progress of labour legislation. Trade union action in
Switzerland was facilitated by the existence of tne political machinery
known as the " referendum " 2 and " initiative " 3 , which enable Swiss
citizens to make their views felt directly as regards legislation, either
by rejecting proposed laws which they disapprove of, or, on the
contrary, by demanding that additional Articles shall be inserted in
the Constitution or existing ones deleted or modified. The referendum of 17 February 1924 is a typical example of the working of this
system. A Federal Act was adopted on 1 July 1922 by the Federal
Legislature, authorising the Federal Council to extend the length
of the working week to 54 hours, as an exceptional and temporary
measure. A referendum was demanded, the petition for this purpose
obtaining 200,000 signatures, though only 30,000 are required under
the Federal Constitution to compel an Act adopted by the federal
legislature to be submitted to a popular vote. In this case the trade
unions shared the responsibility for organising the opposition tö the
Act with various political parties ; and trade unionists of all shades
of opinion, including Socialists, Christian Socialists, evangelical workers, and Communists acted together. The campaign resulted in the

1
Federal Act of 6 March 1920 regulating the hours of labour of
persons employed on railways and in other services connected with
transport and communications, section 18 ; (Ibid., Vol. I, pp. 575, 592-593;
Vol. II, p. 92).
2
Federal Constitution, Article 89 (2) : " Federal Acts and Orders
of a general nature, which are not of an urgent character, must be submitted to a popular vote for approval or rejection if a demand for this
purpose is made by 30,000 active citizens. "
3
Federal Constitution, Article 121 : " A partial revision (of the
Federal Constitution) may be carried out, either in the form prescribed
by federal law, or by popular initiative. A popular initiative consists
of a demand submitted by 50,000 Swiss citizens, who are electors, for the
insertion of a nex Article in the Constitution, or for the deletion or modification of certain existing Articles of the Constitution. "

SWITZERLAND

SCI

Act being rejected, on 17 February 1924, by 436,180 votes to 320,668.
Numerous propaganda pamphlets were issued by the trade unions.
This was probably the most important example of trade union
action of this kind, but it was by no means an isolated instance 1.
The Swiss Workers' Federation at the Olten Congress had already
in 1873 laid down the main principles of labour legislation, including
the regulation of women and children's work, social insurance, a tenhour day, apprenticeship, measures for enforcing safety and hygiene,
etc. ; and the Federation strongly supported the first piece of Swiss
federal legislation concerning labour : the Federal Factory Act of
1877. All the subsequent modifications and improvements of this
Act were adopted either at the instance of or in co-operation with
trade unions. These were discussed by numerous workers' congresses,
particularly the Olten Congress in 1890. The experts' committee by
which the revision of the Act was begun in 1907 — a task only
concluded in 1914 — included several representatives of trade unions ;
and Mr. Farner was able to say as regards the Act of 18 June 1914 :
" The Workers' Federation may feel assured that its co-operation has
been successful " 2 .
Similarly, the Swiss Railwaymen's Federation has always taken
an active part in the work of preparing the legislative provisions
applicable to transport undertakings : particularly the most recent
Act, of 6 March 1920, concerning Hours of Work on Railways, etc.
After a referendum against the provisions of this Act had been
demanded and obtained, the railwaymen undertook an active campaign
in its favour, and the popular vote of 31 October 1920 resulted in the
final adoption of the Act by 369,466 votes to 227,342 3 .

T H E SHARE OF TRADE UNIONS IN T H E ESTABLISHMENT
OF WORKING CONDITIONS

Collective

Agreements

Both employers' and workers' organisations have the right to
conclude collective agreements. From an historical point of view,
1

Antony BABEL : Essai sur les causes et le développement de la législation du travail en Suisse. Geneva, 1925.
3

FARNER, op. cit., p . 101.
BABEL, op. cit., pp. 185-186.

For an account of the activities of the
Swiss Railwaymen's Federation in connection with labour legislation
see Leo MANN, op. cit., pp. 133-149, and in connection with accident
insurance and pensions, pp. 149-163.

FREEDOM OF ASSOCIATION

392

the first collective agreement concluded in Switzerland was one
between printers and master printers in the Canton of St. Gall in 1861;
and in the summer of the same year an agreement of a similar kind
was adopted in t h e p r i n t i n g trade in Zurich, Chur, and Basle, and
was subsequently extended to Aarau in 1862 and to Lucerne, F r a u e n feld, etc., in 1863. T h e example set by the printing trade was subsequently followed in others.
T h e most important collective agreements recently concluded
include those in t h e wood industry (1919); the hotel industry (1919);
the lithographic industry (1916) ; locksmiths (1919) ; embroiderers
(1919); a n d for commercial employees and technical staff (1918), etc.;
all of which were concluded between employers' organisations on the
one hand and workers' or employees' organisations on the other *.
Collective agreements are subject to t h e provisions of t h e Federal
Code of Obligations. A n d , in accordance with sections 322-323 2 ,
collective agreements m a y be concluded b y groups, or b y trade unions.
Mr. I,. Clerc has summed u p the matter as follows :
. . . The contracting parties may consist, on the employers' side, of
an employer or of one or more employers' organisations, or of a federation
of employers' organisations ; on the workers' side of de facto groups,
vocational organisations, or unions or federations of the latter 3.
T h e question arises whether a non-union workman can be compelled to adhere to the t e r m s of a collective agreement. Mr. Clerc
replies in the negative :
. . . A non-union workman cannot be compelled to submit, against
his will, to the provisions of a collective agreement adopted by a vocational organisation.
1
L. CLERC : Essai sur le contrat collectif de travail, pp. 72-76. Lausanne, 1922.
2
Section 322. Rules relating to working conditions may be adopted
by the employers and workers concerned by means of agreements concluded between employers or employers' organisations on the one hand,
and workers or workers' organisations on the other.
A collective agreement shall only be valid if it is in writing.
If the parties to the agreement have not agreed as to the time
during which it shall remain in force the agreement may, at the expiration
of one year, be denounced at any time by giving six months' notice.
Section 323. Any contract of employment entered into by employers and workers bound by the terms of a collective agreement shall
be null and void in so far as its provisions conflict with those of the
latter ; and the provisions of the collective agreement shall be substituted
for those which are null and void.
3

L. CLERC, op. cit., pp.

in.

SWITZERLAND

393

But he is at liberty to adhere to them :
The parties concerned must either belong to the vocational organisations which are parties to
the collective agreement, or must subsequently adhere to its terms 1.
It is generally admitted that vocational organisations, by which
collective agreements have been concluded, are entitled to supervise
their application, since it might be risky for a single individual to
take isolated action in the event of the provisions of a collective
agreement being violated; whereas a powerful organisation can do
so without any danger. The above principle has been admitted and
applied by the Zurich Conciliation Board.
Conciliation and

Arbitration

Sections 30-35 of the Federal Factory Act of 18 June 1914-27 June
1919 2 , require the Cantons to establish permanent conciliation boards,
with a view to the amicable settlement of collective disputes between
employers and workers. They are also authorised to confer a wider
competence on these boards than is provided for in the Federal Act.
The Cantons are responsible for the organisation of these Boards,
subject, however, to the approval of the Federal Council. Several
Cantons, in Administrative Regulations issued for the purpose, have
explicitly provided that trade unions both of masters and workpeople
shall be entitled to make proposals for electing employer and worker
members of the Boards. Those in which Regulations of this kind have
been issued include :
1
Ibid., p. 157.
' Section 30. For the amicable settlement of collective disputes between factory owners and workers, and also in regard to the interpretation and the execution of collective or normal contracts, the Cantons
shall establish permanent Conciliation Boards, bearing in mind the
requirements of the various industries.
The organisation of the Cantonal Conciliation Boards shall be subject
to the approval of the Federal Council.
Section 31. The Conciliation Boards shall intervene ex officio or
upon request of the authorities or of the interested parties.
Any person subpoenaed by a board shall be compelled, under
penalty of a fine, to appear, to take part in the proceedings and to give
all necessary information.
The procedure shall be free of charge.
Section 32. Should a dispute extend beyond the limits of the Canton,
the Federal Council shall nominate the Conciliation Board. The

394

FREEDOM OF ASSOCIATION

Thurgau (section 2, Regulation of 19 April 1918) ; St. Gall
(section 12 of the Act of 23 November 1923) ; Neuchâtel
(Order of 9 April 1918) ; Zurich (section 7 of the Order
of 9 August 1923) ; Solothurn (section 8 of the Order of 18
November 1918-13 October 1920).
In the Ticino one member is nominated by the Chamber of Commerce, and the other by the " Chamber of Labour " (Chambre de
Travail).
Other Cantons do not actually provide for co-operation with trade
unions : and in Geneva, for instance, the employer and worker members of the Board are nominated by the Conseils de prud'hommes 1 .
In the Canton of Berne, candidates are proposed by meetings representing all the employers, or ail the workers, in each district 2 . The
Lucerne regulations merely provide that members of Conciliation
Boards shall be chosen from among employers and workers. Similar
provisions exist in Glaris 3 . The Canton of Schwyz provides that
members shall be chosen with due regard to the principal occupations
or callings *. In Appenzell (Outer Rhodes) the regulations provide
for an equal number of employers and workers 5 from among the
chief industrial undertakings in the Canton. In a certain number of
other Cantons, no provisions of any kind relating to co-operation
with or the consultation of trade unions in this connection exist.
The duties and functions of conciliation boards in connection
with collective disputes will be dealt with at greater length below 8 .
Federal Council shall also be entitled to appoint a Cantonal Board to
arbitrate.
Section 33. Should a number of factory owners and their workers,
belonging to the same industry unanimously appoint a Conciliation
Board, the latter shall, as far as they are concerned, replace the public
board.
Section 34. The parties shall have the right in every case to empower
the Conciliation Board to settle their difference by means of an arbitral
award. Should the board have been established by mutual consent, the
parties may extend such power to all their differences.
Section 35. The Cantons shall have the right to confer more extensive
powers on their Conciliation Boards than those provided for in the present
Act.
1
Section 3 of the Order of 11 Oct. 1918-6 Dec. 1919.
3
Section 3, Decree of '21 March 1910.
* Section 12, Order of 26 Nov. 1919.
* Section 1 of the Regulations of 28 Nov. 1922.
5
Sections 6 and 10 of the Regulation of 5-21 June 1920.
8
See pp. 405-406.

SWITZERLAND

395

Works Councils, etc.
There are no legislative provisions relating to works councils in
Switzerland, and any- bodies of this kind, which are more in the
nature of committees, that have been spt up are due to private initiative. An enquiry was undertaken by the Trade Union Federation in
1923, which showed that in 19 cases statutory rules or workshop
regulations existed providing for collaboration with workers employed
in the undertaking. " All that has hitherto been done in this connection is due to good will, or to an understanding between employers and
workers, independently of trade union action." l It would even
appear that the workers' committees, or shop committees, established
as a result of private action 2 are not regarded with great favour in
trade union circles, where, it is alleged, they are intended " to paralyse
the growing influence of the unions " 3 . Another argument used by
tr.ade unionists is that employers aim in this way at " lessening the
influence of the unions and their trusted agents " 4 .
§ 2. — Collective Disputes
It is intended in this section to give a brief description of the
various forms of militant industrial action, employed in connection
with collective disputes, which have been subject to regulation. The
limits to which they are subject will be dealt with subsequently, in as
fer as the summary itself does not make this clear.
MILITANT INDUSTRIAL ACTION

The most important measures in this connection unquestionably
consist of strikes and lockouts ; but before describing them in detail,
a brief allusion to other measures intermediate between the two and
sometimes employed before or during the struggle itself may not be
out of place.
The question of boycotts and black-listing is a complex one *.
Measures of this kind are not generally considered illegal, in view of
1

Revue syndicale suisse, 1023, p. 97-98.
See, in this connection, for the part played by Mr. Sulzer-Ziegler,
Bulletin sténographique officiel de l'Assemblée fédérale suisse, 1906,
p. 861 et seq.
3
Revue syndicale suisse, 1923, p. 97.
' Ibid., p. 98.
ä
It is dealt with at some length by BONHÔTE, op. cit., pp. 222 et seq.
2

396

FREEDOM OF ASSOCIATION

the fact that they are merely a manifestation of individual liberty.
They may on the other hand, however, result in completely depriving
the workers or employers at whom they are aimed of their resources.
The Federal Tribunal, in interpreting the law on this point, has
recognised that acts of this kind are unlawful, if it is really impossible
for the persons at whom they are aimed to obtain employment and
earn their living x. The courts are therefore competent in the last
resort to decide how far measures of this kind are lawful or not.
One of the best known instances of a boycott directed against
certain undertakings occurred in 1894, when the Swiss brewery workers boycotted the output of certain breweries ; and the effects of the
boycott lasted until 1898. A similar case took place in the tobacco
industry in 1896-1897 2 ; while more recently certain brands of
chocolate have also been boycotted.
!We next come to strikes and lockouts. Swiss workers have
frequently resorted to strikes, both in the last century and in this.
And the Canton of Aargau in 1806, and the Canton of Zurich in
1844, both issued Orders prohibiting them; but these were exceptional measures, and in practice produced little or no effect.
Several strikes during the third quarter of the nineteenth century
failed owing to lack of funds ; and this was one of the main reasons
why the Workers' Federation in 1886 established the well-known
" Swiss Workers' Reserve Fund ", maintained by subscription from
the trade unions and from the Griitli Society. In 1891 the Trade
Union Federation became responsible for the administration of this
fund.
In 1906 the Basle Trade Union Congress decided that trade unions
or trade union federations should be responsible for the conduct of
strikes or other wage movements ; and general principles for organising operations of this kind, affecting whole towns or districts, were
agreed upon. In 1906 the Central Committee of the Trade Union
Federation discussed the problem of direct action in the shape of a
general strike ; but this species of action was rejected, a decision
ratified by the Basle Congress in 1906.
The adoption of military measures, particularly the employment
of troops to deal with strikes, has been discussed repeatedly in trade
union circles, and the employment of troops for this purpose has
1

A.T.F., 32, II, p. 370 ; 40, II, pp. 619 et seq. See also HOFSTETTERLEU : Der Boycott nach schweizerischem Recht, pp. i n et seq.
1

H Ü P P Y , op. cit.,

pp. 111-117.

SWITZERLAND

397

always been condemned. The Swiss Socialist Party, at the Zurich
and Olten Congresses in 1904 and 1906, passed resolutions criticising
the use of the army in connection with strikes ; and these were renewed
after the mobilisation which accompanied the general strike in
November 1918 x .
Strikes figure in most trade union constitutions as a means of
action. And Article 3 of the constitution of the Trade Union Federation provides for the publication of all useful information relating to
strikes and lockouts ; and for the organisation of voluntary subscriptions intended to finance them. The functions of the " trade union
committee " (Comité syndical) include " black-listing, or boycotts,
applicable to the whole of Switzerland if proposed by the federations
concerned ".
Article 17 of its constitution provides that :
Measures of comprehensive character, lockouts against which individual federations or trade union " cartels " cannot protect themselves
effectively, sympathetic action and measures adopted by the organised
workers as a whole, can be carried out by the Trade Union Federation. —
The trade union committee is competent to decide on a course of action.
— A decision to resort to a general national strike shall be deemed valid
if adopted by a majority of two-thirds of the members present. . . The
trade union committee may appoint a central strike committee, or entrust
the management of the strike to the Swiss Trade Union Committee.
The Trade Union Federation has also adopted an addendum to
its constitution and rules entitled: ".Solidarity Fund Regulations ",
in which it is stipulated that federations must as a general rule depend
on their own resources in the case of strikes or lockouts by which they
are directly affected and are entitled to levy contributions and organise
collections for this purpose. The Trade Union Federation has, nevertheless, established a " Solidarity Fund " intended " to finance strikes
and the consequences of lockouts of exceptional length and importance . . . " Article 9 of these regulations specifies under what conditions
grants from the fund may be made ; and provides that " the struggle
shall only be continued if this is in the general interest, and if there
is a reasonable chance of success. Special contributions may be levied
on (those) members not affected by a strike or lockout. " The
1

For this question see : F. THIES : " Streiks und Lohnbewegungen "
in the Handwörterbuch, by REICHESBERG,Vol. Ill, pp. 804-840 ; HÜPPY,
op. cit., 2nd Part, Chap. VIII ; Leo MANN, op. cit., 2nd Part, Chap. II ;
Speech of SCHERRER, in the Conseil national, Bulletin sténographique
officiel, 1906, pp. 861-874-

400

FREEDOM OF ASSOCIATION

of inciting others to commit any of the above acts, will be liable, unless
such an act entails severer penalties, to imprisonment not exceeding one
year.
Section 8 (i) provided t h a t :
Persons guilty of the offences specified in the present Order shall be
prosecuted and judged by a Military Court.
T h e provisions of this Order were partially enforced after the
strike of 1918, a n d 82 prosecutions of a more or less serious character
were instituted against trade union leaders.
T h e m a t t e r has also been dealt w i t h in the Canton of F r i b o u r g ,
where strikes in the public services are in fact prohibited by a cantonal Act of 17 F e b r u a r y 1923, the two m a i n sections of which provide :
Section 5. Persons employed in a State undertaking who go out on
strike shall be liable to the disciplinary penalty of suspension or dismissal. • The penalty shall be imposed by the Council of State.
Section 6. Persons employed in the public services, or in undertakings working under a State concession, who go out on strike are
guilty of a misdemeanour and liable to a fine not exceeding 500 francs,
or to imprisonment. Any person, including third parties, inciting others
to strike are also liable to the same penalty. — A criminal prosecution
may be instituted at the instance of the Council of State. — The
remaining provisions of the criminal law are not affected by the above
provisions.
T h e Berne Cantonal Government h a d laid down in section 4 of
the Decree of 5 April 1922 concerning t h e salaries of cantonal officials,
employees, a n d workers, t h a t t a k i n g p a r t in a strike shall constitute
a disciplinary offence.
W e now come to the special position occupied by federal officials.
T h e question whether the right of these officials to form associations
should or should not b e restricted is at present under consideration
in Switzerland. A n d the 1918 strike was certainly not unconnected
with t h e decision to raise the whole question in public and in the
Legislature.
T h e Federal Legislature has been engaged since 1925 in examining the draft staff regulations submitted by the Federal Council. T h e
right of association and the right to strike are dealt with in clauses
13 and 22. T h e former is guaranteed b y Article 56 of the Federal
Constitution, except where " the aims of an association or its
methods are contrary to law or dangerous to the State." T h e federal
authorities base themselves o n this qualification in t h e Constitution
in seeking to restrict the rights of association enjoyed b y public

SWITZERLAND

4OI

officials. T h e Bill was accompanied b y a message from t h e Federal
Council to t h e Federal Assembly, dated 18 July 1924 x .
Clause 13 of the Bill is as follows :
Public officials are guaranteed the right of association, subject to the
limits imposed by public order. — Officials are prohibited from belonging
to any association whose aims or methods are unlawful, or dangerous to
the State. — Associations which aim at resorting to, at encouraging, or
at making use of strikes of public officials are unlawful.
Clause 22 deals with t h e right to strike :
Public officials are prohibited from striking, or inciting other officials
to strike. Associations and co-operative societies are prohibited from
depriving public officials of their membership, or taking any measures
injurious to their economic interests, in consequence of a refusal to take
part in a strike. Agreements concluded by associations or co-operative
societies, including any provisions in their statutory or other rules, which
contravene this prohibition shall be deemed null and void,
These clauses aim at restricting t h e r i g h t of public officials to
c o m b i n e ; a n d t h e Federal Council in its message explains at some
length t h e reasons t h a t have led to t h e adoption of this attitude T h e
two salient passages, in which t h e theory maintained b y the Federal
Council is expounded, are as follows :
Public services are necessary for all nations which desire to live in
security, and this is why they are organised by the State,. The State
entrusts the administration of these services to public officials, instead
of confiding them to private management, precisely with a view to
ensuring the necessary permanenc}' in working. It is therefore quite
natural that any attempt to impede or stop their regular working should
be explicitly prohibited by law. Both individual and collective refusals
to work should be categorically prohibited by law, since the reasons
against permitting employees and public officials to strike are of a
peremptory nature. They are still more decisive in a democratic community, where the conditions under which workers are employed and,
in particular, the rate of wages, are determined by the nation itself.
A strike of public officials in this country would therefore in reality be a
strike against the whole nation *. The State is therefore not only entitled
to forbid strikes ; but it is its duty to prevent their occurrence by
prohibiting associations which make it compulsory on their members,
in certain cases, to go on strike. By joining an association which claims
the right to suspend the working of a public service, a public official
violates his fundamental obligation to maintain public order, on which
the safety of the State depends *.
T h e Federal Council reverts to the question in a

detailed

F.F., 1924, Vol. I l l , pp. 1 et seq.
Words underlined in the Message itself.
* Messagt of 18 July 1924, pp. 5-6.
s

Freedom of Association

2«

402

FREEDOM OF ASSOCIATION

commentary on each clause of t h e Bill, in which it is stated, as
regards clause 13 :
In virtue of Article 56 of the Federal Constitution, Swiss citizens,
and foreigners resident in Switzerland, have" the right to constitute
associations, provided there is nothing in their aims or methods contrary
to law or dangerous to the State. Subject to these limitations, individual
liberty cannot be in any way curtailed by the State. And the right of
association, as defined in this Article of the Constitution, implies the
absence of any constraint or interference on the part of the State. The
present Bill is intended to ensure that the State, in its capacity as an
employer, shall guarantee public officials their constitutional right of
association. An express provision prohibiting officials from joining
associations which, under Article 56 of the Constitution are unlawful, is
therefore perfectly constitutional, and it is obvious that associations
which impose any obligations on members who are public officials,
contrary to the legal duties of these members, which would, for instance,
prevent them from faithfully and conscientiously performing their officiai
duties, or protecting the interests of the Confederation, cannot at the same
time enjoy the benefit of those constitutional guarantees which are intended
to safeguard the right of association. Associations which admit that
public officials have a right to strike, or which are prepared to encourage
or make use of this right, are clearly going further than the limits to the
right of association to which members of the staff are entitled. And
according to Article 56 of the Constitution, the methods employed must
be regarded as unlawful. To make the legal position perfectly clear,
clause 13 expressly provides that associations of this kind are unlawful '.
A n d t h e commentary t h e n goes on t o indicate u n d e r w h a t conditions illegal associations or co-operative societies m a y be dissolved.
T h e commentary on clause 22 defines t h e reasons given b y t h e
Federal Council, without adding a n y t h i n g fresh. T h e most important
passage in this case is as follows :
Public officials are prohibited, by their duty to remain loyal, from
committing any act calculated to threaten the order and security of the
federal administration, or to hinder its normal working in any way.
It is desirable that this should be expressly stipulated in the Act, where
it should be clearly specified that individual. or collective refusals to
work, in other words strikes, in whatever form they occur, or whatever
their purpose, shall constitute a breach of official duty a .
T h e Federal Council, however, notes the opposition to t h e proposed measure which all k i n d s of associations of officials consulted
during t h e preliminary work h a v e expressed; and this applied not
only to officials belonging to t h e Federated Union of Federal
Employees and Public T r a n s p o r t Employees, b u t also to members of
Christian Socialist organisations s .
1
Message, 18 July 1924, pp. 75-76.
» Ibid., p. 98.
• Ibid., p. 98.

SWITZERLAND

403

To sum up, it appears that the Federal Council regards the chief
criterion, by which a lawful association of public officials can be
distinguished from an unlawful one, as being the fact that it admits,
or refuses to admit, the possibility of its members striking.
The proposed staff regulations were discussed by the Swiss
Council of States (First Chamber) during the spring and summer
of 1925, subsequently coming before the National Council in the
spring session of 1926, and giving rise in both cases to animated
debates. Clause 13 was slightly modified in the former : the first
paragraph remains unaltered, but the second paragraph now reads :
" Public officials are prohibited from belonging to an association
which recognises or makes use of a strike of public officials, or whose
aims or methods are in any other way unlawful, or dangerous to the
State. " The third paragraph of the original clause was deleted x.
The clause in this amended form was adopted by 30 votes to 1.
Clause 22 was adopted in the form proposed by the Federal
Council by 30 votes to 1 ; and the Act as a whole was unanimously
adopted by the Council of States s .
After a still more animated debate in the National Council, in
the spring of 1926, clause 13, as originally drafted by the Council
of States, was adopted by 99 votes to 53 3 ; while clause 22 was
adopted without amendment *.
Several protests against the adoption of the two clauses have
been made by members of the federal staff ; and a meeting of delegates of the post office officials at Lucerne on 4 and 5 June 1926
passed the following resolution :
The Assembly protests vigorously against the restriction to the
right of association guaranteed by the Federal Constitution, and
expresses
the hope that the National Council will modify its decision 5.
The telephone and telegraph officials, at a meeting at Schaffhausen on n and 12 June, passed a similar resolution :
The assembly protests vigorously against the proposed restrictiou of
the right of association guaranteed by the Constitution e.
1
Bulletin sténographique officiel de l'Assemblée fédérale, 1925,
pp. 241, 243.
3
For the discussion in the Council of States, see Bulletin sténographique officiel de l'Assemblée fédérale, 1925, Council of States, pp. 97-104,
113-118, 241-243. 254.
3
For this discussion, see ibid., National Council, pp. 259-279, 281-302.
* For this discussion, see ibid., pp. 485 et seq.
e
Journal de Genève, 8 June 1926.
• Ibid., 15 June 1926.

FREEDOM OF ASSOCIATION

404

The Bill as a whole was adopted by the National Council in the
course of its September-October session in 1926; but there are still
differences between that body and the Council of States regarding
the scale of salaries. The Bill will only become law when it has
finally been adopted by both branches of the Legislature.
In that event, however, the legal position of federal officials will
be as follows : they will be guaranteed the right of association, but
this will not imply the right to strike l .
Police Measures and the Criminal Law
It is at present generally agreed that the right to strike is necessarily bound up with the right of combination and, as noted by
Mr. Bonhôte, " the one implies the other ; the right to strike cannot
exist apart from the right to combine, while the latter is useless in
the absence of the former. To recognise the right of combination
while refusing the right to strike would be equivalent to granting an
illusory right. " 2
In practice the public authorities do not intervene whilst a strike
is in progress provided it is conducted with due regard to what is
lawful; and, subject to these qualifications, picketing is permitted.
Should any act of violence be committed, it comes within the
provisions of the ordinary police and criminal law. The ordinary
police regulations concerning traffic and the use of the public highway,
crowds, processions, the carrying of arms, etc., naturally apply to
strikes, or to other forms of trade union action, since they are measures
of a general character binding on all citizens. This also applies to
all forms of criminal prosecution. Persons guilty of committing any
unlawful act are liable to prosecution, independently of whether
they are members of a trade union or not. Moreover, associations
themselves are not subject to prosecution as such, and, in accordance
with the interpretation of the law by the Federal Tribunal 3 in this
connection only physical persons can be prosecuted.
In certain Cantons there are provisions relating to abuses connected with collective disputes. The Zurich Penal Code, completed
in this connection by the additions adopted in 1908, provides penalties
1
3
3

See note p. 410 concerning the adoption of the Public Servants Act.
Op. cit., pp. 261-262.
A.T.F., 41, I, p. 212.

SWITZERLAND

4P5

for unlawfully entering w o r k i n g premises, or for a n y interference
with the liberty of employment by threats or violence 1.
I n Berne, an Act adopted in 1908 imposes penalties on a n y
person w h o . in the course of a strike, prevents workers desirous of
working from so doing, or a n y other person from exercising his
occupation or calling. Conversely, t h e same penalties apply to a n y
person endeavouring, by threats or violence, to prevent another
person from taking part in a strike a .
I n the Canton of Basle-Town several sections were added to t h e
Penal Code in 1909, in which penalties are imposed on all persons,
whether employers or workers, w h o prevent other person^ from
participating in active measures during a collective dispute, or compel
t h e m to do so, even if t h e former are themselves lawful 3 .
I n the Grisons an Act of 1908, concerning conciliation in collective labour disputes, imposes penalties on any persons w h o , b y threats,
violence, or insults prevent, or seek to prevent, another person from
working freely 4 .
I n the Ticino, section 234 of t h e Penal Code contains Draconic
provisions :
Subsection 1. Any act involving violence, threats, or deception which
aims at restricting or preventing the free exercise of industry or commerce, or at producing or prolonging a cessation of work, or which, is
committed for the purpose of imposing an increase or a decrease of
wages, or of enforcing any agreement other than those which have been
freely established or accepted, shall render its author liable to a penalty
of imprisonment varying from the first to the second degree.
Subsection 2. If a combination of workers against employers or contractors has been formed, or vice versa, the penalty shall be increased
by one degree ; and if an employer or contractor becomes liable to a
penalty, a fine varying from the first to the second degree shall be
imposed in addition.
T h e Council of State of the Ticino, however, informed t h e
Federal Office of Labour in a letter dated 5 March 1926, t h a t t h e
above provisions are never in practice applied.
Conciliation

and

Arbitration

Section 31 of the Federal Factory Act of 18 J u n e IQI4--2 7 J u n e
1919 provides t h a t the Cantons may set u p Conciliation Boards, subject
1

Text
Ibid.,
3
Ibid.,
« Ibid.,
2

in La Suisse économique et sociale, Vol. II, Zurich, No. 11.
Berne, No. 9.
Basle-Town, No. 10.
Grisons, No. 3.

4.0Ó

FREEDOM OF ASSOCIATION

to the approval of the Federal Council. In certain cases, however,
the private organisations established by groups of employers and their
workers, may replace the Cantonal Boards. Various Cantons have,
in application of these provisions, passed Acts or Orders setting up
Conciliation and Arbitration Boards. How employers' and workers'
organisations are represented on these boards has already been described ; it is therefore unnecessary to revert to this point. But some
reference to the cantonal provisions relating to Conciliation Boards,
and resulting in a restriction of the right to strike, is desirable.
Geneva. (Order of n October igi&-6 December IQIQ, section
18) : Propaganda in favour of a strike, lockout, or boycott is
prohibited, as long as the regular arbitration procedure has not
terminated.
Aargau (Order of 18 June 1923, section 16) : Any resort to
active measures while the matter is being dealt with by a Conciliation
Board is prohibited.
Similar measures have been adopted in the following Cantons :
Vaud (Act of 6 September 1921, section 15).
Lucerne (Order of 22 February 1919-.3 April 1919, section 28).
Schwyz (Order of 28 November 1922, section 12).
Schaffhausen (Order of 20 March 1918, section 28).
Appenzell, Outer Rhodes (Order of 5 June 1920, section 28).
Valais (Act of 20 May 1921, section 17).
Neuchâtel (Order of 9 April 1918, section 19).
Zurich (Order of 9 August 1923, section 50).
St. Gall (Act of 23 November 1922, section 34).
In addition, regulations applicable to contracts of employment
and collective agreements may be of such a character as indirectly
to limit recourse to active measures, in view of the conséquences
entailed by such action.
Limits Imposed by the Civil Law
The effect of strikes on the contractual relationship arising out
of a contract of employment between employers and workers is
rendered apparent by the general character of the Federal Tribunal's
decisions, in which it is recognised that a contract of employment is
not affected by a strike, and does not consequently authorise workers
to cease work without giving notice, as provided for in the agreement.

407

SWITZERLAiíD

A decision of the Federal Tribunal dated 5 July 1905 1 lays down
that " workers belonging to a vocational organisation by which a
strike has been declared are liable to their employer for damages in
the event of having quitted work without giving previous notice."
Another decision, dated 13 June 1906 2 , lays down :
It is clear that the defendants (workers on strike) by quitting their
work without previous notice, and though their employers had not failed
to carry out the obligations imposed by the contract of service concluded
between the parties, have committed a breach of this agreement without
adequate justification.
This interpretation was confirmed by the Federal Tribunal in
a decision dated 11 November 1919 3 , which stipulates that : " The
contracts of employment entered into by the plaintiffs (a factory)
and the workers employed therein were unquestionably violated as
a result of the repeated strikes which occurred on 9 and from 12
to 14 November 1918. The workers were obliged, by the terms of
these agreements, to work; by refusing to do so they have violated
an obligation." The position is therefore perfectly clear : as regards
the civil law, a worker who quits his employment during a strike,
without obtaining regular leave, or without any legitimate reason for
cancelling his agreement, has committed a breach of the contract of
employment binding him to his employer, and is therefore liable for
damages in respect of any prejudice caused by his action.
The question whether the fact that a collective agreement can
be held to exclude the possibility of a resort to a strike or lockout
by either of the parties concerned has been made the subject of a
judgment of the Federal Tribunal of 4 November 1919.
In that case the firm of Fritz Marti, Ltd., of Berne, brought an
action for damages against the workers in its employ who had ceased
work during the general strike. The firm based its claim on the
following provisions of the collective agreement concluded with its
workers : " In the event of a collective dispute, the party responsible
for 3 breach of the agreement without legitimate grounds shall be
liable to an agreed penalty of 1,000 francs.
The Berne Cantonal Court of Appeal gave judgment in favour
of the plaintiffs. But the defendants appealed to the Federal Tribunal, which allowed the appeal. In the judgment a clear distinction
1
2
3

Journal des Tribunaux, et Revue Judiciaire, 1905, pp. 456 e t
Ibid., 1906, pp. 74 et seq.
Ibid., 1920, pp. n i et seq

sec

408

FREEDOM OF ASSOCIATION

is m a d e between a w o r k e r ' s contract of employment, and a collective
agreement :
The contracts of employment entered into between the plaintiff
company and its workers were unquestionably violated as a result of
the repeated strikes which occurred on 9 and 12, 13 and 14 November
1918 : under these contracts the workers were obliged to work ; by
refusing to do so they violated their obligations. The question whether
these two strikes constituted a breach of the collective agreement
concluded between the plaintiff company and the defendant association
is quite different. A collective agreement is not a contract of service.
A breach of a collective labour agreement therefore only occurs when
the actual provisions of the agreement itself, or the general rules for
its interpretation, are violated ; conversely, the mere fact that a breach
of the contract of service has occurred does not necessarily imply a
violation of the terms of the collective agreement. . .
A n d , after stating that collective agreements are generally only
intended to apply to certain portions of the contract of employment,
the judgment continues :
If it were admitted that such a thing as a general obligation to avoid
disputes was involved, the effects of such a stipulation would go far beyond
their ostensible purpose. On the other hand, the parties to an agreement
are obviously at liberty to insert explicit provisions therein, which
constitute a general obligation to avoid disputes ; where they have omitted
to do so, the obligation only refers to the conditions of employment
regulated by the agreement. The obligation is generally recognised as
possessing such a limited effect : in other words, as far as it is intended
to prevent any action against the agreement itself being taken '.
T o sum u p , participation in a strike not directed against a collective labour agreement itself, or one of its provisions, does not necessarily constitute a violation of the a g r e e m e n t ; b u t any collective
action directed against the agreement itself, or any portion thereof,
would constitute such a breach.
General stipulations prohibiting t h e contracting parties from
having recourse to coercive measures, such as strikes or lock-outs,
d u r i n g the validity of the agreement can b e inserted in the agreement ;
and in that case the violation of these provisions would constitute a
breach of i t 2 .
But both parties remain perfectly free to insert
such stipulations, or not, as they please, in the body of the agreement.
A n d w h e r e provisions of this k i n d occur, t h e y often constitute a
counter-obligation on the part of the workers, agreed to in return
for other concessions 3 .

A.T.F., Vol. 45, II, pp. 559 et seq.
On this question see : L. CLERC, op. cit., pp. 160-171 ; La Suisse
économique et sociale, Vol. I, pp. 526-533.
» Ibid., Vol. I, p. 529.
2

CONCLUSION

The trade union movement in the nineteenth century in Switzerland followed the general industrial and economic evolution of the
country; and, except for a few cantonal restrictions dating from
the beginning of that century, it encountered no serious legal obstacles.
When in 1848 freedom of association was guaranteed by Article 46
of the Federal Constitution, this was little more than a confirmation
of the existing state of things. When the Constitution was remodelled
in 1874 Article 46 became Article 56 ; and its provisions still apply.
No special Acts, relating exclusively to trade union law, exist
in Switzerland ; and measures concerning the right of association in
general also apply, without modification, to trade union activity.
All associations, including. trade unions, enjoy great freedom of
action, subject only to the limits specified in Article 56; nor does the
Federal Constitution contain any provisions enabling freedom of
association to be suspended throughout the whole country. As long
as there is nothing in the aims or methods of associations which is
unlawful or contrary to public order, they enjoy almost unlimited
freedom of action. They are not subject to any special form of supervision and control, nor is any previous authorisation required.
Swiss citizens are, under the Constitution (and this applies in
practice to all persons domiciled on Swiss territory), at liberty to
join trade unions; there is some doubt, however, whether private
individuals are at liberty not to combine. Can any pressure be
exercised on private individuals to compel them to join a trade union?
Conversely, can anyone be prevented from joining a union? The
Federal Tribunal has recently decided that any pressure exercised
on individuals for this purpose is unlawful, if they are thereby prevented from obtaining employment, or if the methods employed afe
obviously disproportionate to their ostensible purpose.
In one respect, however, it seems likely that freedom of association
will shortly become liable to an important restriction. If the proposed

410

FREEDOM OF ASSOCIATION

Staff Regulations for federal officials are adopted, the latter will not
be permitted to belong to an association by which strikes are regarded
as a legitimate means of action 1.
To sum up, the right of association in Switzerland has given rise
to comparatively little regulation ; a fact which would seem to prove
that a very considerable degree of freedom of association, and therefore
of trade union liberty, does in fact exist.

* l This study was already in the press when a final decision was
reached concerning the Public Servants Act. After long debates, the
National Council and the Council of States adopted this measure during
the session of June 1927. The Act has not yet come into force, however,
since the time limit allowed for a referendum (4 Oct. 1927) has not yet
expired.

BIBLIOGRAPHY

BABEL, Antony : Essai sur les causes et le développement
législation du travail en Suisse. Geneva, 1925.
BONHÔTE, Serge : La liberté d'association
Neuchâtel, 1920.

en droit public

de la
fédéral.

BOOS-JEGHER, Ed.: "Schweizerischer Gewerbeverein" in Prof.
N. REICHESBERG'S Handwörterbuch der Schweizerischen
Volkswirtschaft,
Sozialpolitik und Verwaltung.
BÜCHER, K.: " D i e schweizerischen Arbeiterorganisationen", in the
Zeitschrift für die gesamte Staatswissenschaft,
Vol. 44 (1888).
BURCKHARDT, W . : Kommentar
sung, 2nd ed. Berne 1914.

der schweizerischen

CLERC, L . : Essai sur le contrat collectif de travail.
sanne, 1922.

BundesverfasThesis.

Lau-

CURTÍ, Th. : Classes ouvrières, le socialisme dans la Suisse au XIX*
siècle, Vol. I I I .
des.

FARNER, Hans : Die Geschichte
Zurich, 1923.

des schweizerischen

Arbeiterbun-

FRÖHLICH, R.: " Die Friedenspflicht im Gesamtarbeitsvertragsverhältnis " in Zeitschrift des Bernischen Juristenvereins, Vol. LIV, 1918,
P. 417Gesetzliche Massnahmen zur Einschränkung
der
Arbeitskämpfe.
Publications of

the

ZENTRALVERBAND

SCHWEIZERISCHER

ARBEITGE-

BERORGANISATIONEN (Central Federation of Swiss Employers' Associations), No. 3, 1913.
GREULICH, H . : " Schweizerischer Arbeiterbund" in REICHESBERG'S

Handwörterbuch
Verwaltung.

der Schweizerischen

Volkswirtschaft,

Sozialpolitik

HOFSTETTER-LEU : Der Boycott nach schweizerischem

und

Recht. Berne,

1911.

HÜPPY, J.: Geschichte
Zurich, 1910.

des schweizerischen

LANG, Otto : Das Vereinsrecht
in der Wirklichkeit. 1891.

der Arbeiter

Gewerkschaftsbundes
in der Verfassung und

412

FREBDOM OP ASSOCIATION

MANN, Leo ':
Zurich, 1923.

Der

M E R K , Aug.:

schweizerische

Eisenbahnerverband.

"Gewerkschaftsbewegung"

BERG'S Handwörterbuch
und Verwaltung.

der Schweizerischen

MoYNiER, Gustave : Les institutions
and Paris, 1867.

Thesis.

Prof. N. REICHES-

Volkswirtschaft,

Sozialpolitik

ouvrières de la Suisse.

Geneva

RAPPARD, W . - E . : La Révolution industrielle et les origines
protection légale du travail en Suisse. Berne, 1914.
RÖSSEL, V.: Manuel du droit fédéral des obligations.
sanne and Geneva, 1920.

de la

2nd éd. Lau-

RÖSSEL, V. and MENTHA, F. H . : Manuel de droit civil suisse.
sanne and Geneva, 1922.
SAVOY, Dr. A.: La corporation, son rôle, ses institutions.
any indication of date or place of publication.)
SAXER, A. : Die schweizerische Gewerkschaftsbewegung
wart, mit besonderer Rücksicht auf die Entstehung
der
tionalen Richtung.
Berne, 1924.
SCHERRER,
Lucerne, 1906.

Robert,

Der

schweizerische

SCHOLLENBERGER : Bundesverfassung
nossenschaft.
Berlin, 1905.
—
Grundriss
schen Kantone.

Lau-

(Without
der Gegenfreiheitlichna-

Metallarbeiter-Verband.

der schweizerischen

des Staats- und Verwaltungsrechts

der

Eidge-

Schweizeri-

Streikverpflichtungen.
Publications of t h e ZENTRAL VERBAND SCHWEIZERISCHER ARBEITERGEBERORGANISATIONEN
(Central Federation of

Swiss Employers' Associations), No. 3, 1913.
T H I E S , F . : " S t r e i k s und Lohnbewegungen" in Prof. N. REICHESBERG'S Handwörterbuch der Schweizerischen Volkswirtschaft,
Sozialpolitik
und Verwaltung.
TOENDURY, H . : " Gewerkschaften, Gewerkschaftsbund"
Historisch-Biographisches
Lexikon der Schweiz.
Neuchâtel.
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the

et sociale, published under the instructions of

the Swiss Federal Council by the F E D E R A L DEPARTMENT O F NATIONAL
ECONOMY, 2 Vols., 1925.

WAGNER, R.: " Zur Rechtsprechung über Boycott und Verdrängung "
in Rote Revue, 1926, pp. 305 et seq.

SWITZERLAND

4I3

PERIODICALS, ETC.

Journal des Associations
Revue
Rote

syndicale

patronales

suisses.

suisse.

Revue.

La Lutte

syndicale.

Gewerkschaftliche
L'Action

Rundschau.

sociale.

Evangelisch-soziale

Warte.

Constitutions and reports of employers' and workers' organisations.
Feuille fédérale de la Confédération
Bulletin

sténographique

Arrêts du Tribunal
Schweiz.

officiel de l'Assemblée

fédérale

suisse.

fédéral.

Juristen-Zeitung.

Journal des Tribunaux
Semaine

suisse.

et Revue

judiciaire.

ABBREVIATIONS

F.F.

A.T.F.

Feuille fédérale de la Confédération
Federal organ)

suisse (the official

Arrêts du Tribunal fédéral (Decisions and Judgments
of the Federal Tribunal).