INTERNATIONAL
LABOUR
OFFICE
STUDIES AND REPORTS
Series A (Industrial Relations) No. 30
FREEDOM OF ASSOCIATION
VOLUME III
GERMANY, FORMER DUAL MONARCHY of AUSTRIA-HUNGARY,
AUSTRIA, HUNGARY, CZECHOSLOVAK REPUBLIC, POLAND,
BALTIC STATES; DENMARK, NORWAY, SWEDEN, FINLAND
GENEVA
1928
PREFACE
In the introduction to 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 third volume, now published, comprises monographs on
freedom of association in Germany, Former Dual Monarchy of Austria-Hungary, Austria, Hungary, Czechoslovak Republic, Poland,
Baltic States, Denmark, Norway, Sweden, and Finland.
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
v
GERMANY
CHAPTER I : History and Present State of the Trade Union
Movement
§ i. Introduction and Legislative Outline
§ 2. Survey of Existing Trade Organisations and their Development
13
CHAPTER II : The Legal Conditions
. . . .
27
§ 1. The Legislative Basis of • Freedom of Combination . . .
§ 2. Legal Status of Trade Associations
27
35
CHAPTER I I I : The Activities
of Trade Unionism
of Trade Associations
§ 1. Internal Activities and Participation in State Affairs . .
Internal Activities . . :
The Participation of Trade Associations in the State . .
§ 2. Co-operation in the Regulation and Application of Conditions of Labour
Trade Combinations and Works Councils
Trade Combinations and Collective Agreements . . . .
Trade Combinations and Arbitration
§ 3. Trade Disputes
i
i
45
47
47
50
55
55
60
67
71
SUMMARY AND CONCLUSIONS
92
BIBLIOGRAPHY
96
ABBREVIATIONS
9S
APPENDIX
100
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
PRELIMINARY N O T E
103
The Kingdoms and States Represented in
the Imperial Parliament
§ 1. Historial Survey
Early History
The Prohibition of Combination
(1731-1867)
103
103
104
— X —
Page
Freedom of Combination (1867-1918)
Freedom of Association
Freedom of Combination
The Compulsory Corporations (1859-1918)
§ 2. The Evolution of Trade-Unionism
Employers
Workers
§ 3. Period of the World War
108
108
109
114
116
116
119
123
Territories of the Hungarian Crown
§ i . Early History up to 1867 .
. .
§ 2. Trade Unionism (1867-1914)
Freedom of Association and Combination in Principle (18721873)
More Rigorous Methods in Administration
Workers' and Employers' Associations
§ 3. Period of the World War
125
126
126
127
129
131
AUSTRIA
§ 1. Development since 1918
Legal Bases .
Present Development of Trade Combinations
Workers
Employers
Civil Servants
Compulsory Associations
§ 2. Legal Conditions of Combination
Legal Principles . . . •
General
Freedom as Opposed to Compulsion
Internal and External Working of the Trade Combination
Persons Covered
Formation of the Trade Combination
Working and Internal Organisation
Supervision by the Public Authorities . . . . . .
Dissolution
§ 3. Activities of Trade Associations
Objects and Functions
Internal Activity of the Trade Combinations
Participation in State and Public Activity
Participation in the Establishment and Observance of
Labour Conditions . . .
Combination and the Works Council
Combination and Collective Agreements
Combination and the Settlement of Labour Disputes
Militant Activit3" and its Limits
133
133
134
134
136
136
138
139
139
139
140
141
141
142
142
143
144
145
145
147
148
149
149
151
153
154
SUMMARY
161
BIBLIOGRAPHY
163
— XI —
HUNGARY
Page
§ i. Development since 1918
§ 2. The Legal Position of.Trade Associations
General
Freedom of Membership
Conditions of Admission
Founding, Existence, and Dissolution
§ 3. Activities of Trade Associations
Internal . . . .
. . . . .
Participation in State Activities and Public Life . . . .
Participation in Determining and Enforcing Conditions
of Labour
Collective Disputes
165
172
172
173
173
X74
177
177
179
180
181
CONCLUSION
184
BIBLIOGRAPHY
186
CZECHOSLOVAK REPUBLIC
§ 1. Development since 1918
Legal Bases
Present State of Development of Trade Associations . . .
Workers
Employers
Compulsory Organisations
§ 2. Legal Conditions of Combination
The Individual Right of Association
Internal and External Working of the Trade Association .
Persons Included
Formation, Working and Dissolution of the Trade
Associations
§ 3. Activities of the Trade Association
Internal Activity
Participation in State and Public Activity
Participation in the Establishment and Observance of
Labour Conditions
Activity in Collective Disputes
CONCLUSION
,.
BIBLIOGRAPHY
187
187
igt
191
.194
195
195
196
196
196
197
200
200
201
202
204
207
208
POLAND
CHAPTER I : Evolution and Present Position of Trade Unionism
§ 1. Trade Unionism before the Reconstitution of Poland as
an Independent Country
Workers' Organisations
Former Russian Poland
Former Prussian Poland
Former Austrian Poland
.
Employers'Organisations
209
209
209
209
212
213
215
— XII —
Page
§ 2. Trade Unionism after the Reconstruction of Poland as
an Independent Country
§ 3. Present Position of Trade Unionism
Employers' Organisations
Workers' Organisations
CHAPTER II : Conditions governing
of Trade Unions
227
§ 1. The Legal Basis of the Right of Association . . . . .
Legislation of the States Formerly Ruling Poland . . .
Polish Legislation
227
227
228
§ 2. Conditions governing Legal Existence of Trade Associations
Constitution of Trade Associations . . . »
Basic Conditions
.'
Formalities to be Fulfilled
Functions and Dissolution of Trade Unions
Interior Organisation
State Supervision
229
231
231
234
236
236
237
CHAPTER III : Possibilities
the Existence
216
217
217
218
of Trade Union A ction
240
§ 1. Activity in the Sphere of Civil Law
240
§ 2. Activity in the Social and Economic Sphere
240
§ 3. Representation of Occupational Interests in State Institutions
The Part Played by Trade Unions in the- Conclusion of
Agreements and the Settlement of Collective Disputes
The Right to Combine and to Strike
240
241
243
CONCLUSION
245
BIBLIOGRAPHY
247
BALTIC STATES
ESTONIA, LATVIA, AND LITHUANIA
INTRODUCTION
249
General History
The Economic, Social, and Political Situation
Effects on Trade Unionism and its Legal Status
249
250
252
Estonia
§ 1. The Present Position of the Unions
253
§ 2. Existing Legislation
The Foundation
The Legal Status of Trade Unions
Legal Regulations for Founding and Activity
Dissolution
Possibilities of Action
255
255
256
257
259
261
.
.
— XIII —
Latvia
Page
§ i. Survey of the Existing Organisations
§ 2. Existing Legislation
The Legal Foundation
The Legal Status of Trade Unions
Regulations for Founding and Activity
vSupervision and Dissolution
Possibilities of Action
264
265
265
266
266
269
270
Lithuania
§ 1. Survey of the Present Situation
273
§ 2. Existing Legislation . .
Founding and Registration
Supervision and Dissolution
Possibilities of Action
274
274
276
276
SUMMARY
278
BIBLIOGRAPHY
279
DENMARK
§ 1. History and Present Position of the Trade Union Movement
Origins and Development
Present Position of the Trade Union Movement . . . .
§ 2. The Conditions governing the Legal Existence of Trade
Asspciations
Legal Status
The Constitution of Trade Associations
Formation and Dissolution . .
Legal Personality and its Consequences
§ 3. The Activities of Trade Associations
Internal Activities and Participation in State Activities . .
Collective Agreements and the System of Conciliation and
Arbitration
Labour Disputes
Forms of Militant Action
The Law on Militant Action
281
281
284
285
285
286
286
287
288
288
290
294
295
296
CONCLUSION
300
BIBLIOGRAPHY
301
NORWAY
§ 1. History and Present Position of the Trade Union Movement
Historical Survey
The Present Trade Union Movement
303
303
307
— XIV —
Page
§ 2. The Legal Conditions governing Combination for Trade
Purposes
The Right to Combine
Legal Status of Trade Associations
.
§ 3. Activities of Trade Associations
Internal Activities and Co-operation with State Authorities
Participation in the Determination and Enforcement of
Conditions of Work
Labour Disputes
Weapons Used
Legal Status
308
308
308
310
310
312
313
313
313
CONCLUSION
320
BIBLIOGRAPHY
321
SWEDEN
§ 1. Historical Survey and Present Position of Trade Union
Movement
Historical Survey
Position of Existing Trade Associations
§ 2. Legal Status of Trade Associations .
§ 3. The Activities of Trade Associations
Internal Activities and Co-operation with the Public
Authorities
Share in Determination and Enforcement of Conditions
of Work
Collective Agreements
Trade Unions and Managerial Control
Trade Associations and Conciliation
Trade Disputes
CONCLUSION
323
323
330
334
335
335
337
337
341
342
344
347
BIBLIOGRAPHY
350
FINLAND
INTRODUCTION
CHAPTER I : Growth of Freedom of Association and of the
Associations
§ 1. Limitations of Freedom of Association
353
Industrial
355
355
§ 2. Recognition of Freedom of Association
§ 3. Foundation of the Present System of Legal Protection for
Freedom of Association
CHAPTER I I : The Right of Assembly and Association,
Application
to Trade Combinations
§ 1. Individual Right of Assembly and Association
360
364
and its
372
372
— XV —
Page
§ 2. Regulation of the Exercise of the Right of Assembly and
Association
§ 3. Application to Trade Associations of the Right of Assembly
and Association
CHAPTER III : Legislation
concerning the Activities
of Trade
Associations
§ 1. Trade Associations and the Administration of Labour
Legislation
§ 2. Trade Associations and Regulation of the Conditions of
"Work
§ 3. Trade Associations and Collective. Labour Disputes . . .
374
378
388
388
391
395
CONCLUSION
402
BIBLIOGRAPHY
407
GERMANY
CHAPTER I
HISTORY A N D P R E S E N T S T A T E OF T H E TRADE
MOVEMENT
UNION
§ 1. — Introduction and Legislative Outline
N o n e of the modern questions connected with freedom of
association 1 can be correctly understood unless they are first
examined in the light of their historic development. Whilst, therefore, it has heen found necessary to give here an historical survey of
the law relating to the subject, it is on account of its bearing on
present-day problems, and will be confined to what is necessary for
t h a t purpose. T h e state of the law in G e r m a n y before the war is
vital in many respects to the present survey, in t h a t it offers an antithesis to the present position and so throws it into stronger relief.
T h e details of this latter period will accordingly, in so far as they are
still of interest, be given in the main body of the work, while in the
historical section only general problems will be dealt with so as to
supply a basis for understanding what follows. Therefore, in
1
Freedom oí association and freedom of combination are generally
used in a synonymous sense in this survey. On p. 76 an exception has
had to be made in order to translate the distinction between the German
words " Vereinigungsfreiheit " and " Koalitionsfreiheit ". The importance of the distinction there made is that " Vereinigungsfreiheit ", the
term used in the German Constitution, Article 159, is generally considered
not to include the right to strike, which right is included in the term
" Koalitionsfreiheit". It is realised that the English terms " freedom of
association " and " freedom of combination " do not adequately convey
this distinction.
A distinction is also drawn by the German Constitution between
freedom of association ( Vereinigungsfreiheit)
and the right ta form associations (Vereinsrecht)
(see pp. 30 et seq.) The association in the latter
sense (Verein) signifies a combination with a certain degree of stability
and permanence.
Freedom of Association
i
FREEDOM OP ASSOCIATION
determining the starting-point of this historical survey, the object
of the study must be taken into account.
Germany already had experience of craft unions at the close of
the Middle Ages ; not only the guilds, in which the contrast between
employer and employed was of less social importance, but organisations formed as a result of this antithesis, namely, the associations
of journeymen. They bear a certain relationship to modern unions,
which appears in their activities. Since the fourteenth century it
has often been described how journeymen in combination laid down
their work on account of wage disputes and joined hands with alliances
of journeymen in other towns ; how, on the other side, the guilds
appealed tc the public authorities and set legislation in motion in
order to suppress these movements ; and how finally force was
employed ; but how even then the struggles did not end. This
similarity with the state of affairs of to-day must have arisen from
similar causes and motives, which must be looked for in the social
situation.
The fundamental difference, however, which prohibits the
description of these endeavours of the Middle Ages as a struggle for
freedom of combination, must not be ignored even though it was a
question of acquiring " freedom of association ". Freedom of combination in the sense generally employed to-day exists only in relation
to the present economic system. Associations and their struggles
between the fourteenth and the end of the eighteenth centuries were
adapted to the mediaeval handicraft organisations, the foundation
of which remained unshaken, even though the organisation itself
may have perished and decayed. The real history of freedom of
combination commences with the modern economic system, at about
the close of the eighteenth or the beginning of the nineteenth century.
It is here that the survey should begin. But since in history
continuity is never broken, since old and new continue side by side,
and under certain conditions the battle between them moulds the
new development, former conditions must be examined where they
are the forerunners of the new. The prohibition of combination is
the fact which begins the history of freedom of combination, and it
is this fact which needs explanation.
The history of these restrictions on combination is connected
with, the history of the absolute State, which, in contradistinction to
that of the Middle Ages, under the influence of Roman law, made
the combination of its subjects in associations dependent on its
GERMANY
3
express sanction. T h e main idea underlying this was its concern for
its own security, and the Decrees expressly prohibiting association
were primarily directed against the unions of journeymen which had
descended from former centuries and which presented a possible
danger to this security. Their power, which by reason of the
solidarity of the journeymen extended throughout the E m p i r e , and
their esprit de corps, which was dismayed by neither terrorism nor
bloodshed, were not in conformity with the supremacy of the State,
which only recognised obedient subjects. T h e Imperial Statute of
1731 accordingly not only declared all existing fraternities and
j o u r n e y m e n ' s unions dissolved, but forbade the local authorities to
permit any meetings or associations of journeymen in the future.
T h e Constitution of the old German Empire required t h a t Imperial
law, in order to become effective, should be proclaimed as State law
in the individual territorial States. As the individual States h a d an
entirely free h a n d in this matter, difficulties arose in rendering the
law effective ; the free towns in particular, as industrial areas,
opposed it, a n d the larger States feared that their trades would be
prejudiced in view of the internal disruption in G e r m a n y unless the
Imperial Statute were enforced in all the other States also. Otherwise the journeymen would simply move to the State which h a d
refrained from proclaiming the Statute. I n this way had all former
Imperial prohibitions traceable back into the sixteenth century
remained ineffective. Nevertheless, by virtue of the Imperial Statute
of 1731, police and guild regulations directed against combinations
among master-tradesmen a n d especially a m o n g j o u r n e y m e n were
issued in the G e r m a n States during t h e course of t h e eighteenth
century 1, and towards the end of that century it is fairly generally
found that the States composing the G e r m a n Empire were issuing
formally uniform prohibitions against combination 2. T h i s did not
prevent the combinations of journeymen from remaining undissolved,
and the last decade of the eighteenth century in particular witnessed
a flood of workers' struggles in Germany, some of which closed with
the success of t h e journeymen (in the form of increased wages) a n d
were suppressed with force b y the authorities only where absolute
1
For example, Baden, in section 9 of the General Guilds Regulations
of 1760, included, among other severe measures, a prohibition of the
assembly of masters as well as of men without sanction and supervision
of the Head Bailiff, subject to a fine of 10 gulden.
2
Cf. the Prussian Civil Code of 1794 and the Edict of 1789, which
prohibited all secret assemblies and organisations.
FREEDOM OF ASSOCIATION
4
necessity demanded. All these movements still breathed the old
guild spirit.
Only under the influence of French, especially the Napoleonic,
legislation were the traditional guild regulations gradually abolished
and freedom of trade introduced. Simultaneously, however, in
accordance with the individualistic spirit of the legislation, which
no longer recognised any intermediary between the State and the
citizen, the existing restrictions on combination were not only not
suspended but were, on the contrary, considerably tightened. The
French regulations l appeared in the Franco-Rhenish Penal Code ;
the rights of association and assembly of journeymen and servants
(Diener) still existing were abrogated by Decree in Saxony in 1810,
and provisions to protect persons willing to work were introduced
into the law in Germany for the first time. Section 2 of the Decree
orders the cessation of all " compulsion among journeymen and
servants, experience of which shows that the better and more cultured
among them are ' frequently tempted to associate themselves with
the unlawful resolutions, agreements and actions of the rest ", and
charges the local authorities to afford persons complaining of coercion
by such methods the necessary support against the offenders, while
absolving the authorities from all responsibility. In this severe
anti-combination legislation of the reactionary first half of the nineteenth century, account must be taken of the political influences
which, as a matter of fact, characterise the entire further development
up to the present day. Proof of this is contained in the 1835 Decree
of the Federal Assembly of the German Confederation, which took
the place of the old German Empire. It was thought that the
revolutionary party in Germany wished to make use of the wellorganised journeymen as an instrument of revolution, for the fact
that the German journeymen wandered abroad would permit the
revolutionaries to widen their net, and on their return home these
journeymen would serve to propagate revolutionary principles. It
was therefore determined that migration to France, Belgium, and
Switzerland must be prohibited, and that sharp police supervision
must be exercised over journeymen wandering within Germany. This
Decree was put in force in the individual States, but does not appear
to have been very effective, for still further steps were taken. The
Kingdom of Saxony petitioned the Federal Assembly to prohibit all
1
Sections 414-416 of the Penal Code.
GERMANY
5
combinations and kindred activities of journeymen throughout
G e r m a n y ; this led to the Federal Decree of 1840, in which t h e
Governments united in severe measures against journeymen w h o h a d
committed offences by participation in prohibited associations,
agreements, boycotting, seditious proclamations, etc.; order was to
be maintained by means of police supervision, an exchange of lists
of penalised journeymen, forcible transportation, and similar
measures.
F r o m a political point of view, however, the power of the German
Confederation lay in the individual States. Their legislation is
therefore of greater import to future developments. I n their industrial
legislation in particular, freedom of trade was postulated on t h e one
• h a n d , while, on the other, combinations were prohibited. Sections
181, 182, 183, and 184 of t h e Prussian Industrial Code of 1845 rendered
agreements for stoppages of work between independent industrial
workers or industrial employees liable to severe penalties, forbade
associations of workers except with police sanction, and declared
breach of contract a punishable offence \ A certain formal equality
before the law was indeed established, as in the F r e n c h legislation,
between workers and employers, by likewise prohibiting combinations
among the latter. T h e prohibition was, nevertheless, directed chiefly
against the workers. T h e preamble states :
It may be assumed that associations of factory owners could quickly
reduce a large body of workers to a state of distress, a state of affairs
which would be highly detrimental to the safety of property and morality
and would drive experienced workers and their families from the country.
It is certainly to be feared, however, that combinations of workers would
endanger the existence of works, would easily lead to tumult and riots,
and would threaten the public safety.
The practical significance of the prohibition of combination was not
to prohibit the workers entirely from common discussion of their affairs,
but to prevent agreements to stop work aimed at obtaining higher wages
or other concessions 2.
Henceforth, then, by reason of the economic revolution already
in progress, it is a question of actual restrictions on combination in
1
Similarly, the Hanover Penal Police Code for 1847, t n e Industrial
Code of that State for 1847, and the Industrial Code of Wurtemberg
for 1836.
a
Quoted in RITSCHER : Koalitionen und Koalitionsrecht, pp. 15S159. Stuttgart and Berlin, 1917.
6
FREEDOM OF ASSOCIATION
the modern sense of the word '. T h e first period of the development
of t h e r i g h t of combination in G e r m a n y may therefore be regarded
as closing towards the middle of the nineteenth century ; it ends
with legislation of a n a t u r e generally hostile towards combination.
W i t h the advent of the new economic conditions, the new
restrictions were still less effective t h a n the old ones to prevent the
workers from forming combinations, going on strike, and even being
led into excesses. A l t h o u g h in the reactionary period following on
the temporary abrogation of the restrictions on combination by the
Revolution of 1848, Prussia extended such bans b y the Act of 1854 2
to servants, agricultural workers, and ships' crews, the regulations
were but little applied to the occasional strikes and were practically
without significance 3 . But the .workers' organisations formed in t h e
years 1848-1849 were — mainly from political motives — suppressed.
W i t h the advance of industrialisation and the advent of a liberal
trend of economic thought, the existing restrictions on combination
could no longer be maintained, and wide classes of citizens advocated
their removal. England now supplied t h e legislative model, in
emulation of which, Saxony, the most advanced German State from
a n industrial point of view, was the first to remove the restrictions
on combination. T h e standpoint adopted in the preamble to the
Act apparently was that an agreement of a n y k i n d for the purpose
of enforcing certain wage rates was not in itself punishable, but, on
the one hand, such agreements could not be enforced by law, while,
on t h e other, it was in the public interests to oppose all unlawful
means of executing them, even when t h e y did not actually bear the
stamp of criminal coercion. T h e r e was, however, no reason w h y
within these limits the agreements arrived at between persons plying
similar trades should be treated as criminal offences b y the State.
U n d e r the rule of open competition as recognised by the principle
1
In Prussia the number of factory workers
of all kinds was
Journeymen and apprentices
i8i£
186,612
179,020
1837
1846
656,592
379,313
1849
( 423 of c.
1.534 of c.
Number and capacity of steam engines j 7 J 5 0 0 h p
38,800 h.p.
From DIFTERICI : Mitteilungen des Statistischen Büros in Berlin
184c, pp. 82 et seq., quoted in RITSCHEE, op. cit., pp. 187 et seq.
2
The Federal Council Decree of 13 July 1854, obliged all the German
Federal States to dissolve all existing workers' unions and fraternities
which pursued Socialist and Communist aims.
3
A prohibition of combination among miners and foundry workers
was included in the Prussian Mine Act of 21 May i860.
GËRMANV
7
of freedom of trade a n d of free choice of domicile, the k i n d of action
would be successful only if it took into account existing economic a n d
social conditions. I n that event, however, it could not be contrary
to any interests of the State \
T h i s was the first expression in G e r m a n legislation of a view
which was to prevail for half a century. I n Prussia, development
was not so rapid, although finally it was the. Government itself which
instituted the abrogation of the restrictions on combination.
The
General Mines Act of 1865 for the Prussian States maintained the
restricting clauses of the above-cited Act of i860 and thus refused
to grant freedom of combination to the miners. F u r t h e r , an Industrial
Regulation Bill of 1866, the preamble to which is still of interest,
deserves m e n t i o n 2 .
Restriction on combination would naturally
have no practical significance to the employers. Every industrial
employer himself formed, in the eyes of his workers, the most systematic, concentrated, and soundest union. By reason of the power
wielded by the employers, they could form their associations even
in the face of the law, and if necessary surreptitiously, without attracting notice. T h i s would not be lost on the workers and would arouse
the feeling that the restriction existed solely for the benefit of the
employers, with the result that it would provide an incentive to stop
work. T h e mistrust which would accompany this erroneous idea
would eliminate the possibility of peaceful settlement b y a timely
understanding. Combinations for the purpose of striking would be
formed notwithstanding the prohibition, sometimes even b y reason
of it ; in any case the greatest secrecy would accompany their preparation, and they would come to light only, when accomplished.
Amicable settlements would then be difficult.
I t was not until 1869 t h a t the new Industrial Code passed by t h e
new Reichstag of the N o r t h German Confederation secured the
removal of the restrictions on combination, and that sections 152 a n d
153 of the Code provided the foundations upon which the right to
combine in Germany rested until 1918. T h e contents of these sections
were as follows :
Section 152. — All prohibitions and penalties imposed 011 persons
engaged in industry, industrial employees, journeymen, or factory
workers in connection with agreements to combine for the purpose of
securing favourable wage and labour conditions, especially by means of
cessation of work or dismissal of workers, shall be removed.
1
RITSCHER, op.
cit.,
p.
216.
= A Bill submitted to the Prussian Chamber of Deputies in 1862 by
the Liberal Party did not appear on the agenda ; one submitted in 186.5
was turned down by the Upper Chamber.
8
FREEDOM OF ASSOCIATION
Every participator is free to withdraw from such agreements and
associations, and they cannot form the ground either of an action or of a
defence.
Section 153. — Any person compelling or trying to compel others,
by means of bodily force, threats, insults, or boycotting, to participate in
such agreements (section 152) or to carry them out, or preventing or
trying to prevent others by similar means from withdrawing from such
agreements is punishable with imprisonment of not more than three
months, in so far as the General Penal Code provides no heavier penalty.
By virtue of these regulations, freedom of combination has been
granted ; unions formed in consequence were, however, not only
deprived bf the legal protection which all other associations enjoy b y
law, but the general penal law was extended in order to protect the
individual from the union. F o r section 153 only applies to the person
who tries to force others to participate in a union or to prevent their
leaving ; it does not apply to a person who prevents another from
joining a n association or obliges him to withdraw. T h e explanations
in defence of section 152, subsection (2), and section 153 given in
the full session of the N o r t h German Reichstag are characteristic of
the tendencies here displayed : they represent an " indispensable
corollary " to freedom of combination, which otherwise would be a
compulsion to combine ; m a n ' s liberty must be assured.
T h e association itself thus enjoys only a precarious existence.
I t is tolerated, but has no rights. I t enjoys a de facto existence, b u t
not a legal one. Nevertheless, this was a great advance, for as soon
as the restrictions on combination fell away, the organisations crushed
during the period of reaction were able to develop freely again. T h i s
applied chiefly to the workers' unions, which although widely split
u p , had made steady progress right u p to the 'seventies. A s , however,
the support which the law afforded to associations was but slight and
its purport, primarily to remove the restrictions, mainly negative, it
depended thereafter entirely on the attitude of the State what actual
value the acquired freedom of combination should attain. I t may be
said that the State did not assume a sympathetic attitude towards
combinations, especially of workers. T h i s attitude was, as in the
preceding period, largely determined by political motives.
The
workers' associations (employers' associations came less into the
question a t that time) were themselves, owing to their origin, politically biassed '. I n consequence, the " Act against the publicly
1
There were the Lassallians, the Socialistic school led by Bebel and
Liebknecht, who joined forces later, the Hirsch-Dunker liberal trade
unions, etc. These original distinctions remained of decisive importance
in regard to further development.
GERMANY
9
dangerous activities of the Social-Democrats ", called for short t h e
Anti-Socialist Act, which came into force on 21 October 1878, and
remained in force until 1890, could not leave untouched the workers'
associations. Of the twenty-five trade unions counted a t t h a t time,
sixteen (including even politically neutral ones) were dissolved and
their friendly societies a n d newspapers suppressed. F o u r insignificant
unions alone remained \ T h i s Act, which was not directed immediately against trade unions, but only affected them in its application,
nevertheless remained the only legislative A c t limiting freedom of
combination. T h e r e was no lack of a t t e m p t s , however, to restrict
freedom of combination by legislation, especially by the extension
of section 153 of the Industrial Code. T h e so-called " P e n a l Servitude
Bill " (Zuchthausvorlage)
of 1899, which provided very severe
penalties, even possible penal servitude, was m u c h censured, b u t
all attempts miscarried by reason of t h e negative attitude of the
Reichstag. Although there was no direct attack by legislation on
freedom of combination, its exercise was actually greatly restricted
by the administrative authorities and the courts even subsequent to
t h e repeal of the Anti-Socialist Act during the period u p to the war.
T h e first point to consider here is the general right to form
associations and its application to combinations. Until 1908 the law
differed in the individual States ; while in Baden a n d W u r t e m b e r g
especially freedom to form associations was countenanced, in most of
t h e States it was restricted. According to Prussian Regulations of
1850, for instance, the heads of associations designed to take part in
public affairs were obliged to communicate to the local police authorities the rules of the associations a n d a list of the members within
three days of the foundation of the association, and any alterations in
the rules or membership list within three days of their occurrence,
and must supply these authorities with a n y information requested.
Notice must be given of meetings at which public affairs were to be
1
Cf. Adol W E B E R : Der Kampf zwischen Kapital und Arbeit, 3rd
and 4th editions, pp. 77-78 ; Tübingen, 1921. Only the central, not all
local trade unions were included, nor the associations parading under
cover (e.g. of social clubs). But the administration of the Anti-Socialist
Act was not uniform ; in Wurtemberg, Hessen, and Brunswick, for
instance, it was less strictly carried out than in Saxony, Prussia, or
Bavaria ; occasionally periods of the severest oppression alternated with
a more benevolent attitude. In consequence, new organisations were able
to establish themselves on a local basis, e.g. as friendly societies.
(Cf. ZWING : Geschichte der deutschen freien Gewerkschaften,
pp. 27
et seq. ; Jena, 1922.)
FREEDOM OF ASSOCIATION
IO
discussed or deliberated, a n d the police might send representatives to
them. T h e latter were entitled to dissolve the meeting if interpellations or proposals were discussed which contained a request or
incitement to partake in illegal acts. W o m e n , apprentices, a n d students m i g h t n o t be accepted for membership of associations which h a d
political objects on t h e agenda of their meetings, nor could they participate in meetings or conferences of such associations. F i n a l l y ,
political associations m i g h t n o t even combine for common purposes
with other similar associations \ These legal provisions were applied
by t h e authorities to t h e trade unions, as the endeavours of a union to
ameliorate t h e professional a n d social status of members of a trade
w e r e regarded as " public affairs " in t h e sense of t h e regulations.
T r a d e unions were consequently subjected to treatment varying in
its restrictive character in each of t h e Federal States.
Not until 1899 was prohibition of association removed b y law ;
b y t h e Imperial Associations A c t of 1908 t h e right to form associations in Germany was uniformly regulated a n d many alleviations were
introduced. T h e restrictions of t h e k i n d referred to above contained
in t h e A c t applied mainly to political associations. B u t because the
regulations of this law concerning political associations were frequently extended in administrative practice to trade unions, t h e latter
were always in danger of having in this way their freedom of action
restricted 2.
Outside t h e Associations A c t , too, t h e police found opportunities
to interfere in t h e sphere of activity of trade unions, especially after
the so-called " P u t t k a m m e r Edict " of 11 August 1886, b y which
the local authorities invested with police functions were instructed
to intervene energetically w h e n appealed to b y a person w h o claimed
to have been injured, in cases which lay midway between t h e offences
within t h e scope of t h e penal law a n d t h e lawful exercise of t h e r i g h t
of combination, b u t which bore to a certain degree t h e stamp of illegal
violence (a pretext was always available in t h e so-called protection
of persons willing to work) 3 . I n many cases — in all those in which
it was a question of infringing penal regulations — there was a right
of appeal to t h e courts against t h e acts of t h e authorities, a n d therefore t h e decision as to what m i g h t a n d what m i g h t not be considered
1
2
Similar regulations in Saxony, Bavaria, etc.
N E S T R I E P K E : Das Koalitionsrecht
IQI33
W E B E R , op. cit., pp. 44 et seq.
in Deutschland,
pp. 184 et seq.
GERMANY
II
a justifiable exercise of the right of freedom of combination depended
on the attitude of the courts, at this period especially of the criminal
courts. Attempts were made to show, from a legal standpoint, how
greatly the judge was influenced in his outlook by social considerations when dealing with section 153 of the Industrial Code '. Prior
to 1900 the administration of the law by the courts h a d been
influenced by the patriarchal, conservative view, according to which
a worker who fights for better conditions of work was straining
against " divinely appointed dependence "; a t the beginning of the
twentieth century, however, a change had occurred, and the standpoint had been adopted of regarding capital and labour, t h e employer
and the working class, as factors in production of equal value, w h i c h
carried on by means of their strikes and lockouts a struggle between
private interests only concerning the public welfare under certain
conditions.
I t is attempted to show the change in social views on t h e
administration of justice by reference to the criminal statistics of
offences " in relation to interference with the right of freedom of
combination of industrial workers " (section 153 of the I n d u s t r i a l
Code) for the years 1903 to 1912. T h e y show t h a t proceedings were
instituted against 10,536 persons in all, of whom 6,373 w e r e sentenced
and 4,163 discharged ; this is a ratio of 60.5 t o 39.5 per cent. Of
686,539 persons employed in 1906 in works affected by strikes, a n d
of whom 272,218 persons were themselves on strike, t h e ratio
sentenced in accordance with section 153 was 1.6 per 1,000 employed
and 4.03 per 1,000 strikers. T h e corresponding ratios in 1912 were
only 1.1 and 2.3.
Consideration of the judicial administration of section 153 alone
supplies, however, a very one-sided view ; it m u s t not be forgotten
that, on the other hand, the courts took into consideration, in dealing
with trade union actions, a number of other regulations in the general
Penal Code, and numerous police orders, many of which could be
applied only by adopting a narrow interpretation of the l a w 2 .
Freedom of combination was indeed so restricted that Brentano
received the following impression of the administration of justice :
" T h e German workers enjoy the right of combination, b u t if they
make use of it, they are punished. " And L o t m a n said : " T r a d e
1
W E B E R , op.
2
For details, see p. 79.
cit.
12
FREEDOM OF ASSOCIATION
unions are free, as free as birds, and trade union law has yet to be
instituted. " 1
This was approximately the state of affairs at the outbreak of
war in 1914. In principle there existed only the freedom of the
individual to combine ; combinations themselves had no existence
in the eyes of the law. During the war a change came about, in that
it became increasingly evident that the State could not manage
without the activities of organisations and must procure their cooperation in certain respects. Shortly after the outbreak of war, the
Ministry of the Interior replied to an enquiry from the trade unions
regarding the security of organisations : " We have no intention of
harming you if you make no difficulties for us ; for we are happy
to possess large working class organisations upon which the Government can rely in any emergency. " 2 Actual recognition of the associations was, however, far distant as yet. It is true that in 1915 the State
Railways administration ceased to make the engagement of permanent
workers dependent as formerly on their being unorganised, but at
the same time a clause was inserted into the service contracts prohibiting participation in activities running "counter to State interests or
those of public services. In Bavaria and Wurtemberg the additional
words were inserted : " This includes participation in associations
the aims or endeavours of which are liable to cause the risk of a
strike. " s
The year 1916 brought an advance. The supplement to the
Associations Act assured trade unions that they would no longer,
on account of their political activities, be treated as political associations with the consequent restrictions (section 17a). Further,
in an Act of 1917, section 12 of the Associations Act, the so-called
" language section ", which only permitted the use of the German
language at public meetings, and which had greatly prejudiced recruiting in mixed language areas, was repealed. Finally, in May 1918
section 153 of the Industrial Code was also abrogated.
All this, however, was only a guarantee of a negative character :
but associations did receive positive recognition in that the State
secured their co-operation. The Auxiliary Service Act of 5 December
1916, which could never have been passed without the deliberate help
1
Quoted by REINDL : Die deutsche Gewerkschaftsbewegung, p. 38.
Altenburg, 1922.
2
Ibid., p. 241.
a
Ibid., p. 245.
GERMANY
13
of trade unions of all shades, provided for the co-opêration of these
associations for its execution. Therewith, for the first time in
Germany, the trade combinations of employers and employed were
deliberately drawn into public service by legislation, and therefore
the Act marks a most vital stage in the history of trade unionism.
Its last fetters, however, were loosened only with the Revolution,
when the Council of People's Commissioners announced in the declaration of 12 November 1918 : " The right to form associations and
the right of assembly are subject to no restriction, not even in regard
to civil servants and State workers. "
§ 2. — Survey of Existing Trade Organisations and their Development
The organisations themselves and their development, commencing with the employers' organisations, will now be examined.
Representatives of employers' interests have long existed ', but, like
the syndicates and cartels, they did not aim at influencing the social
relations between employers and employed (employers' federations
in the mere narrow sense) but only at concerning themselves with
the economic interests of the employer. But they often supplied the
incentive for the formation of special employers' federations, although
the latter had not yet acquired independence. To them belong the
Association of German Book Printers, founded in 1869, which
contained as one of the main purposes in its rules the regulation of
conditions between employers and employees. These associations
remained the only ones of their kind. In the 'eighties the movement
grew more vigorous, but fear of competition and other particularist
considerations prevented firm organisation. Not until 1904 did a
change occur, brought about by the strike of textile workers at
Krimmitschau in Saxony. The spirit of sacrifice and determination
displayed by the strikers, who were powerfully backed up by their
organisations, started a strong counter movement on the part of the
employers, which led to the amalgamation of employers' associations
and individual employers called the Head Office of the Germán
Employers' Associations. Internal discussions brought about the
formation of a second "federation, the Union of German Employers'
Associations. Both these bodies finally amalgamated in 1913 in the
Federation of German Employers' Associations.
1
The oldest employers' association is the Bourse Association of German Booksellers, founded at Leipzig in 1825 and still extant.
14
FREEDOM OF ASSOCIATION
T h e revival of the handicraft guilds supplied a further impetus
to the employers' movement in 1907, for thereby the small entrepreneur was drawn in. T h e guilds 1 are associations of craftsmen
whose training and activities are controlled by law, under the
Industrial Code. T h e y may be either voluntary or compulsory guilds,
a n d are subject to extensive State supervision. T h e voluntary guilds
are not obliged to restrict themselves to similar or kindred trades,
both specialised a n d mixed guilds are permissible. Compulsory
guilds, on the other hand, may only be established in respect of
similar and kindred trades. Their general aim is the promotion of
mutual craft interests ; this includes the fostering of friendly
relations between master and journeymen, and for the special object
of promoting these the formation of so-called j o u r n e y m e n ' s committees (Gesellenausschüsse)
is obligatory. T h u s the guilds are not
themselves employers' associations proper, but they are free to cooperate with employers' associations, as the admission of guilds to
employers' associations is permitted, and in Prussia, for instance, is
expressly regulated by order of the Prussian Ministry of Commerce.
If, however, inter-relation of employers' associations before the
war be compared with that of the workers' unions, it appears very
loose ; a change did not occur until after the war. Since t h e n , the
agreement of 15 November 1918 between the trade unions and the
employers' associations has laid the foundation whereby the trade
unions are recognised as the accredited agents of the workers, and
principles were laid down for co-operation between the associations.
H e r e is the starting point of further development in t h e movement.
W h e r e a s the policy of the employers before the war was to cripple
the activities of the trade unions, and if possible to destroy the unions,
the recognition of the latter now demanded rigid organisation and
striking power on the part of the employers themselves, in order that
they should be able at a n y time effectively to oppose the adversary,
who could no longer simply be considered as non-existent.
T h e associations of employers are to-day centrally amalgamated
in the Central Committee of Employers' Associations founded on
18 J u n e 1920 2 . Its purpose is, as its rules shows, " the close observance of the m u t u a l interests of the German employer a n d joint
1
Cf. Commentaries on the Industrial Code, Part VI, sections 81
et seq.
2
Cf. Jahrbuch der Berufsverbände, 25th supplement to the Reichsarbeitsblatt, 1922, pp. 7 et seq.
GERMANY
IS
defence against all acts directed against him ". I t counts among
its members the associations whose object is to protect the productive
interests of their members, as well as the employers' organisations
proper and associations having economic and social aims. I n many
instances, however, no sharp distinction can be drawn. T h e Central
Committee comprises nearly every branch of employers' interests,
organised in groups, namely, banking, trade, handicrafts, industry,
agriculture, transport, and insurance.
E x a m p l e s of employers' federations proper represented in t h e
Central Committee are : in industry, the Federation of G e r m a n
Employers' Associations ; in commerce, the Federation of E m ployers' Associations of the Wholesale T r a d e , etc. T h e Federation
of German Employers' Associations is undoubtedly the most import a n t of these ; whereas in 1913 — the date of its foundation — it
comprised 61 associations, a t the end of 1924 it included 45 national
associations, 80 district, 65 local, and 1,268 subsidiary ones in all
1,458 associations. I t has concluded cartel agreements with the other
federations whereby the latter recognise the Central Committee's
leadership in the wage rate and general social and political questions ;
while maintaining their independence in external activities and in
special questions, they agree to permit their own district and local
associations to belong to t h e mixed trade organisations of t h e
Federation. E v e n m a n y of the independent employers' handicraft
associations are direct members of t h e Federation \
Although t h e employers' associations are organised in large
industrial groups u n d e r one head, the structure of each federation
is by no means uniform. T h e larger federations may comprise
smaller ones alongside independent employers. T h e y may b e
organised regionally and locally, according to districts and as national
organisations, and may include different industries, or may, as trade
1
Geschäftsbericht
der Vereinigung der Deutschen
Arbeitgeberverbände, e. V. für 1Q23 und 1Ç24, pp. 1 et seq.; Berlin, 1925. Even here,
where a sharp outward distinction is drawn between economic and social
lunions, they are closely inter-related.
An agreement between the
Federation of Employers' Associations and the Federation of German
Industries aims at delimiting the spheres of labour, but simultaneously
assuring an exchange of views and mutual co-operation.
The outward sign of the close relationship is the fact that a large
number of the presidential members of the Federation of German Industries have seats and votes on the board of the Employers' Federation,
and vice versa a large part of the latter belongs to the presidency of the
National Federation.
.16
FREEDOM OF ASSOCIATION
combinations, comprise branches of similar industries without respect
to regional distribution. In addition, the employers' associations,
or even the individual employers in the same or neighbouring
localities, may join in local mixed organisations \ The local
employers' associations frequently combine in a local cartel or
" Central Committee " for the protection of their mutual interests.
Nor do the mixed district federations necessarily depend entirely
upon individual local organisations, but may also accept employers
as direct members in order to organise them afresh in district and
trade groups. Organisation by district is the method adopted to-day
almost throughout Germany ; sometimes, however, only so-called
exchange offices assure the connection in place of associations. At
all events, the latest annual report of the Federation of German
Employers' Associations states that organisation is now practically
complete.
Still less uniformity is visible in the internal organisation of
the individual associations. Admission to membership may be made
dependent on certain conditions ; for instance, the Ruhr MineOwners' Association insists that the employers in question must belong
to the Union for Coal-Mining Interests in the Dortmund Board of
Mines Area in order to be admitted, or a condition of acceptance
may be the employment of a minimum number of workers 2. In
general, the administration of the associations is vested in three
bodies, the executive committee, the members' general meeting, and
the administrative committee ; but the extent of the tasks allocated
to them may vary considerably. In big industries, for example, the
competency of the members' general meeting, apart from the drawing
up of the rules, is confined in the main to the choice of members
of the administrative committee. In associations of smaller
employers, however, extensive rights are usually conceded to the
general meeting. The executive committee is naturally the executive
organ everywhere, but its competency may also be more or less
extended.
This survey shows, that in spite of central organisation and the
strict concentration of all powers, sufficient play is left for active
individual development, enabling adaptation to existing conditions.
All those who have studied the question of employers' associations
agree that in every case the workers' unions are the primary and the
1
W E B E R , op. cit.,
2
Ibid., pp. 191 et seq.
p.
186.
GERMANY
I/
employers' associations the secondary phenomenon (Kessler), and
that employers' associations have in common only the negative
defensive objects and not the positive objects of the trade unions
(Zimmermann) 1 .
The development of the workers' organisations bore, therefore,
of necessity a very different character from that of the employers.
It has been briefly shown above how strongly the workers' trade
unions were influenced from the beginning by political parties, and
therefore how decisive a part political legislation (the Anti-Socialist
Act) played in their development. While the State could possibly
put obstacles in the way of the growth of associations, it could not
check it, and oppression could not stem the increase in membership.
When the Anti-Socialist Act was rescinded in 1890, the free trade
unions, according to police statistics at the end of that year, comprised
'320,213 members (including locally organised ones) ; the HirschDuncker trade unions, on the other hand, had only 63,000 members,
although they had not been affected by the Anti-Socialist Act 2. The
causes of the development of the trade unions lay entirely in social
and industrial spheres, and therefore as development proceeded the
organisations were obliged to dissociate themselves from the political
parties with which their origins bound them. But the particular
feature of the German trade union movement continued to be, nevertheless, its disunion resulting from divergent principles.
There is the Socialist trade union group which defends the
principle of the class war and has international leanings, the free
trade unions (freie Gewerkschaften) ; and there are the national
trade unions (deutsche Gewerkvereine), prompted by liberal ideas,
which refute Socialism and see in national interests the bond uniting
employer and employed notwithstanding any opposition between
them. The latter are also called the Hirsch-Duncker unions, after
their founders. Their influence, however, had so decreased before
the war that when Hirsch died in 1905 they comprised only 2,158
local groups and 117,097 members, as compared with 1,344,803 members distributed over 9,525 branch unions of the free trade unions 3 .
To these groups, and in opposition to them all, were added during
the last decade of the nineteenth century the Christian trade unions.
In common with the Hirsch-Duncker unions, they are opponents of
1
Ibid., p . 169.
Ibid., p . 80.
" Ibid., p . 8 1 .
2
Freedom of Association
2
i8
FREEDOM OF ASSOCIATION
Socialism a n d insist upon their strictly national outlook. I n contradistinction to those unions, however, they do not profess religious
impartiality, but uphold Christian ideals. I n 1913 the free trade unions
had 2,548,763 members and funds exceeding 88 million marks ; the
corresponding figures for the Christian trade unions were 342,785
members a n d 9,682,796 marks, and for t h e Hirsch-Duncker unions
109,225 members and 1,728,528 m a r k s \
T h e s e three great central
groups represented, before the war, practically the whole trade union
world. T h e war greatly affected them : out of 2,521,303 members on 30 J u n e 1914, the free trade unions had left, on 31 December
1916, only 944,713 2 ; the Christian unions were reduced to 174,000,
a n d the Hirsch-Duncker unions to 58,000 m e m b e r s 3 . By 1917,
however, a considerable improvement was already visible and after
the war membership figures assumed h u g e dimensions.
These three groups of workers' organisations are still, as regards
e x t e n t a n d influence, the most important representatives of the
German working class, but they are not the sole ones. Opposing
principles, also, are the chief cause of the separation of the other
unions. I t sometimes happens that the insistence laid on their principles so affects the activities of the organisations that they are held
to overstep the sphere of a trade union. T h i s is the case as regards t h e
G e r m a n Industrial Union (Deutscher Industrieverband),
which has
evolved out of the Communist Union of H a n d and Brain Workers in
G e r m a n y (Kommunistische
Union der Hand- und
Kopfarbeiter
Deutschlands),
as well as the other organisations of Communist or
Syndicalist tendency which have been federated in a national cartel
(Reichskartell)4'.
T h e National Federation of G e r m a n T r a d e Combinations (Nationalverband
deutscher Berufsverbände)6
represented, u p to its
dissolution at the end of 1926, the non-militant workers' movement,
that is, the movement definitely in favour of industrial peace. T h e
1
Ibid., p. 84.
2
ZWING, op. cit., p. 130.
W E B E R , op. cit., p. 84.
3
4
SCHIRMEL : " Die neue Entwicklung der Organisationen der
Arbeitnehmer im Deutschen Reich ", Reichsarbeitsblatt,
1924, non-ofHcial section, pp. 20 et seq. ; IDEM : " Neuere Entwicklung von Arbeiter
und Angestelltenverbände ", Reichsarbeitsblatt,
1925, non-official section, pp. 795 et seq.; IDEM : " Die Verbände der Arbeiter und Angestellten Ende 1925 ", Reichsarbeitsblatt,
1927, non-official section, pp. 13
et seq.
5
Membership, 1920 : 283,198.
GERMANY
IC
unions which had been affiliated are now independent : the Amalgamation of National T r a d e Unions (Reichsverbindung
nationaler
Gewerkschaften),
the National Union of Agricultural W o r k e r s
(Reichslandarbeiterbund)
; while a third group of unions have united
in the National Committee of W o r k s Unions (Reichsausschuss
iverksgemeinschaftlicher
Verbände).
I n addition there are several
independent associations ; the difference in nationality separates
the Polish trade union (Polnische Berufsvereinigung)
from the rest *.
I t is a noteworthy point in connection with the German trade
unions that they were centralised from the start, a n d evolved to socalled " head " federations. Since 1921 the free trade unions have
been amalgamated in the General Federation of German Trade Unions
(A.D.G.B.) ; the earlier " General Commission "• implied a somewhat looser organisation. T h e Christian trade unions have been
united since 1901 in t h e Federation of Christian T r a d e Unions, and
t h e Hirsch-Duncker unions were amalgamated from t h e beginning
in the Federation of National T r a d e Unions.
W h e r e a s before the war the trade union movement comprised,
in the main, workers in industry and kindred trades, and to a certain
e x t e n t salaried employees 2 , it spread to some degree during
t h e war, but not completely until legislative freedom was granted
when war was ended, to all workers, notably also to agricultural
workers ; on the other hand, the salaried employees' organisations developed into unions which r a n k equally w i t h those of the
m a n u a l workers. Finally, civil servants also combined in suitable
federations and unions. T h e salaried employees' and civil servants'
movement diverges, similarly to t h a t of the manual workers,
in accordance with various ideals. H e r e also the Socialist, Christian
a n d Liberal tendencies can be distinguished. T h e federations are
independent bodies outside the great trade union federations, b u t
are associated with them as follows : the Federation of Unions of
Salaried Employees (Arbeitsgemeinschaft
freier
Angestelltenverbände) with 428,185 members at the end of 1925, and the German
1
In 1922, the miners' section had 45,500 members, and the metal
and factory workers' section 9,604 members ; during the last years
membership has greatly declined, the respective numbers in 1927 being
8,000 a n d 3,117.
2
The German Nationalist Union of Shop Assistants
(Deutschnationaler Handlungsgehilfenverband)
may be mentioned, as of importance,
as well as the Federation of Salaried Employees' Trade Unions.
20
FREEDOM OF ASSOCIATION
Federation of Civil Servants (Deutscher Beamtenbund)1 are allied
with the free trade unions.
The Central Body of the Three Federations of Christian Workers
{Deutscher Gewerkschaftsbund)
comprises the German Federation
of Christian Trade Unions (Gesamtverband der Christlichen Gewerkschaften Deutschlands),
the Federation of Salaried Employees
(Gesamtverband
deutscher
Angestelltengewerkschaften)
with
411,113 members at the end of 1925, and the Federation of Unions
of Civil Servants (Gesanitverband deutscher Staatsangestellten und
Beamtengewerkschaften).
In the Trade Union League of Workers', Salaried Employees'
and Civil Service Associations (Gewerkschaftsring deutscher Arbeiter-,
Angestellten-, und Beamtenverbände) are combined with the Federation of Hirsch-Duncker Associations (Verband der deutschen Gewerkvereine), the Salaried Employees' Union
(Gewerkschaftsbund
der Angestellten) comprising, at the end of 1925, 273,016 members,
the General Union of German Civil Servants (Allgemeiner deutscher
Beamtenbund), and some other kindred unions.
The Communist Union of Hand and Brain Workers, on the other
hand, on principle does not distinguish between the different classes
of employed.
An independent union of salaried employees is the Union of
Supervising Employees (Vereinigung der leitenden
Angestellten),
with 23,344 members at the end of 1925.
The associations of the liberal professions occupy a special
position. Their primary aim is to promote the economic interests of
their members and, in so far as they control the relations between
employer and employed, they may also be considered trade unions.
This was denied in respect of the lawyer's unions, but may surely be
affirmed in regard to the panel doctors' federations.
While the year 1922 represents the peak of trade union development, 1923 witnessed a retrograde movement easily explicable on
both political and economic grounds (the occupation of the Ruhr and
the depreciation of the currency); and the economic crisis which
ensued in 1924 was accompanied by a further fall in membership
numbers. Recent developments are illustrated by the following
figures :
1
The German Federation of Civil Servants and the Federation of
Unions of Civil Servants (Gesamtverband Deutscher Beamtengewerkschaften) amalgamated in Oct. 1926.
21
GERMANY
T h e A..D.G.B. comprised 41 organisations at the end of 1924,
as against 44 in 1923 and 49 in 1922 (allowance muse be made for
fusions and for transference of workers to salaried employees' associations). Since then, during the last two years, a number of branch
unions, especially small ones, have fällen victims to inflation. T h e
membership numbers were as follows at the end of the years under
review 1 :
192a
7,821,558
1923
'9=4
5,8o8,6l2
4,023,867
19=5
4,l82,5H
T h e membership of the Christian trade unions was as follows
at the e n d of the years noted below 2 :
1922
1923
1924
1925
1,033,506
806,992
612,952
' 582,319
T h e y comprised 18 organisations, which in 1923 h a d a total of
6,842 local groups (6,817 in 1924), in which the miners accounted
for 1,336 (1,197 in Ï924) and agricultural workers for 2,585 groups
(2,280 in 1924). T h e n u m b e r of organisations in 1925 was 19.
T h e national trade unions had 227,612 members in 1922, 1,47,280
at the end of 1924 3 , and 157,571 at the end of 1925 2 .
W h i l e t h e inner structure of the employers' associations m a y
display considerable variation, t h e organisation of all the different
trade unions is fairly uniform. T h e latter have as a rule three central
bodies : the executive committee as executive organ, the general
meeting which determines the rules and selects the executive committee, and an administrative committee elected by the general
meeting as a controlling organ. T h e association as a whole is further
divided according to districts. " District organisations are formed in
order to render effective support to t h e executive committee, to carry
out the resolutions of the general meeting and the aims of the union,
a n d to control agitations. " 4 District affairs are supervised by a
district head and a commission appointed to assist him. T h e duties
of this head are 5 to direct agitations and organisation and to intervene
in wage movements and labour disputes in accordance with the
1
2
3
4
Reichsarbeitsblatt,
1927, non-official section, pp. 13 et seq.
Zentralblatt der Christlichen
Gewerkschaften.
Cited by SCHIRMEL, op.
cit.
Rules of Union of German Miners, section 43, subsection 1, paragraph 1.
5
Ibid.
22
FREEDOM OF ASSOCIATION
terms of the rules a n d the directions of the executive committee ; his
internal duties comprise arbitration of differences between members,
a n d so forth. T h e district meeting is the third organ here in the same
w a y that the general assembly is in the union as a whole. T h e
delegates to the general meeting are elected in the districts.
T h e basis o n which t h e organisation is erected is the local union
or pay office, which must be established if a locality supplies a certain
m i n i m u m of members. T h e latter choose an executive committee,
which must assume the local duties of the union. T h e payment of
benefits takes place here and notices of entry or exit and so on are
given. I t frequently depends on the size of the local union how
m u c h liberty it is permitted, e.g. in decisions on work stoppages '.
I t is the local union which sends delegates to the district meeting 3 .
T h e various associations of a union in one place are connected
by means of so-called trade union cartels or local committees. I t is
their task " to represent on the spot the mutual trade union interests
of the members, especially to arrange the voting for the arbitration
committees, the insurance departments, the industrial a n d mercantile
tribunals, the sickness funds and chambers of handicrafts a n d other
labour agencies " 3 .
Section 55 of the rules of the A . D . G . B . makes them the agents
of the workers' a n d trade union secretariats ; they m a y establish
trade union halls at the joint expense of the local unions. Section
28 of the rules on the other h a n d , prohibits t h e m from interfering
independently in the duties of the individual unions, especially with
regard to wage movements. " T h e passing of resolutions concerning
strikes is not within the competency of the local committees. "
These forms are uniformly maintained ; it is a question, however,
whether the individual associations should be organised according to
occupation or to industrial branches. F o r instance, the metal
workers' and the timber workers' unions in the free trade unions
were always " industrial unions ", within which consideration was
given to occupational interests by the formation of special sections.
1
Thus in the rules of the Metal Workers' Union subsection 4.
In the Hirsch-Duncker trade unions the members of one trade in
the various places are amalgamated in local unions, jvhich form the
trade union. Grouping according to districts is therefore absent. (Cited
2
by W E B E E , op. cit.,
3
p.
107.)
Rules of the General Federation of German Trade Unions, section 52.
GERMANY
23
After the war, however, the great concentration movement on the
part of the employers gave the question a general significance. T h e
1922 Congress of F r e e T r a d e Union at Leipzig passed a resolution
requiring the executive committee and the administrative committee
of the A . D . G . B . to draft within the shortest possible time a plan for
t h e systematic organisation of industrial unions, their limitation, etc.
T h e following points from t h e preamble to this resolution are still of
general interest to-day :
General economic progress is rapidly reaching a climax in the formation of large industrial undertakings, and thus in the concentration
of capitalist forces. By reason of the great industrial development,
division of undertakings on a purely occupational basis is now far less frequent. Instead, industrial concerns have arisen in the processes of
production of which a number of individual trade groups are uniformly
comprised. The systematic concentration of capitalist forces goes even
further. I t begins with the production and extraction of the raw material.
The production and extraction of the raw material, its further treatment
and the utilisation of the resultant by-products, the transport and sale
of the finished goods are frequently carried out in the closest relationship. . . .
In the struggle of the trade unions for better conditions of pay and
labour, the rigidly organised employer must be confronted by labour
concentrated within large and powerful industrial organisations. The trade
union struggle is prejudiced, and orderly co-operation accomplished
only with the utmost difficulty, if several craft organisations attempt
activity within one industrial group. The same applies if in wage negotiations an employer or a group of employers in similar spheres is confronted by a number of different craft organisations. . . .
Neither the tasks of the works councils nor the economic problems
and intense efforts towards socialisation can be satisfactorily furthered on
the basis of the individual occupation. This can only be successfully
achieved by means of industrial organisations. . . .
T h e r e is no unity of opinion on the best method of fulfilling this
programme ; nevertheless, the n e x t T r a d e s Union Congress (Breslau,
1925) resolved to include t h e following principles in the rules of the
A.D.G.B. :
. . . It is obligatory on every union to accept as members all
unskilled and auxiliary male and female workers employed in the industrial branches of its sphere of organisation.
As a rule the sphere of organisation of a union corresponds with an
industrial area. . . .
As the industrial areas frequently merge into one another and are,
moreover, subject to changes brought about by advances in technical
processes and alterations in methods of production, the organisation
districts cannot be arbitrarily delimited. The boundaries must, therefore,
often be defined by arrangement between the particular central associations concerned.
In order to strengthen the power of the trade unions as far as possible
and to create uniformity throughout the organisation, endeavour must
be made to combine the individual occupations in industrial associations.
The direction amalgamation should follow is dictated by the kindred
nature of the various branches or groups in the same industry. In
FREEDOM OF ASSOCIATION
24
doubtful cases the assent of the Federal Executive Committee must be
obtained.
If in any one industrial area several unions exist in respect of the
various occupations, the mutual obligation devolves upon them of assuring their useful co-existence and co-operation, and of avoiding all action
which might render future amalgamation into an industrial federation
difficult ». . . .
In free trade union circles opinion is unanimous that a general
compulsory transformation of the trade unions into industrial organisations is inadvisable ; no less unanimous is the opinion in favour of
promoting the concentration of trade union forces by all possible
means 3 .
The agreement concluded on 15 November 1918 between the
employers' and workers' federations, by virtue of which the employers
explicitly recognised the trade unions, marks the end of one phase
of development and simultaneously the beginning of a new one.
Provision No. 10 of the agreement provides for the establishment of
a joint central committee representing the various trades appointed
for the purpose of carrying out the agreement and maintaining
satisfactory industrial relations.
On the basis of this agreement, the Central Joint Labour Council
of Employers and Workers in Industry and Trade was founded on
4 December 1918, and was followed by the formation of a number
of other joint labour councils for individual trade branches, in which
for the first time the organisations on either side combined for the
joint solution of the industrial and social questions concerning a
particular trade 3.
The great expectations bound up with the Central Joint Labour
Council in particular have not been fulfilled. Following the exit of
various unions from their joint councils, the Federal Committee of
the A.D.G.B. passed a resolution in the month of January 1924
requesting the Federal Executive Committee to dissolve its connection with the Central Joint Labour Council, and on 31 March 1924
the joint office was dissolved 4 . The Trade Union League and
the Central Body" of the Free Federations of Christian Workers
(Deutscher Gewerkscha-ftsbund), however, stayed in the Council.
1
Protokoll der Verhandlungen des 12. Kongresses der Gewerkschaften Deutschlands, p. 60.
2
Cf. Jahrbuch des A.D.G.B., 1Ç24, pp. 187 et seq.
3
As precursors may be- regarded the already existing joint wage
councils, the task of which is jointly to solve individual wage problems.
That of the German compositors has acquired an importance far beyond
its sphere of influence.
4
Jahrbuch des A.D.G.B., 1923, pp. 173 et seq.
GERMANY
25
On the other side, t h e three great workers' groups have come
to m u t u a l arrangements on many points. Of special note is t h e
agreement b y which they arrive a t a. common understanding o n t h e
recognition of a n organisation a s a " trade unión " l :
A workers' trade union shall consist of the workers in specific or
kindred trades. Employers or their representatives may not belong to a
workers' trade union ; ' exceptions are only permissible in the case of
former members of the trade union, who in t h e meantime have become
employers or representatives of employers and do not wish to resign
their membership in the workers' trade union. These extraordinary
members may have neither a seat nor a vote. . . .
Employers who were accepted for membership as such must be removed. A trade union must recognise the basis of community between
the interests of the workers as opposed to the employers and the consequent solidarity of all workers. . . .
The aim of a workers' trade union is the amelioration of conditions
of pay and labour and the improvement of the economic and social position
of the worker in the trade concerned. . .
The principal means of attaining this end are :
" Negotiation with the employers or their organisations on the
adjustment of wage and labour contracts and t h e conclusion of
collective wage and labour agreements. If necessary, work must
be stopped. "
The funds wherewith to promote the aims of the workers' trade
unions must be procured by contributions from the members.
A workers' trade union may accept no material assistance of any
kind whatsoever from employers' organisations.
T h e s e principles certainly represent only t h e opinion of t h e
circles concerned, yet t h e influence which this expression of opinion
has exerted over actual legislation must n o t b e ignored 2 . T h e
agreement of 6 J u n e 1920, in which compulsion of a n y k i n d exercised
b y a trade union against members of another union is condemned,
has acquired considerable importance in t h e relations of trade unions
with one another. " Freedom of combination gives t h e workers t h e
right t o attach themselves to an organisation which meets their
convictions. T h i s universal r i g h t must n o t b e converted into a
wrong, into a compulsion on t h e individual to force him into a certain
organisation. " T h i s dictum is a judgment on every attempt t o
influence b y force membership in a n organisation, a n d all officials,
employees, shop stewards, a n d members of t h e organisations a r e
instructed to oppose, both within a n d without t h e works, all a t t e m p t s
to compel organised workers to leave a n organisation or t o change
from o n e organisation to another.
1
2
Quoted from R E I N D L , op. cit., p p . 275 et seq.
The " industrial associations of workers " in the more recent German legislation correspond with this conception of a trade union ;
cf. below, p . 61.
26
FREEDOM OF ASSOCIATION
Legislative progress led to general freedom of combination ;
the result of social progress is a far-reaching organised system of
association. It will now be shown what results this combination of
freedom and organisation gives to the right of combination to-day.
The leeral position of trade unions under the present law as laid
down and as actually administered will be described.
CHAPTER II
THE LEGAL CONDITIONS OF TRADE UNIONISM
§ 1. — The Legislative Basis of Freedom of Combination
The fundamental conditions governing the right of association
in Germany to-day are embodied in the German Constitution of
i i August 1019. In Article 159, " freedom of association is guaranteed
to everyone and to all occupations for the preservation and improvement of labour and economic conditions "; and " all agreements and
measures tending to restrict or prevent such freedom " are declared
illegal.
In Article 130 the freedom of association of civil servants if
guaranteed, with special reference to freedom of political opinion.
The importance of these regulations is evident if they be compared
with the former legal position based on section 152 of the Industrial
Code. Section 152 of that Code is not a part of the former Federal
Constitution but of a simple federal law — a law which could at any
time be altered, restricted, or rescinded by ordinary federal
legislation. In addition, the individual States enjoyed, by virtue of
the Federal Constitution (as is still the case to-day), legislative
privileges based on their peculiar rights as States. It is true that the
legal principle held, and still holds, good, that federal law takes
precedence of State law ; and therefore federal laws cannot be
altered by State laws, whereas a State law which conflicts with a
federal law is abrogated by the latter. The federal States were
consequently unable to infringe the Industrial Code and therewith
section 152 by their own legislation ; but it should be noted that
this Code referred only to industrial, not to other occupations.
Section 152 mentions only industrial employees, industrial assistants,
journeymen, and factory workers ; the occupations which are not
to be regarded as industrial are designated in section 6 of the Code
and those to be reckoned as industrial have been exactly defined by
28
FREEDOM OF ASSOCIATION
legal theory and by the courts. Not included under the terms of
the Industrial Code are : the majority of non-manual employees, the
liberal professions, agricultural workers and domestic servants,
persons employed in the railway service or shipping, civil servants,
soldiers, etc. None of these persons, then, came within the scope
of the federal law on the right of combination. This does not mean
that they would not have had this right ; the position was rather,
that they were entitled to freedom of association as a part of general
individual liberty, but that any State enactments still in force against
combination were not rescinded by the Industrial Code, and State
legislation could at any time validly introduce new laws against
combination. Whereas persons employed in sea-going shipping,
for lack of any opposing law, enjoyed freedom of association, State
legislation sharply restricted that of agricultural and forestry
workers and servants.
Section 3 of the Prussian Act of 1854, for instance, threatened
with imprisonment those " servants " who attempted to induce
" employers or the public authorities to perform certain actions or
make concessions by agreements to stop or hinder work at the shop
of one or more employers " \ The legality of such regulations was
never questioned in the practice of the courts and was expressly
confirmed by section 24 of the Federal Associations Act, as follows :
" The regulations of State law in respect of agreements made by
agricultural workers and servants to stop and hinder work remain
unprejudiced " (by the terms of the Federal Associations Act).
Only industrial employers and employees, then, were legally
assured of freedom of combination within the Empire under section
152 of the Industrial Code. This condition could be abrogated by
federal law. All other occupations enjoyed at most a de facto freedom
of combination where not restricted or removed by State legislation.
This state of affairs was altered by the Revolution in November 1018.
The proclamation of 12 November 1918 of the People's Commissioners
invested with the force of law the declaration that the right of forming
associations and the right of assembly should be subject to no
restriction, not even for officials and State workers. In accordance
with the intention of the legislature, universal right is here granted
to form associations for any purpose, including therefore associations
1
NESTRXEPKE, op. cit., pp. 15 et seq.
As an example of a law '
promulgated after the issue of the Industrial Code, mention may be made
of the Anhalt Act of 16 April 1899, which contained similar restrictions.
GERMANY
29
for trade purposes l . These regulations were subsequently sanctioned
by the Provisional Act of 4 March 1919, and therefore, since
12 November 1918, all restrictions on combination are removed by
federal law, yet without section 152 of the Industrial Code having
been expressly rescinded.
Thus was created the foundation upon which the Federal
Constitution of 11 August 1919 proceeded to build. By Article 159
it grants freedom of association to all persons and to all occupations.
There is no longer room for State legislation, for only by a change
in the Federal Constitution, to effect which a specially qualified
parliamentary majority is essential, can the constitutional regulations
be altered or rescinded ; and so freedom of association is most firmly
secured by law. The theoretical controversy as to whether Article
159 is law or merely the expression of a general principle is not
very important, as in practice, and especially by the courts, no hesitation has been shown in regarding this Article as enforceable.
Mention has already been made of the fact that section 152 of
the Industrial Code was not expressly rescinded by the new legislation. According to paragraph 2 of Article 178 of the Constitution,
however, the laws of the Empire remain in force only if the
Constitution is not in contradiction with them. It is, therefore, of
fundamental importance to know what is the position of this provision
of the Code with regard to the Constitution, for on this depends
whether it is still valid to-day alongside Article 159 without a special
clause having been inserted to that effect. This fundamental question
determines the legal position of trade unionism within the German
Republic. Section 152 (subsection 2) of the Industrial Code laid
down that, as regards agreements and associations formed for
combative purposes (trade combinations in the original sense), the
participants were free to withdraw at any time without being subject
to action or remonstrance. A decision of the Federal Supreme Court 2
on Article 159 of the Constitution states that the fact that the individual enjoys a free right of determination alone does not make up for
the right of association expressed in Article 159 of the Federal Constitution. The right of other persons to associate is similarly protected.
Accordingly, their organisations are expressly recognised in Article
165 (paragraph 2) of the Constitution. The nature and purpose of
1
2
GROH : Ko.alitionsrecht, section 3. Mannheim, 1922.
Judgment of 2 July 1925, R.G.Z., i n , p. 199.
30
FREEDOM OF ASSOCIATION
this freedom of association enjoyed by the participants combined
in a union must, therefore, comprise the further right to make use of
it and render it effective in law. That also falls within the scope of
the right of freedom granted to the association as such. Its freedom
of association would indeed be incomplete and illusory unless
protection were likewise afforded to the right of all the participants
to make the necessary arrangements for carrying out the aims of
association with complete legal effectiveness.
The Federal Supreme Court, therefore, declared subsection 2
of section 152 of the Industrial Code repealed by the Federal
Constitution and thus terminated in practice a controversy in the
sense in which a majority had already decided it in theory. Further,
since according to the prevailing opinion subsection 1 of section 152
of the Code is also repealed by Article 159 of the Federal Constitution,
this section of the Industrial Code, which for half a century has
determined the fate of the right of combination, must now be regarded
as of historical interest only. At the same time, the differentiation
between combative associations (trade combinations) and other
associations, which originated in section 152 of the Code, is abrogated.
It is, as the Federal Supreme Court indicates above, only a
development of the same idea when Article 165, which provides for
the formation of works and economic councils, states : " Workers.
and employees are called upon, with equal rights in common with
the employers, to co-operate in the regulation of wage and labour
conditions as well as in the whole economic development of
production. The organisations on both sides, and their agreements,
are recognised.
This means that the November agreement of .the employers'
federations with the trade unions was incorporated in the Constitution,
not in an immediately binding legal form, but as a general declaration
of principle, and has been set up as a guiding principle for the further
legislative development of organisations.
The rights of forming associations and of assembly are closely
allied to the right of combination, and their regulation is also of vital
importance to that of the latter. In the proclamation of 12 November
1918 of the People's Commissioners, referring to the rights of forming
associations and of assembly, the right of combination was implied.
For the Federal Constitution, on the other hand, a distinction is made
between these rights ; Articles 123 and 124 deal, under the title
GERMANY
o
31
" T h e Life of the Community " (Gemeinschaftsleben),
with the
rights of forming associations and of assembly ; Article 159 deals,
under t h e title " Economic lyife " (Wirtschaftsleben),
with freedom
of association. T h e r e is a historic reason for this distinction, for in
the course of nearly a century it has become customary to regard
freedom of combination as the freedom (in the first place of t h e
workers) to combine for the purpose of securing or battling for better
conditions of life. T h e r e is also a deeper reason for this terminology,
for the forms in which freedom of combination is expressed need not
be associations and assemblies in the sense of Articles 123 a n d 124. A
strike may arise spontaneously and be conducted b y a crowd which
is organised for this purpose alone a n d disperses again afterwards. I n
addition, Article 159 a n d Articles 123 a n d 124 differ, not only in
their scope, but also, as will be shown later, in the direction in which
State protection is granted. F i n a l l y , Articles 123 a n d 124 guarantee
only an individual right of freedom, b u t by virtue of Article 159
l i g h t s a r e granted to t h e association itself.
T h e s e differences do not remove the close inter-relation between
these legal provisions. A combination is a n association in the sense
of t h e Associations Act in so far as it is a voluntary combining of
several persons for a certain length of time in order to pursue a
common aim by means of subordination to an organised will \ T h e
association also holds meetings in t h e sense of the Associations Act
if its members come together for discussion a n d deliberation 2 . T h e
history of legislation in Germany has shown to what extent freedom
of combination can be affected by t h e legislation on associations a n d
assembly. As legal sources may be cited Articles 123 and 124, and,
in so far as it is not rendered invalid by the Constitution, the
Associations Act of 1908. T h e y supply t h e legislative basis for t h e
present trade union law, but naturally are not the only sources which
contain regulations on trade combinations. T h e others will be set out
in their appropriate place in this survey.
I n its present form, freedom of combination signifies, as shown
above, t w o things : the right of t h e individual to combine and t h e
right of the association to activity in t h e pursuit of its aims 3 . T h e
interests of t h e individual and of t h e association do not always run
1
DELIUS : Vereinsgesetz, section 3, note 1.
Ibid., section i, note 5.
3
See also STEINMANN : " Das Koalitionsrecht im Deutschen Reich,
1926. " Staatsbürger-Bibliothek,
Nos. 148-149.
2
32
FREEDOM OF ASSOCIATION
parallel, they can cross each other and be at variance. It is the nature
of every organisation to require to expand and to be as all-embracing
as possible, and to endeavour to achieve these ends by the means
in its power. The consequent conflict which arises between the
freedom of the individual and the interests of the organisation leads
to the problem of compulsion to combine or organise, i.e. to the
question as to how far the association is justified in compelling an
individual. This question has been tested in practice on various
occasions, e.g. can the individual be forced to join an organisation or
be kept in it against his will, to what extent can associations bind
themselves only to employ members of associations or only to permit
their members to work for members of associations, and so on?
These cases must be dealt with individually later in this survey, but
it is advisable to examine the question now, for the interpretation
of Article 159 is fundamental in connection with the decisions on all
these cases.
The question has been put as follows : is the freedom to refrain
from joining an association included in the freedom of association
in the sense of the Federal Constitution? Opinion is divided. It
was the intention of the authors of the Constitution that, in accordance
with the historical development of the right of combination in
Germany, protection should only be afforded to the freedom to join
an association. No thought was given to freedom not to combine and
therefore no direct expression was given to it \ On the other hand,
those who support the view that Article 159 also protects the freedom
of the individual not to combine point out that it is not a question
of historical development. Rather does it correspond with changed
conditions that now, since the removal of the restrictions of State
authority, the right to acquire protection against combination should
seem worth safeguarding. The wording of the law did not exclude
this interpretation 2.
Those who hold the contrary opinion, on the other hand, insist
that Article 159 aims not only at granting freedom to the individual.
but above all gives a right to the association, and that individual
freedom must give way to the latter 3.
1
Cf., for example, SINZHEIMER : Juristische Wochenschrift, 1921,
p. 304.
2
Cf. GROH, op. cit., pp. 33 et seq., for further bibliographical
references.
3 POTTHOFF, in various articles ; e.g. Arbeitsrecht, XII, No. 10,
col. 781.
GERMANY
33
I n practice, a large n u m b e r of German courts h a v e recognised
that Article 159 of the Federal Constitution also conferred on individuals the r i g h t to refrain from joining an association \ T h e Federal
Supreme Court has not decided the question in principle. I n the
judgment of 6 April 1922 2 , it expressly refrained from á decision
on t h e interpretation which the H i g h Court of Justice
(Kammergericht) sitting as court of appeal has placed on Article 159 of the
Constitution.
By freedom of association t h e latter had likewise
implied t h e right of t h e individual freely to choose whether he wished
to enter an association a t all. So long as no compulsory organisation
was established by law, all men might freely choose whether they
desired to attach themselves to an association and whether they would
remain in it or not. T h e Federal Supreme Court also considers this
freedom of entry and withdrawal inviolable, b u t bases it on the general
principle of free determination recognised b y law, which held good
for entry into associations and organisations.
T h e judgment of
2 July 1925 cited above, in t h e reasons given for which t h e Federal
Supreme Court recognises that Article 159 also grants rights to the
association itself, leaves it " a n open question whether a r i g h t to
refrain from association is to be read into the regulation ".
I t is at all events established now that t h e freedom of t h e
individual in relation to association is recognised in principle b y t h e
law ; the point is still undecided, however, whether paragraph 2 in
Article 159 of the Federal Constitution includes a specific guarantee
of such freedom.
I t is certain, on t h e other hand, that Article 159 makes clear the
persons to whom freedom of association is granted. Mention has
already been made of the fact that according to the old law only t h e
freedom of combination of industrial employers a n d workers w a s
regulated under Imperial law, b u t that to-day the Federal Constitution
grants this freedom to all persons and all occupations, and in Article
130 to civil servants in particular, so that freedom of association is
1
For example, the judgment of the Oberlandesgericht, Jena, of
6 Nov. 1922 (Reichsarbeitsblatt,
official section, 1924, p . 18), and the
judgment of the Oberlandesgericht, Stuttgart, of 28 April 1925 (Kartenauskunftei,
Par 181, " Berufsverein"). Reverse j u d g m e n t s : Landgericht I I , Berlin, of 29 Nov. 1923 (Neue Zeitschrift für
Arbeitsrecht,
1924, col. 374), and Landgericht, Potsdam, of 20 March 1924 ibid., 1924,
cols. 567 et seq.).
2
R.G.Z., Vol. 104, pp. 327 et seq.
Freedom of Association
•:
34
FREEDOM OF ASSOCIATION
now enjoyed equally by agricultural workers, domestic and railway
servants, a n d even by the Defence Force '.
N o distinction is drawn in respect of n a t i o n a l i t y 2 , sex or age,
apart from a n y general restrictions which may arise therefrom, b u t
which for this very reason are not restrictions on freedom of
association as such, for instance, incapacity to act, limitations on
minors and wards. E n t r y into a n organisation cannot be prohibited
to apprentices, unless in the exceptional cases that it prejudices their
education and training 3 .
F r e e d o m of association h a s been specifically secured b y
legislation. Section 152 of the Industrial Code h a d merely repealed
the restrictions and penalties devolving on agreements and associations
a n d had thus removed the prohibition on freedom of combination.
T h i s only signified protection against the State, whereas freedom
of combination could be, a n d actually was, restricted by private
agreements. Now paragraph 2 of Article 15g lays down t h a t all
agreements and measures to restrict or interfere with freedom of
combination are illegal. T h e intention here is to g r a n t , on the one
hand, protection against the State, which must refrain from all interference and restrictive measures in opposition to the law, and on the
other, to afford a similar protection against other persons, " the
industrial forces " 4 . Every agreement between employer a n d
employed respecting the exercise of freedom of association, a n d
1
But with reservations arising out of the nature of the employment.
Cf. Article 133 of the Federal Constitution and sections 36 and 37 of the
Reich Defence Act of 23 March 1921.
2
This might appear doubtful in view of the title to the second part
of the Constitution, " Fundamental Rights and Duties of German
Citizens ", under which Article 159 falls. That no decisive significance
appertains to the wording of this title, that the fundamental rights
contained in paragraph 2 are not an outcome of nationality but of personality, and that foreigners are treated on a different basis from German
citizens only where expressly determined in the law or according to the
nature of circumstances remains undisputed. Cf. ANSCHÜTZ : Reichsverfassung, note 5 to Article 109. Any restriction on freedom of association
could in so far, therefore, only be resultant on Articles 123 and 124.
3
Cf. judgment of the Landgericht, Flensburg, of 11 Feb. 1924
(Schlichtungswesen,
1924, p . 100 ; judgment of the Oberlandesgericht,
Hamm, of 26 July 1922 (Juristische Wochenschrift, 1922, p. 240); KASKEE :
Arbeitsrecht, Berlin, 1925, p . 233, footnote 2 and judgment ; LIEBENBERG : " Koalitionsrecht und Jugendliche ", in KASKEE : Koalitionen und
Koalitionskampfmittel,
p. 76.
4
SiNZHEiMER in .Verhandlungen der Nationalversammlung.
Cf. also
ANSCHÜTZ, op. cit.,. note 3 to Article 159.
GERMANY
35
especially a n engagement to refrain from association, is accordingly
null and void. Outside the sphere of contracts, too, every measure,
act or omission which may interfere with the freedom of association
of a n y person is illegal. E x a m p l e s of this, for instance, are the case
of dismissal or refusal of employment because of membership in an
association, the practice of black lists, and such like. T h i s protection
is additionally strengthened by the provision of the law on works'
councils, which grants a right of appeal against dismissal on account
of union membership (section 84, ( 1 ) , W o r k s Councils A c t 1 ) .
T h e most important part of the law of freedom of association is
that dealing with the associations themselves. I t s examination
involves an exposition of the provisions w h i c h confer rights on
associations. T h i s will be dealt with in the ensuing chapter.
§ 2 . — Legal Status of Trade Associations
T h e present-day types of association which we have dealt with
must be divided legally into two groups : a smaller one, the guilds,
the existence of which depends on the principles of public law, and
the larger group, which comprises all t h e remaining organisations
and which, by reason of their origin, rests on private law. T h e latter
are, as is natural in the circumstances, voluntary associations ; the
former g r o u p includes both voluntary and compulsory guilds 2 . T h e
guilds are all obligatorily juridical persons in public law ; the
associations in private law, on the other hand, m a y please themselves
whether they acquire legal personality, or not. Of these two groups,
the voluntary organisations which came into existence under the
provisions of private law will be dealt with first h e r e as being the
most important, the others only in so far as individual cases are of
interest.
T h e fact that organisations come into existence under private
law does not preclude the State from setting u p certain rules for them
based on public law. Article 124 of the Federal Constitution, the first
1
The Federal Supreme Court, however, in its judgment of n Feb. 1926
(Neue .Zeitschrift für Arbeitsrecht, 1926, cols. 556 et seq) has not admitted
the claim of a trade union for damages.
2
Sections 81 et seq., and 100 et seq. of the Industrial Code. It is
doubtful, however, whether the compulsory guild may be regarded as a
combination in the meaning of Article 159 of the Federal Constitution.
Cf. judgment of the Oberverwaltungsgericht, Hamburg of 12 June
1927 (Reichsarbeitsblatt,
official section, pp. 192 and 410).
36
FREEDOM OF ASSOCIATION
section of which repeats section 1 of the Associations Act, a n d t h u s
gives it the security of constitutional law, is applicable here. T h i s
confers the r i g h t on all German citizens to form associations or
societies for purposes not forbidden b y criminal law. T h i s right is only
conferred on nationals. Foreigners may form associations, b u t this
freedom is purely a de facto one, it is not secured by law. T h e police
m a y therefore resort to a n y measures deemed suitable against a foreign
association a n d its members, but naturally only to the extent that
the association provides cause for State intervention \
T h e above provisions apply t o associations in general. T h e i r
application to trade combinations therefore requires that they shall
be associations. It has already been noted that this is not always the
case, a n d it is doubtful now whether the local office of a trade union
is a pay office or an independent local union. T h e courts have drawn
a sharp distinction between the two and hold the local g r o u p a union
if it is uniformly controlled and if it has arisen independently t h r o u g h
the combination of workers in the same trade a n d not merely under
t h e direction of the central union. On the other hand, local
administrative branches are held to be organs of the central union,
not unions, if they lack independence, are established by the executive
committee, have no capital of their own, must account to the executive
committee in detail for the use of their funds, and have strictly
defined duties 2 .
T h e Civil Code (Chapter I I , Juridical Persons, I. Associations)
defines the form of a trade association in private law. Associations
which acquire legal personality must, according to this Code, be
distinguished from those lacking such personality. Both groups have
in common a contractual foundation deed and a corporative constitution, which render the association independent of a change in its
members, thus distinguishing it as an association from t h e " company "
of civil law. T h e chief matter in this connection is t h e creation of
association organs : the general meeting, executive committee, to
" l DELIUS, op. cit., Preamble C.
2
Judgment of the Kammergericht of 18 Nov. 1922
(Reichsarbeitsblatt, 1923, official section, p. 711), referring to the former judgment of
the Federal Supreme Court. Judgment of the Oberlandesgericht, Hamm,
of 4 March 1925 (Neue .Zeitschrift für Arbeitsrecht, 1925, col. 557). In
the judgments of the Oberlandesgericht, Dresden, of 1 Feb. 1923 and the
Supreme Court of 3 May 1924 it is recognised that the " district branch
of a trade union is not an independent union " (Reichsarbeitsblatt,
1925.
official section, pp. 286 et seq.).
GERMANY
37
which in trade associations is added the third organ (not essential in
private law), the administrative committee. Associations and therefore trade combinations which are associations are free to acquire
legal personality or not. Organisations have, indeed, availed themselves of this liberty, and it may be stated that in general the
employers' federations are incorporated and the trade unions unincorporated associations. The causes of this distinction are bound
up with the consequences arising from incorporation and nonincorporation.
The acquisition of legal personality is dependent on entry in
the association register kept by the lower courts '. The conditions
of entry are : the association must have at least seven members ; on
application, two copies of the rules which must comply with certain
minimum prescriptions, as well as a copy of the deeds concerning
the appointment of the executive committee, must be filed with the
court records. Before registration can take place, the lower court
must inform the administrative authorities of the application of the
association. In pursuance of a regulation in section 61 of the Civil
Code, which was in force before the Weimar Constitution was
proclaimed, the administrative authorities could enter a protest
against the registration if the association had a political, social or
religious object. This regulation, by reason of which it would have
been almost impossible for a trade union to acquire legal personality
before the war, in view of the attitude of the authorities at that time,
even had it so desired, is now rescinded by paragraph 2, No. 2, of
Article 124 of the Constitution, and therefore the registration of
an association can no longer be prevented for these reasons. But even
to-day a right of protest still exists if the association is unlawful,
i.e. if its aim contravenes the Penal Code and therefore section 1 of
the Associations Act. In the Associations Register are entered the
name of the association, its headquarters, the date of the approval
of the rules and the names of the members of the executive committee.
All alterations in the rules or in the executive committee must be
submitted to the court and registered by the latter. The executive
committee must supply the lower court at any time, on application,
with a declaration of membership numbers, a deed which incorporated in the court records. The Register as well as the records
are public and may be inspected by anyone. Finally, the association
may be deprived of legal personality under the provisions contained
1
Cf. sections 55 et seq. of the Civil Code.
3*
FREEDOM OF ASSOCIATION
in sections 42, 43, a n d 73 of the Civil Code if it endangers the
welfare b y an unlawful resolution of t h e members' meeting or
action of t h e executive committee, or alters its objects contrary
rules in such manner that it should never have been registered
public
illegal
to t h e
\
On t h e other h a n d , section 54 of t h e Civil Code contains, i n
regard to unincorporated associations, t h e sole provision that they
are to be governed b y t h e regulations which apply to companies.
These a r e regulations coming under t h e law of obligations a n d
contain n o provisions,as t o form.
T h e formalities which t h e registered association must undergo
have always caused t h e trade unions to fight s h y of registration.
Before a strike, for instance, it is frequently undesirable to make
k n o w n their membership figures ; yet t h e above-mentioned declaration of such figures is available for public inspection. T h e chief
cause of this dislike of registration, however, is t h e distinction drawu
b y t h e law in material matters between registered a n d unregistered
associations 2 .
T h r o u g h registration the association becomes in the sense of
civil law a n independent legal person. I t can consequently hold or
acquire property in its own name, i.e. have capital, can conclude
contracts, and has contractual liability ; like a natural person, it is
also answerable for unlawful acts committed by its executive committee or its authorised agent, in accordance with the special provision
of section 31 of the Civil Code 3 . I n consequence, t h e association can
both sue a n d be sued. T h e individual members of the association
stand in a third party relation to all these rights and obligations.
T h e positioii is different in regard to t h e unincorporated
association. I t is n o t a n independent legal person a n d in consequence only t h e s u m total of its members can hold or acquire
1
For instance, if the union establishes its own economic and business
service, then in so far as it is not subject to the provisions of the Commercial Code, legal capacity can only be bestowed on it by the State
(section 22 of the Civil Code).
2
Cf. the following : PETERS : " Rechtliche Stellung und innerer
Aufbau der Arbeitnehmerberufsvereine " ; LANDMANN : " Rechtliche Stellung und innerer Aufbau der Arbeitgeberverbände " ; SCHMIDT : " Die
Vereinigung von Berufsverbänden in ihrem rechtlichen Aufbau. " All the
above are in K A S K E I , :
3
Koalitionen.
According to criminal law, only the natural person is liable. On
the other hand, according to sections 40 et seq. of the Penal Code and
23 et seq. of the Press Act, the property of an association can likewise
be expropriated and withdrawn.
GERMANY
30
property ; neither a bequest nor a legacy can be bestowed on an
association as such \ I n ordinary legal practice, however, it leads
to practical difficulties if the sum total of members m u s t always
appear a n d act, for t h e absence of a single m e m b e r renders the act
invalid. I t is often customary, therefore, to employ a trustee, w h o
acts in his own name for the association, especially in connection
with dealings in real estate.
As the executive committee does not enjoy the position of an agent
in law as in the registered associations, the unregistered association
is not directly responsible, like the registered association, for its
unlawful acts. Responsibility is only incurred if all t h e members of
the association t a k e part in the act, or if the association in selecting
its representatives failed " t o use reasonable care in its b u s i n e s s " ,
or if it expressly instructed its agent to commit criminal acts. A
n u m b e r of questions must therefore be examined and answered before
the liability of an organisation can be determined, and difficulties
are often experienced in deciding these questions correctly 2.
I n contracts t h e unincorporated association, or rather the sum
total of its members, is liable by virtue of the full powers which must
be conferred on the executive committee for it to act legally. These
powers are usually embodied in the rules and can even be tacitly
implied. I n accordance with company law, which is applicable to
unincorporated associations, liability for the c o m p a n y ' s obligations
falls on all t h e members u p to t h e e x t e n t of their entire property,
unless the terms of the company's contract precludes this and this is
k n o w n to the other party. T h e courts recognise that the members of
1
It is possible, however, for the bequest to be given to the members
of the association, present and future, or to the members of the executive
committee with the provision that it shall be left to 'the association
(Kommentar der Reichsgerichtsräte zum B.G.B., 12th edition, section 54,
note 1).
2
N E S T R I E P K E , op. cit., p . 29. The fact must not be ignored that there
is a noticeable effort on the part of judges to subject the unincorporated
associations to the severe provisions concerning liability to which the
registered associations are subject. The Federal Supreme Court once
raised the question of the applicability of section 31 of the Civil Code to
unincorporated associations. A recent judgment of the Hanseatic
Oberlandesgericht in Hamburg of 8 April 1924 (Reichsarbeitsblatt,
1924,
official section, p. 340) denied the applicability of liability under section
31 of the Civil Code to an unincorporated workers' organisation, but
simultaneously recognised liability in view of the prevailing opinion.
This verdict was severely attacked by jurists. Cf. HOENIGER'S comments
on the judgment in the Juristische Wochenschrift, 1924, p. 1882.
4ô
FREEDOM OF ASSOCIATION
associations will only assume liability to the e x t e n t of their share
obligations, not their entire property, even if this is not laid down
in the rules '. Along with them, the executive committee is personally liable (section 54, subsection 2 ) 2 . T h e unregistered association
formerly could not bring a n action in court, b u t it could be sued.
Only the members could b r i n g a n action, and j u d g m e n t was effective
for or against them only. Since the passing of the Labour Courts
Act (Arbeitsgerichtsgesetz)
of 23 December 1926, however, the trade
unions can bring an action in regard to matters within t h e scope of
the application of this law.
I n comparing the advantages and disadvantages of legal personality, it is not difficult to realise t h a t the possibility of excluding
the greater-liability of incorporated associations in private law in the
case of tortious acts — especially important as regards the combativeactivities of the trade unions — outweighs all t h e disadvantages in
legal transactions. I n addition, the distinction between incorporated
and unincorporated associations has no importance in social affairs,
which form the main activities of trade associations, and therefore lack
of legal personality does not hinder development.
H e r e legislation affords " the industrial associations of employers
a n d employed " the possibility of concluding collective agreements,
of bringing complaints and appearing before the conciliation and arbitration boards and of exercising public functions without regard to
legal personality in civil law. A l t h o u g h it is true t h a t the. old legal
provisions remain unaltered, it is clear that, without regard to t h e m ,
the law has taken a new form. T h u s a certain contradiction has
arisen, and the difficulties which can occur in legal practice from the
inter-relation of private and social rights will be shown later.
T h e associations' rules form the main legal basis of their internal
rights. I t was pointed out in the Introduction t h a t employers'
organisations frequently prescribe certain conditions of affiliation. On
the workers' side the usual condition of entry is employment in the
1
Kommentar der Reichsgerichtsrätc
zum B.G.B., 4th pdition, Berlin, Leipzig, 1922, section 54, note 2.
2
Contrary to the judgment of the Oberlandesgericht of Saxony of
12 Jan. 1927 (Reichsarbeitsblatt,
1927, official section, pp. 60 et seq.),
the judgment of the Federal Supreme Court of '25 May 1927 (Reichsarbeitsblatt, 1927, official section, pp. 363 et seq.) ruled that the executive
committee is liable also for the maintenance of peace in accordance with
the obligation arising out of a collective agreement, even where this
obligation is legally founded on a " compulsory agreement " created by
an award which was declared binding and not on a voluntary agreement.
GERMANY
41
trade represented by the trade union in question. T h e rules of t h e
General Federation of G e r m a n T r a d e Unions, for instance, insist t h a t
all male and female workers shall join the trade union for the trade
in which they are occupied, and give in sections 6 et seq. a special
ruling on differences in competency.
Special qualifications for
membership or for the executive committee do not exist in the law.
Subsection 2 of section 152 of the Industrial Code was of decisive
importance to the internal structure of trade organisations. I t laid
down that proceedings could not bé taken with regard to the fulfilm e n t of the association agreements (e.g. the payment of contrib u t i o n s ) , nor could the non-fulfilment of the contract be placed as
a defence. Before 1914 judicial decisions consequently laid it down
that the fulfilment of agreements could not be secured by contract
penalties and even that independent agreements stipulating conventional penalties were no more actionable than company agreements
themselves \
To-day, however, the decision of 9 July 1925 of the Supreme
Court mentioned in the foregoing chapter has decided to the contrary,
and action m a y now be taken by trade combinations, like every other
association, in regard to both contribution and contract penalties.
Only the general provisions of contract, association or company
law apply nowadays, therefore, to the internal organisation of the
trade combination '. W h e r e a s t h e law formerly contained restrictions
in regard to membership, laying down that persons who had not
yet completed their eighteenth year could not become members of
" political associations ", a n d civil servants were prohibited from
joining u n d e r the disciplinary legislation, such restrictions no longer
exist to-day.
T h e question of how far a member — outside subsection 2 of
section 152 of the Industrial Code — can be retained within an
association against his will, viz. the e x t e n t to which his exit can be
barred, is still, however, of vital import to the association. According
to section 39 of the Civil Code, members may withdraw from an
association ; this is a rule which cannot be altered either by a rule
1
LANDMANN : Kommentar zur Gewerbeordnung, 5th edition, 1907,
section 152, note 4.
2
The Federal Supreme Court decided on 9 Sept. 1921 (Neue Zeitschrift für Arbeitsrecht, 1922, cols. 262 et seq.) that all members must be
summoned to a general meeting, otherwise any resolutions passed were
invalid. Thus the principles laid down for registered associations were
also applied to unregistered ones.
42
FREEDOM OF ASSOCIATION
of the association or private agreement ; it can only be decided that
withdrawal m a y not take place u n t i l the end of the business year or
until the expiry of a period of notice not exceeding two years. T h e
unincorporated association is further b o u n d b y the provision of section
723 of the Civil Code which allows a n extraordinary right of withdrawal for any serious reason ; nor can this regulation be set aside
b y a n y rule of the association I .
T h e above provisions are derived from general association a n d
company law. Apart from these, the special provision of Article 159
(paragraph 2) of the Federal Constitution is considered applicable t o
trade combinations by those who belong to the individualistic school
of thought, a n d it is regarded as an improper restriction on the freedom
to refrain from association if a member is retained with the organisation for longer than he desires by special conditions of notice. T h i s
is therefore a practical example of t h e interpretation of Article 159
dealt with above. I n actual fact, the condition of notice whereby
withdrawal from a trade union may only occur, for instance, on 31
December after due notice, or after a period of notice of more t h a n
two m o n t h s , has been declared an offence against Article 159, as
being compulsory association, and therefore null and void 2 .
The
courts have treated in a very dissimilar way cases where, such
provisions having been set aside as void, the rules of the association
fail to provide for the situation. W h e r e a s , in the decisions cited
above, the Leipzig district court left it to the association to remedy
the omission, considerations of a general nature caused the Dresden
lower court to substitute a period of two months foi a longer one, but
made a further restriction by stating that, in pursuance of Article 159
of the Constitution, a member could not be retained a t all in an
association against his will if the withdrawal was caused by especially
serious reasons which made retention unreasonable.
T h o s e w h o uphold the contrary view insist, however, t h a t
associations cannot fulfil their tasks unless they can conclude
1
Cf. the judgment of the Landgericht, Frankfort-on-Main, of 4 Jan.
1923 (Neue Zeitschrift für Arbeitsrecht, 1924, col. 177).
2
Judgment of the Amtsgericht, Leipzig, of 13 Oct. 1921 (Neue Zeitschrift für Arbeitsrecht, 1922, col. 580); judgment of the Amtsgericht,
Berlin City, of 21 Dec. 1921 (Gewerbe- und Kaufmannsgericht,
1922, col.
158); judgment of the Amtsgericht, Dresden, of 11 Dec. 1923 (Neue Zeit-,
schrift für Arbeitsrecht, 1924, col. 305); and judgment of the Landgericht,
Leipzig, of 9 Feb. 1924 (Neue Zeitschrift für Arbeitsrecht, 1924, col. 305).
GERMANY
43
agreements w i t h their members in regard to withdrawal, notice, etc.,
in accordance with the principle of freedom of contract \
T h e r e still remains to be examined the m a n n e r and legal conditions under which a n association comes to a n end. T h i s takes place
under the general rules of law.
I n so far a s civil law is concerned, voluntary dissolution takes
place by means of a resolution passed at the m e m b e r s ' general meeting.
Special conditions apply to the guilds as associations in public law,
the causes of dissolution for which are enumerated in the Industrial
Code. T h e guild m a y be dissolved if it has committed illegal acts or
omissions endangering the public welfare, or if it pursues other than
the lawful objects (section 97, subsection 3, of the Industrial Code).
According to section 2 of the Associations Act, compulsory dissolution
can only be applied to a n association the aims of which contravene
the Penal Code and therewith section 1 of this Act. T h e former
provisions contained in section 24 of this Act, which permitted State
restriction a n d compulsory suppression of an existing association,
were abrogated during the Revolution. Moreover, the police right of
interference and dissolution of political meetings under sections i o ,
13, and 14 of the Associations Act,_Jn so far as the r i g h t still holds
good, does not apply to trade combinations by reason of section 17 (a).
I t would appear to follow from Article 159 of the Constitution that
trade associations cannot be dissolved.
P a r a g r a p h 2 of Article 48 of the Constitution is not without
importance to trade unions. I t grants the President of the Republic
the right, if public security and order in G e r m a n y are seriously
endangered, of resorting to any measures that m a y appear suitable to
secure safety and order, and of declaring a " state of emergency "
during which a number of fundamental rights, among them Articles
123-124 of the Constitution, may be rendered temporarily invalid.
Article 159 is not included among t h e m . I t is a disputed point
whether in these circumstances trade combinations in their character of
associations can be dissolved on account of the invalidation of Articles
1
Cf. the judgment of the Landgericht 2, Berlin, of 29 Nov. 1923 (Neue
Zeitschrift für Arbeitsrecht, 1924, cols. 374 et seq. and LANDMANN :
Blätter für Arbeitsrecht 1924, No. 6. The Federal Supreme Court declared
in its judgment of 23 March 1926 (Neue Zeitschrift für Arbeitsrecht, 1926,
cols. 438 et seq.): " A provision in the rules rendering it altogether
impossible for a member of the association to join another association
would be in direct contradiction to Article 159 of the Federal Constitution
and therefore null and void. "
44
FREEDOM OF ASSOCIATION
123-124 during the state of emergency \
have not occurred 2 .
I n practice such dissolutions
Compulsory dissolution is effected by order of the competent
administrative authorities. Legal redress may be sought, according
to State law, by way of administrative procedure (three appeals),
not t h r o u g h the ordinary courts.
T h e fate of the property of an association after dissolution
depends on its rules. I n default of such provisions it is distributed
a m o n g t h e members after an interval of one year, unless this r u n s
counter to the objects of the association (sections 45 and 51, Civil
Code). T h i s . a p p l i e s in t h e case of both voluntary and compulsory
dissolution. T h e State has no right of expropriation.
1
JACUSIEL : " Wesen und Inhalt des geltenden Koalitionsrechts. "
MARCUSE : " Die Ausgestaltung des Koalitionsrechts im geltenden •
Recht. " Both in KASKEL : Koalitionen.
2
The restrictions on the right to strike expressed in Article 48 of the
Constitution will be discussed below.
CHAPTER I I I
THE ACTIVITIES OF TRADE ASSOCIATIONS
The activities of trade associations are determined by their
objects. The usual definition of'these objects is the protection or
improvement by an association of the economic or social position of
its members ; but they extend over a wide sphere which may be more
or less narrowed by legislation. Section 152 of the Industrial Code
only abrogates the Decree against agreements and combinations
designed to obtain better conditions of pay and labour ; Article 159
of the Constitution guarantees freedom of association for the purpose
of protecting and furthering economic and labour conditions.
Section 152 only declared permissible activities under certain
,conditions, in specified places, and for certain occupations '. By
virtue of Article 159, trade associations are permitted activities, not
only with regard to certain definite conditions of labour, but in the
whole sphere of their economic and social existence. Thus the
activities of trade associations have no narrow limits, although they
may not deprive the organisation of the character of a trade association.
The objects must primarily be such as would be pursued on
behalf of the members of the association as persons engaged in a
definite calling, or, generally speaking, as employers or employed.
If the organisations pursue yet other aims (e.g. the amelioration of
conditions of production or sale), they do not result in benefit to the
members in their capacity as employers or employed but to certain
employers or employed in their capacity as members of this particular
organisation. This case must be eliminated 2. The ultimate objects
of every organisation of employers and employed must lie within the
1
2
GROH, op. cit., p. 26.
That an employers' association is not a cartel was decided in the
judgment of 5 May 1924 (K. 100/24) °f the Kartellgericht.
46
FREEDOM OF ASSOCIATION
sphere of social affairs. The means employed to attain these
objects, on the other hand, may vary, and it is in this respect that
modern legislation has opened a wide field. Activity in economic,
cultural and political spheres is permitted so long as such activity
remains but a means to an end. Co-operative societies may not be
trade unions, for instance, but trade unions may promote a cooperative system in the pursuance of their aims. This limitation is
particularly important in the sphere of politics. Organisations are
not prohibited from pursuing political aims for the purpose of realising their social objects by influencing legislation, but these political
aims may only take the form of subsidiary action. For this reason
the character of an economic association of workers was occasionally
denied in practice to the Communist Union of Hand and Brain
Workers, on the grounds that its chief aims were political and
comprised the establishment of' the Russian Soviet system and that
the economic interests of its members were but a secondary
consideration 1.
In the ensuing portion of this work will be shown the manner
in which the association endeavours lawfully to achieve its objects.
A distinction will be drawn between the activities directly connected
with the relations between the social groups of employers and employed
and those which only indirectly affect the other group and which
may be distinguished either as internal with regard to the members
or external with regard to the State. Only if the members are
protected, supported and trained or if the association can make its
influence felt in legislation, administration and the courts of justice,
can trade union interests be thus indirectly furthered. We will now
deal with these indirect activities, first with, the internal, then with
the external ones, finally with the direct activities, of which latter the
peaceful ones will be treated first and the combative activities of the
association last.
1
Decision of the Halberstadt Arbitration Committee, in Neue Zeitschrift für Arbeitsrecht, 1922, col. 695, and of the Barmen Arbitration
Committee and Beschwerdekammer (Appeal Court), in Schlichtungswesen, 1924, p. 16. This is disputed, however ; cf. HUECK : Handbuch
des Arbeitsrechts, Vol. Ill, " Tarifrecht ", p. 24.
GERMANY
47
§ 1. — Internal Activities and Participation in State Affairs
INTERNAL
ACTIVITIES
T h e activities of the employers' organisations for the benefit of
their members are small a n d are, as already shown, not real
association activities. Mention must, however, be made, of a n
arrangement found in certain employers' associations to provide
assistance in time of strikes, viz. the strike compensation funds. T h e y
g r a n t compensation in the event of a strike after t h e state of affairs
has been notified by the employer and verified. These funds may
also exist as independent institutions either affiliated to the association or entirely independent concerns \
On the workers' side, internal activity assumes disproportionately
greater dimensions. I n accordance with the n a t u r e of trade unions,
its aim is to maintain or ameliorate the economic a n d social position
of the members. I n this connection a distinction must be drawn
between economic and cultural institutions. T h e benevolent funds
for sickness, disablement, old age a n d death, institutions which must
be based on the rules, give economic protection. I n the rules the
condition is frequently found that there is to be no legal claim on
benefits enforceable by the courts 2 . T h e benefits granted to strikers,
travelling and removal expenses, a n d the labour exchange are intimately connected with the direct activities of a trade union. W h i l e
none of the institutions are connected with the corresponding State
institutions it is otherwise with regard to the unemployment aid
established by the trade unions. According to t h e Decree on unemployment aid, i n the text of 1920 (section 4 ) , t h e p a y m e n t of benefits
a n d control of the unemployed could under certain conditions b e
transferred from the State to the workers' organisation on the application of the latter.. T h i s provision has subsequently been rescinded
by the Decree of 1 November 1921 in the text of 16 F e b r u a r y 1924,
1
For example, the German Strike Protection and Indemnity Society
for Strike Losses (Deutscher Streikschutz,
Entschädigungsgesellschaft)
of the Federation of German Employers' Associations, according to its
oules of 1920.
2
Otherwise the trade union would come within private insurance
law and would be subject to official supervision. Cf. the judgment of
the Landgericht, Berlin, of 21 Dec. 1925 (Arbeiterrecht und Arbeiterversicherung, Feb. 1926).
•J8
FREEDOM OF ASSOCIATION
but according to subsection 3 of section 7, benefits drawn by t h e
unemployed from a n outside source are calculated at a half-rate \
Institutions connected with methods of production do not exist
in G e r m a n y . T h e control system by m e a n s of labels is not practised.
T h e trade unions are connected with the co-operative societies, b u t
do not possess in general their own co-operative institutions.
A much greater use is made of the so-called " labour secretariats "
established by t h e local trade union committees. T h e y maintain legal
information offices which supply advice and support to the members
of the unions in legal matters. General and occupational training
courses are frequently instituted by the local branches, but more
often by the central organisations. T h e works council courses,
intended to educate the members of trade unions as representatives
on works councils, have acquired special practical importance 2 .
By reason of their origin and aims, most of these educational
organisations enjoy a local character or are confined to an individual
union. But there are also institutions with much wider aims, and
which are therefore n o longer " internal " union concerns in the
sense that they owe their existence only to an organisation. T h e y
m u s t be mentioned in this connection since they could not have been
called into existence without the trade unions, and since their activities are intended to benefit chiefly, if not exclusively, t h e members
of these unions.
T h e r e are the schools of economics ( Wirtschaftsschulen)
under
the support of the Prussian Ministry of I n d u s t r y and Commerce 3 .
I n addition, together with provincial and communal authorities, the
General Federation of G e r m a n T r a d e Unions, the Central Body of
1
Following on the lines of the other social insurance laws, the Act
on labour exchanges and unemployment insurance of 16 July 1927 provides for independent insurance departments under public law, in the
various organs of which representatives of employers and employed
wield decisive influence.
2
The institutions of the metal workers' union were of special significance. Cf. Jahrbuch des deutschen Metallarbeiterverbands,
1Ç22. A
temporary decrease occurred in both 1923 and 1924 ; cf. the Jahrburch for
these years.
3
Berlin and Düsseldorf. The Berlin school had to close during the
inflation period. Cf. SEELBACH : " Organisation und Bedeutung der
staatlichen Fachschulen für Wirtschaft und Verwaltung ", in Reichsarbeitsblatt, 1925, unofficial section, pp. 656 et seq.; STURMFELS : " Die
Akademie der Arbeit in Frankfurt a. M. ", in Reichsarbeitsblatt,
1925,
unofficial section, pp. 659 et seq. (Jahrbuch des A.D.G.B., 1924, pp. 180
et seq.).
GERMANY
49
the T h r e e Federations of Christian Workers, and the T r a d e Union
League are participants. T h e aim of these schools is to educate the
worker politically :
Every man has his portion of labour. Through this mechanical division of the whole of life all suffer, but the greatest sufferer must surely
be the worker. Each man has become but a part, yet longs in his heart
for the whole. With the help of the study in the schools of economics it
becomes possible to obtain, theoretically at least, an insight into the
whole and thus to acquire a grasp of all the events and phenomena in
wider circles of labour 1 .
T h e Academy of Labour (Akademie
der Arbeit) in Frankforton-Main, established in 1921 in pursuance of an agreement between
the Prussian education authorities on the one hand and the General
Federation of G e r m a n T r a d e Unions, the Federation .of Unions of
Salaried Employees, the Central Body of the Three Federations of
Christian W o r k e r s , a n d the Trade Union L e a g u e of W o r k e r s ' , E m ployees' and Civil Service Associations on the other, aims at supplying
higher education to workers, employees, and civil servants, in order
to assist t h e m i n exercising economic, social and political selfgovernment. T h e idea of the Academy is not an education for the
purposes of higher State administration, nor specialised training, nor
political party schooling. Rather is the worker, who has tasks to
perform in public life — and this applies especially to the trade union
leaders of all classes of thought — to receive a systematic training
for this purpose. A few statistics of the number and class of attendant
at this Academy are of interest 2 :
Attendance at
Number
Delegated by trade unions
Trade union clerks
From industries
Bv trade unions :
A.D.G.B.
A.F.A.
Central Body of Christian
Federation
Trade Union League
Federation of Civil Servants
Unorganised
1
1
2
Plus 11 Swiss.
SEELBACH', op.
cit.
STURMFELS, op.
cit.
Freedom of Association
First
course
Second
course
Third
course
Fourth
course
73
65
59
55
43
52
32
17
42
26
31
33
32
17
26
2
54
3
43 '
3
43
4
7
5
1
—
—
-—
2
1
1
1
—
—
- Plus 4 Swiss.
35
41
4
5
—
1
1
S«
FREEDOM OF ASSOCIATION
THE
i
P A R T I C I P A T I O N OF T R A D E ASSOCIATIONS IN T H E S T A T E
T h e result of the policy adopted by the State before t h e war of
suffering the existence of the association b u t restricting its sphere of
activity to the utmost was t h a t the trade associations could only
maintain their existence in regard to the State, so to speak, surreptitiously. T h i s state of affairs changed during the war. T h e assistance
of the associations was employed for carrying out the Auxiliary
Service Act of 5 December 1916. T h e arbitration boards provided for
under this A c t were to be constituted with an authorised • agent of the
W a r Office as president and three representatives each of employers
and workers, elected from lists of candidates submitted by associations
on both sides '.
By the agreement of 15 November 1918, the trade unions were
recognised by the employers' associations as the appointed representatives of labour, which state of affairs has been constitutionally confirmed by Article 165 of the Constitution. T h u s was the basis
created for incorporating them in the legal organisation of the State.
T h e system of workmen's and economic councils planned in Article
165 has remained on the whole an aspiration. T h e works councils
created under the W o r k s Councils Act have no duties to fulfil whereby
they might replace or be placed on an equal footing with the State
organs. T h e district and federal w o r k m e n ' s councils do not yet
exist, their functions are exercised by other authorities. T h e economic councils do not exist at all, only a provisional Federal Economic
Council is established. Nevertheless, the associations of employers
and employees are systematically called upon to co-operate in State
activities whenever such activities come within their sphere. Regulations in this connection may be found' scattered over numerous Acts
and Decrees. A n account of them will be given in which the
distinction will be drawn between administrative, judicial, and legislative functions. N o attempt will be made to give a complete account,
for this would entail more than a mere enumeration of facts and
would have to deal with the question of the effect of this participation
in State life on the legal position of trade associations. Only the
existence of this problem can be pointed out, and only examples of
the various kinds of such union activity will be given here 2 .
1
KASKEL : Das neue Arbeitsrecht, p. 244. Berlin, 1920.
Cf. also H E R R F A H R D T : " Die Stellung der Berufsvereine im Staat ",
and M I L L E R on the same subject, both in KASKEL : Koalitionen. Likewise
NEUMANN : " Zur öffentlich-rechtlichen Natur des Tarifvertrags ", in
Arbeitsrecht, XIII, No. I, cols. 39 et seq.
2
GERMANY
51
I n the sphere of administration associations are found represented
in those economic government institutions which were created in
connection with the public control of certain industries, e.g. in the
Federal Coal Council, the aim of which is to represent all coal
interests \ Similar objects in connection with export and import
trade belong to the Foreign T r a d e Boards
(Ausenhandelsstellen),
and with prices in general to. the Price- Control Offices (Preisprüfungsstellen),
in which the trade combinations participate.
The
latter are even appointed to administrative institutions serving, not
merely industrial, but general public welfare, to the juvenile departm e n t s 2 a n d the Film Testing Offices 3 , for instance. T h e sphere
proper of the administrative activity of trade combinations is naturally
social administration. I n connection with housing, mention m a y
here be made of the Settlement Association for t h e R u h r Coal Area 4 ,
in the general meeting of which t h e employers' and workers'
associations participating are equally represented.
T h e administrative committee, which has to be formed for every
public labour exchange under the Labour E x c h a n g e Act, consists
of a president together with not less t h a n three each of employers
a n d employed as members ; these members are appointed, from lists
of candidates from the industrial associations concerned, by the
municipality in which the exchange is set u p . T h e organisations
have a right of complaint against the municipality if the views of
their selected representatives are given no, or insufficient, attention
(sections 7 and 9 of the A c t ) .
Similar conditions apply to the administrative committees of
t h e State Departments and of the Federal E m p l o y m e n t Department.
T h e administrative committee m a y administer unemployment benefits
directly (e.g. sections 14, 15 and 16 of t h e Decree on unemployment
benefits) or act as a receiving office for complaints (section 29).
Organisations are thus enabled to exercise a regulating and controlling
influence.
of
Branch committees for home work are established at the instance
the unions concerned ; t h e m e m b e r s of these • committees
1
Decree of 21 Aug. 1919.
According to the Act on juvenile welfare of 9 July 1922.
3
Act on cinemas of 12 May 1920 and Administrative Regulations of
16 June 1920.
4
Act of 5 May 1920.
2
52
FREEDOM OF ASSOCIATION
are nominated in part from lists of candidates submitted b y
federations of employers and employed '.
the
I t is taken for granted nowadays that such organisations should
co-operate in administrative activities which directly affect labour
conditions, such as the regulation of hours of labour 2 , arbitration 3 ,
etc.
Apart from these cases, for which the law makes general
provision, it happens no less frequently that on special occasions the
trade combinations are drawn into co-operation by administrative
officials on administrative instructions alone, for instance, in local
administration and especially in the permanent advisory councils or
temporary committees in the Ministries.
An examination of the way in which this co-operation in
administrative affairs is effected shows two main methods : sometimes the organisations are required to be heard by the administrative
officials before the latter make their decisions, e.g. before the
establishment of the branch committees for home work ; or it
may be that they participate directly in administration b y sending
representatives to t h e administrative bodies in question. T h i s , of
course, is the most important class of case ".
A s in administration, so in judicial functions the organisations
participate in a degree corresponding to their interests, therefore
only in the labour courts.
T h e previous legislation provided that employers a n d workers
were to be consulted before the industrial courts
(Gewerbegerichte)
and commercial courts (Kaufmannsgerichte)
were constituted.
Workers and employers had to elect the assessors in accordance with
the principles of proportional representation. Actually, however,
as regards the workers' side, the organisations were consulted a n d
they prepared the elections of the assessors (section 50 of the rules
of the A . D . G . B . ) . According to the new'legislation of 1923 (First
Decree concerning the application of the Decree on Arbitration of
1
Act of 20 Dec. 1911, according to. the text of 30 June 1923.
- Decree on hours of labour of 21 Dec. 1923 and Administrative Order
of 12 April 1924 (sections 2, 6, and 8).
3
Decree of 29 Dec. 1923, sections 2, 3, and 4.
4
In so far as agreements of organisations can replace administrative
acts (e.g. regulation of hours of labour by collective agreement),
"autonomous economic government " is exercised, but the organisations
do not participate in the administration in the more exact sense. This
point is dealt with in detail below.
GERMANY
.
53
io December 1923), the administrative authorities are expressly
bound to adopt the proposals of the industrial associations in case
of supplementary elections of the assessors. Similarly, the assessors
on the then newly constituted Labour Chambers of the Arbitration
Committees had to be nominated from lists of candidates submitted
by the industrial associations concerned. The consolidation of the
legislation on labour disputes by the Labour Courts Act of 23 December 1926 has also brought about a change in the position of the
trade associations in regard to the labour courts. This could not be
otherwise, as the newly created courts have now to decide on all
disputes arising within the sphere of labour law, in particular those
concerning trade unionism (section 2 of the Labour Courts Act).
The following are the main points of interest in regard to the new
judicial methods for dealing with labour questions : the courts of
first instance are the labour courts (Arbeitsgerichte).
Employers'
and workers' organisations are to be consulted before the courts are
established (section 14, subsection 1). The same applies when
general, not purely technical, regulations concerning administration
and control are issued (section 15, subsection 1). Each court consists
of several Chambers. Each Chamber has a chairman and two, in
some cases four, assessors, representing workers and employers in
equal numbers (section 16). The organisations are consulted as to
the number of Chambers to be established and as to whether special
Chambers for certain trades are to be created. The assessors are
nominated by the Government. They must, however, be chosen
from the list of candidates submitted by the industrial associations
of employers and workers in the area concerned, in equitable proportions, due regard being taken of minorities (section 20). The
assessors are to be employers and workers. Members and officers
of industrial associations of employers or federations of associations,
who are authorised either by virtue of the rules or by special provision
to act as representatives, may, however, also be nominated as assessors
(section 22). The same holds good for workers and salaried
employees (section 23).
The State labour courts (Landesarbeitsgerichte) act as courts
of appeal. In this case, too, the organisations are to be heard before
the court is established, and when the administrative rules, are laid
down (sections 33 and 34). The State labour courts consist of
Chambers, in the appointment of the members of which the trade
combinations participate in the same way as in the appointment of
the members of the labour courts. The Federal Labour Court
54
FREEDOM OF ASSOCIATION
(Reichsarbeitsgericht),
which is attached to the Federal Supreme
Court, functions as a " court of revision ". It consists of the so-called
" Senates " (Senate) with a chairman, two judges, and one representative each of employers and workers. The latter are nominated
by the Minister of Labour in agreement with the Federal Minister
of Justice, and are chosen from the lists of candidates submitted by
the head federations of the industrial associations of employers and
workers, equitable representation being given to the different organisations (section 43, subsection i ) . It is of interest to note that the
law provides for an independent representation of the workers' and
employers' assessors on the labour courts and State labour courts
in joint assessors' committees, which represent the interests of the
assessors, and indirectly therefore of the organisations, before the
competent authorities. They are to be heard prior to the establishment of the Chambers, the distribution of business between the
Chambers and the detailing of the assessors to the different Chambers.
They are also to be heard before the lists detailing the assessors to
the sessions are prepared (sections 29 and 38).
As regards the Federal Labour Court, provision is only made for
the hearing of two assessors each of employers and workers, before
business is distributed between the senates and the assessors are
detailed to the senates.
It appears thus that the industrial organisations of employers
and workers which are, in the main, the trade unions, fully participate
in the activity of the labour courts by virtue of legal provisions
introduced to this effect.
The importance to be ascribed in a modern State to the exercise
of influence over legislation need scarcely be debated. There is no
necessity to consider here the extent of the legislative power enjoyed
by industrial organisations through the fact that their representatives
sit in Parliament as members of political parties. This would not
apply specially to trade associations, since every other kind of organisation can make itself felt in this way. In the Federal Economic
Council opportunity is afforded to the employers' associations and
trade unions of directly influencing legislation. Paragraph 3 of Article 165 of the Constitution provides that not only must the Government submit social and economic Bills of fundamental importance to
the opinion of the Economic Council, but that the Council has itself
the right to cause such Bills to be laid before the Reichstag. The
provisional Federal Economic Council, which stands alone of its kind,
GERMANY
55
consists in the main, by virtue of t h e Decree of 4 May 1920, of
representatives of t h e industrial federations of employers and
employed, roughly grouped according to occupations a n d industries.
Associations have therefore acquired a voice in federal legislation '.
Development has naturally not reached an end ; it is, on the
contrary, certain t h a t merely a beginning has been made w i t h legislation of this n a t u r e 2 . N o law o n social questions can dispense w i t h
the co-operation of the industrial organisations in its creation and
observance, and the development of the economic system foreseen in
Article 165 of the Federal Constitution furnishes a vital problem for
future legislation 3 .
T h e most important activities of the trade association to-day,
however, are those, in which the organisations meet each other face
to face as independent powers in order to regulate conditions of
labour, either by conciliatory or combative means. T h e ensuing
section will deal w i t h t h e conciliatory means of settlement.
§ 2. — Co-operation in the Regulation and Application of
Conditions of Labour
T R A D E C O M B I N A T I O N S AND W O R K S
COUNCILS
T h e r e are to-day two main methods in German law whereby t h e
interests of the worker can be brought directly before the employer
or his federation : representation within the shop t h r o u g h the works
council (or other representative bodies for which provision is made
in the W o r k s Councils Act) and representation b y t h e organisation 4 .
1
The provisional Federal Economic Council is to be replaced by a
permanent council. For information on the point cf.: Statement of the
Federal Committee of the General Federation of Trade Unions, in Soziale
Praxis, 1924, cols. 800-810 ; Memorandum of the Central B.ody of Christian Workers, in Zentralblatt
der Christlichen
Gewerkschaften
Deutschlands,
1924, p. 203. Only a reference draft has so far been
published (Reichsarbeitsblatt, 1925, unofficial section, pp. 486 et seq.).
2
This is confirmed, for instance, by the Federal Mining Insurance
Act of 1 July 1926.
3
KASKEL: Arbeitsrecht, p. 240, even mentions that the trade associations had assumed legislative functions by an unwritten State law,
in that they were regularly heard by the Ministries before Bills were
submitted to Parliament.
4
Cf. FLATOW : " Betriebsräte und Gewerkschaften ", in Neue Zeitschrift für Arbeitsrecht, 1924, cols. 385 et seq. IDEM, in KASKEL : Koalitionen.
Also OHLBRECHT : Gewerkschaften
und Betriebsräte.
By
reason of circumstances, the following is chiefly confined to the trade
unions.
56
FREEDOM OF ASSOCIATION
A sharp distinction is drawn legally between the basis a n d structure,
the competency a n d objects of these two methods. While the workers'
,- associations are voluntary organisations united t h r o u g h similar ideals
a n d divided according to occupation a n d industry, the structure of
the works council is dependent upon the legal g r o u p i n g of the staffs
of the individual works with legally prescribed principles and objects
of organisation. W h i l e t h e works council has both its basis a n d its
limits in the works, b u t comprises all workers without distinction,
the functions of the trade unions extend beyond t h e works, b u t are
limited to their own members. T h e duties of the works council are
fixed by law and are confined to the interests of the workers and
indirectly to those of the works in general ; the trade union is free
in its objects a n d is only restricted b y the nature of these objects.
T h e y have in common the representation of labour interests in relation
to the employer ; but their methods and detailed objects are different.
Since, however, their spheres of activity cross, works council and
trade union are inter-related, a n d mention m u s t be made of the
problems arising from the connection between these two forms of
organisation. I t will be shown how the works councils can assist
the trade unions to attain their ends b y peaceful means.
T h e works council cannot in general be regarded as an agent
of the trade unions in the works, even if, as frequently occurs, the
member of the works council is simultaneously a trade union member
or even an official. T h e works council may occupy itself only with
the functions prescribed for it by law. Consequently, it may not
control the organisation books of. the organised workers, as the trade
unions do regularly. I t m a y not undertake trade union recruiting
activities, a n d a precise distinction must be drawn between the
member of the works council as such and the person w h o , although
he holds this position, assumes, in h i s capacity as a trade union
member, a function on behalf of the trade union 1.
I t is consequently evident t h a t the member of a works council
who loses his union membership by voluntary or compulsory withdrawal, or changes his union, nevertheless retains his position as a
member of the works c o u n c i l 2 .
On the other hand, a trade union leader has no right, merely
1
BAVARIAN MINISTRY FOR SOCIAL W E L F A R E :
Decision of io
1921, in Reichsarbeitsblatt,
1922, official section, pp. 101-102.
2
Decision of the Federal Ministry of Labour, in Soziale
1922, col. 32.
Dec.
Praxis,
GERMANY
57
by reason of this position a n d without a legally recognised object,
to enter t h e work premises without t h e permission of t h e employer,
a n d trade unions do n o t enjoy t h e same rights as t h e works councils
within t h e works ; t h e employer is n o t required to submit t h e works'
balance sheet to t h e representatives of trade unions as h e m u s t t o
the works councils \
I n fixing t h e limits of competency of t h e works council a n d t h e
trade union, legislation worked on t h e principle that certain duties
must be eliminated from t h e functional spheres of t h e works council
and retained for t h e trade unions. T h e law therefore g r a n t s t h e
latter a certain influence over t h e works councils. T h e intention in
paragraph i of Article 165 of t h e Federal Constitution is to leave t h e
regulation of conditions of wages a n d labour entirely in t h e hands
of t h e trade unions a n d employers' associations. I t is as a result of
this standpoint t h a t subsection 2 of section 78 of t h e W o r k s Councils
Act grants t h e workers' a n d employees' councils t h e right to cooperate in t h e regulation of wages a n d other conditions of labour
only " in so far as n o regulation b y means of a collective agreement
exists ", a n d this only " in consultation with t h e trade unions of
workers concerned " 2 . T h e trade unions are to assist, a s far a s
possible, in t h e negotiations for a settlement in order that they m a y
make use of their experiences gained in t h e agreements of other
works a n d help to obtain similar results.
Similarly, agreements with t h e employer on rules of employment
may, according to subsection 3 of section 78 of the W o r k s Councils
Act, only occur within t h e scope of existing collective agreements 3 .
These, then, are the things which m a y n o t be withdrawn from t h e
sphere of trade union activity b y t h e works councils. I n addition,
the trade unions can eliminate the legally established works councils
and can restrict or e x t e n d their rights, and activities m a y b e imposed
on the works councils in t h e performance of which they become in
a measure t h e representatives of t h e trade union in t h e works.
Section 62 of t h e W o r k s Council A c t lays down that a works
1
Judgment of the Amtsgericht, Munich, of 14 Feb. 1922, in Schlichtungswesen, 1922,. pp. 209 et seq. Cf. also FLATOW : Kommentar zum
Betriebsrätegesetz, section 31, note i ; and Decision of the Regierungspräsident in State of 14 Oct. 1921, in KARGER-ERDMANN, 21, p. 136.
2
Cf. ANSCHÜTZ, op. cit,. note 3 to Article 165 of the Constitution.
Cf. section 8 of the Works Council Act : " The competency of the
trade combinations of workers and salaried employees to represent t h e
interests of their members is . . . . not affected. "
3
FREEDOM OF ASSOCIATION
58
council is not to be established, or ceases to exist, if by virtue of a
collective agreement declared generally binding there exists or is
in course of establishment in the works another representative body
of the workers '. By means of collective agreements the system of
works councils or the procedure of the workers' representative body
can be modified. Thus, in various industries agreements have been
reached on standard shop regulations.
Subsection i of section 78 of the Works Councils Act requires that
the works councils or the councils of wage-earning and of salaried
employees of a works shall supervise the carrying out of collective
agreements. They are, therefore, to be regarded, in Flatow's words,
" as the servants of the trade unions and as their elongated arm in
the works " 2. Subsection 6 of section 66 of the Works Councils Act,
whereby the works councils must safeguard the freedom of association
of the workers reveals the point at which the interest of works council
and trade union cross. It is made clear by this section that the works
council must unconditionally defend freedom of association against
the employer, for it must, if necessary, point out to him that Article
159 of the Constitution prohibits any prejudice to a worker on account
of his membership of an organisation, and it is likewise bound, in
accordance with subsection 1 of section 84 of the Works Councils
Act, to institute an appeal against notice given on account of membership of a trade union. But the extent to which freedom of
association is to be preserved for the worker in the works depends
upon whether freedom of association is to be considered merely the
right to associate, or also that of refraining from association. According to whichever opinion is held, it must be decided whether the
works council violates its duty if it takes no action in cases of attacks
on the rights of unorganised workers, or encroaches on them itself.
The courts have dissolved works councils on these grounds or have
sentenced their members to penalties '. This shows the difficulties
1
And if the establishment or activities of the works council are, by
reason of the nature of the undertaking faced by special difficulties. On
the other hand, works representatives dealing solely with wages questions
can be established, but they have no legal status or functions.
2
FLATOW, article in Neue Zeitschrift für Arbeitsrecht, op. cit.
3
Judgment of the Landgericht, Hamburg, of 29 May 1925, in Neue
Zeitschrift für Arbeitsrecht, 1925, col. 6ri ; judgment of the Kammergericht of 9 July 1924, in Juristische Wochenschrift, 1925, p. 269. Cf.
.also the case before the Federal Supreme Court in Juristische Wochenschrift, 1925, p. 1874. Cf. also GROTE : " Streik und Betriebsrat ", in
KASKEL :
Koalitionen.
GERMANY
59
that may arise for members of works councils when union a n d works
council obligations are conflicting.
Finally, trade unions have the right under certain conditions to
interfere directly in the works. F o r this right, section 31 of the
W o r k s Councils Act provides the legal basis ; it provides t h a t at
the request of one-quarter of the members of the works council, one
delegate of each trade union of workers represented in the council
shall be summoned in consultation to the meetings. On the other
h a n d , the employer may also demand, by virtue of subsection 2,
that a representative of each of the trade associations to which h e
belongs shall be summoned to the meetings which he is entitled to
attend. According to section 47 of the W o r k s Councils Act, one
delegate for each of the trade unions of workers represented at the
works may take part in a works meeting in an advisory capacity.
T h u s , the trade unions have an independent right of admission ; the
employer has no influence over the choice of the representative, nor
does it matter if the representative is a permanent or only temporary
delegate. T h e trade unions have complete freedom of selection.
According to the prevalent opinion, the domiciliary rights of t h e
employer must give way to this right of the trade unions to enter
his property, a n d trade union delegates who disobey the demand of
the employer that they shall quit his workshops are not committing
a breach of domestic peace \
A survey of the relations existing between the works councils
and trade unions reveals the vital extent to which the right of
association has been supplemented, even strengthened, by the right
of representation in the works ; b u t it must not be ignored that this
implies the emergence of new a n d difficult problems for the trade
unions. T h e free trade unions took this into account and organised
the works council members belonging to their, organisations in works
council bodies. T h e local members are grouped n . local bodies,
which fall again into trade groups, and the local bodies again are
united in the national works council bodies. I t was found necessary
to dissolve the works council body of the A . D . G . B . in 1925.
1
Judgment of the Landgericht, Stuttgart, of 28 April 1923, in
Schlichtungswesen,
1923, pp. 178 et seq. FLATOW : Kommentar
zum
Betriebsrätegesetz,
note i to section 47, and in the above-cited article ;
decision of the provisional Federal Economic Council of 30 May 1922, in
Reichsarbeitsblatt,
1923, official section, p. 340, which bestows this right
on the trade unions when the works assembly will not admit it.
OHLBRECHT, op.
cit.,
p.
174.
6o
FREEDOM OF ASSOCIATION
T h e activities of the works councils constitute a safeguard for
the trade union ; they prepare and supplement, rather than actually
perform, its work. T h e trade union mostly carries out its work in
direct touch with the employer or his associations, and does so, in so
far as peaceful methods are followed, b y means of negotiations leading
either directly, or indirectly by arbitration, to a collective agreement.
TRADE
COMBINATIONS AND COLLECTIVE
AGREEMENTS
T h e history of trade unionism and that of collective agreements
r u n s parallel in many respects. Before the war neither the trade
combination nor the collective agreement were recognised by law as
specific institutions ; the legal status of the collective agreement was
greatly disputed and extremely precarious, a n d its substance and its
legal effect was no less so. W h e n organisations received recognition
after the war, collective bargaining was likewise greatly extended.
T h e following table shows the development of this system during the
last twelve years 1 :
Collective
agreements
Dale
E n d of
»
„
„
„
,.
„
„
.,
„
»
1 Jan.
10,739
10,885
10,840
10,171
9.435
8,854
7,819
11,009
11,624
11,488
10,768
8,79o 1
1912
19^3
1914
1915
1916
1917
1918
1919
1920
1921
1922
1924
1
1
Per establishment
!59.930
143,088
143.650
121,697
104,179
9!.3i3
107,503
272,251
434.504
697,476
800,237
812,671'
Per worker
employed
1,574.265
1,398,597
1,395,723
943,442
740,074
905,670
1,127,690
5,986,475
9,561,323
12,882,874
14,261,106
13,135,384'
Estimates on the basis of former years.
Reichsarbeitsblatt,
1924: Supplements 29-30, Collective Agreements
in Germany in 1923. According to the information given in the 35th
Supplement to the Reichsarbeitsblatt
of 1 Jan. 1926 the number of collective agreements was on 1 Jan. 1925 7,009 covering 785,945 establishments with 11.9 million persons employed (exclusive of the building
industry). On 1 Jan. 1926, the figures were 7,553 collective agreements,
788,755 establishments and 11.1 million persons employed (40 Sonderheft
zum
Reichsarbeitsblatt).
GERMANY
6l
T h e rather smaller figures for i J a n u a r y 1924 in comparison
with 1922 are due chiefly to the unfavourable effects of inflation and
of the reduction in staffs on the reports of the associations. As regards
t h e smaller n u m b e r of agreements, this is also accounted for b y t h e
progress in the movement of concentration. T a k i n g these circumstances into account, the n u m b e r of collective agreements existing
o n 1 J a n u a r y 1924 may be said to approximate to that at the end
of 1922.
T h e Republic has not yet provided t h e final legislative basis for
the collective agreement. T h e only legislative source is the Decree
of 23 December 1918 \
Subsection 1 of. section 1 of the Decree defined .as a collective
agreement a written agreement between association of workers and
individual employers or associations of employers whereby conditions
for the conclusion of labour contracts are regulated. I t is seen that
an association of employers is not essential here a n d that an individual
employer may conclude a collective agreement (shop or firm
a g r e e m e n t ) . On the workers' side, however, an association must
exist. T h e question now is the relationship between such a n
association and the trade unions.
According to a decision of the Ministry of Labour of 1 September
1920 2 , the capacity of a workers' association to conclude a collective
agreement depends upon whether it is a trade union proper, in which
employers or their representatives have neither a seat nor a vote.
T h e financial means for promoting t h e u n i o n ' s objects may only be
supplied by members' contributions, not by employers or their
representatives. T h e aims of the organisation must be primarily
industrial, without excluding the possibility of further aims.
The' federation concluding the agreement m u s t therefore consist
either solely of workers or solely of employers. T h u s the so-called
" head " federations (Spitzen-Verbände),
which are not organisations
of workers or employers, but federations of such organisations, cannot
1
The Labour Courts Act of 23 Dec. 1926 contains important rules
of procedure concerning collective agreements and it should be noted
that according to section 93 of the Act a " revision " by the Federal Labour Court may be based on the non-execution or improper execution not
only of a legal provision but also of a provision of a collective agreement
concerning the regulation of the individual labour contracts.
2
Neue Zeitschrift für Arbeitsrecht, 1921, col. 94. Cf. also the decision
of 13 Dec. 1920, Reichsarbeitsblatt,
1921, official section, p. 329, and
HUECK : Handbuch des Arbeitsrechts, " Tarifrecht ", p. 28.
62
FREEDOM OF ASSOCIATION
themselves conclude collective agreements, unless authorised b y an
association with the above-mentioned capacity V But if the
associations consist of workers or of employers alone, then their
membership numbers do not matter, provided only the association
is i n d e p e n d e n t 2 . F o r this reason the non-militant associations belonging to the National Federation of German T r a d e Unions a n d to
the G e r m a n Association of National W o r k e r s ' Unions are not regarded
as capable of concluding collective agreements, as they do not supply
the necessary guarantee of independence \
F o r a similar reason a n association of workers established at t h e
instigation of the employer of an establishment was declared to lack
the capacity for concluding a collective agreement 4 .
T h e character of an industrial association is frequently denied t o
the Communist Union of H a n d and Brain Workers because it is a
political rather t h a n an industrial association 5 .
F u r t h e r , the organisation must be authorised by t h e rules, by
some other basis agreement or by a resolution of its members to
conclude collective agreements 6 ; or it may, however, suffice if
this can be merely implied from the general objects 7 . I n these
circumstances the power of the guilds, both voluntary a n d compulsory, to conclude collective agreements is generally accepted 8 . I t
1
Decision of the Ministry of Labour of 8 Aug. 1922 in Neue Zeitschrift für Arbeitsrecht, 1922, col. 690.
2
Decision of 24 Jan. 1922 in ibid.
3
Cf. decision of the Ministry of Labour in the
Gewerkschafts-Zeitung,
1925. P- 3444
Decision of the Ministry of Labour of 6 March 1925 in the Reichsarbeitsblatt, 1925, official section, p. 13S.
5
Cf. the decisions cited, above, p. 4, footnote 1.
6
For example, the rules of the German Miners' Association of 1 Jan.
1920, section 2, subsection 1. The rules of the Central Federation of
Christian Building Trades Workers of 1 Jan. 1919, section 3 (b).
7
T h e Federal Supreme Court states in its judgment of 9 Oct. 1925
(Juristische Wochenschrift, 1926, pp. 703 et seq.): " I t must suffice if
the character and nature of the union, either alone or in conjunction
with the full text of the rules, render it clear and beyond all doubt
that . . . the organisation desires and intends to busy itself and take
action in the politics of wage and labour conditions. " Cf. also judgment
of the Supreme Court of 29 Oct. 1926 (Reichsarbeitsblatt,
official section,
1917, PP- 37 et seq.).
8
DERSCH : Kommentar zur Verordnung über des
Schlichtungswesen
vom 10. Dec. 1Ç23, p. 157, and literary references. Judgment of the Kammergericht of 27 March 1925 (771/25). Judgment of the Federal Supreme
Court of 23 March 1926 (Neue Zeitschrift für Arbeitsrecht, 1926, cols. 438
et seq.).
GERMANY
63
is a disputed point whether an association can freely deprive itself
of its capacity to conclude such agreements, whether, for e x a m p l e ,
an employers' association m a y exclude the possibility of concluding
collective agreements by its rules \
I t is evident t h e n that not all trade combinations are " industrial
association of employers and of employed " with capacity to conclude
collective agreements, but that only the employers' a n d workers
federations proper which granted each other mutual recognition in
the agreement of November 1918 and which were afforded legal
recognition in Article 165 of the Constitution, m a y be parties to a
collective agreement and therefore the recognised representatives of
the collective interests of industry.
I n order to show what rights and duties devolve on an organisation from a collective agreement, it seems useful to separate its
content, in accordance with current German theory on the subject,
into a normative side and a side dealing with obligations.
To the normative side belong the conditions of the agreement
capable of forming the substance of an individual contract of employment, such as clauses relating to wages, hours of work, leave, and so
on. On the other hand, the side dealing with obligations only
establishes legal relations between the parties m a k i n g the collective
agreement ; individual contracts of labour are not directly affected
by i t 2 .
•
T h e most vital normative effect of the collective agreement in
law is t h a t laid down in section 1 of the Decree. I t states t h a t
contracts of employment concluded by the persons concerned are
ineffective if they deviate from the collective agreement unless this is
expressly permitted by the agreement or unless the deviation constitutes an alteration in favour of the workers which is not excluded by
the agreement. I n place of the ineffective contract are substituted
automatically the conditions of the collective agreement. I n this way
1
This question has developed practical significance during the last
few years. The Supreme Court has delivered no judgment on it yet.
The Prussian Ministry of Commerce confirmed its effectiveness in its
decision of 15 Dec. 1922 (Reichsarbeitsblatt,
1923, official section, p. 50,
with reference to NIPPERDEY : Recht und Wirtschaft, 1922, p. 716.
JOERGES : Schlichtungswesen,
1926, pp. 21 et seq. and SINZHEIMER, in
a note to the above cited judgment of the Supreme Court (Juristische
Wochenschrift, 1926, p. 704), adduce vital reasons why capacity to conclude collective agreements cannot be renounced.
1
So long as there is no question of an agreement in favour of a third
party (section 328 of the Civil Code).
• 64
FREEDOM OF ASSOCIATION
the will of the contract-concluding organisations is given greater
influence over the fashioning of individual conditions of labour than
the will of the individual. It is the prevailing opinion that these
provisions of the collective agreement, as their name denotes, have the
character of legal rules and the effect of law. T h e legislation
thus contains a recognition of the fact that the trade associations may
control conditions of labour by the power to create by their agreements
law which cannot be altered by the individual contract of employment.
By these provisions the members of the associations which are
parties to the agreement are primarily bound, no matter whether they
remain in the association after the conclusion of the agreement or
leave it. Persons not included in the association can also be subject
to the conditions of the collective agreement, if they conclude
contracts of employment with reference to the collective agreement,
or — and this is the most important case — if the agreement is
declared generally binding. According to section 2 of the Decree, the
Federal Labour Department 1 may declare generally binding collective
agreements which have acquired predominant importance in the
s h a p i n g of conditions of labour in the trade in the area concerned 2 .
T h e significance of this decision lies in the fact that henceforth all
contracts of employment, including those of non-participants in the
collective agreement, in so far as they come within the area and trade
in which the agreement has validity, are compelled to follow the
terms of the collective agreements. T h e authority of the organisation
is thus extended beyond the sphere of a union a n d to persons outside
the association. A s every association of employers and of employed
whose members would be affected by the declaration m a k i n g the
agreement generally binding (section 3 of the Decree) can make
application for it, the organisations have power, by means of the
generally binding agreement, to determine m i n i m u m conditions for
the contracts of employment of unorganised workers too 3 .
1
According to a notification of 1 June 1922 (Reichsarbeitsblatt,
1922,
p. 292), this task has been transferred to the Federal Department for
Labour Supply (Reichsamt für Arbeitsvermittlung)
now the Federal
Labour Administration
(Reichsverwaltung).
2
At the end of June 1924 there were 1,337 generally binding collective
agreements in force ; at the corresponding dates, June 1925, 1,302 ;
June 1926, 1,276 ; and June 1927, 1,406.
3
The employer is guilty of unfair competition if the' does not pay
the rates fixed by the generally binding collective agreements and thereby
undersells his competitors (judgment of the Federal Supreme Court of
12 April 1927, Reichsarbeitsblatt,
1927, official section, p . 346).
GERMANY
65
I t is scarcely necessary to draw special attention to the revolution
which has occurred since the days when section 152 of the Industrial
Code, which confined itself to the declaration that association was
n o longer criminal, held good.
W h i l e the normative provisions of the collective agreement have
the greatest general importance among the clauses of the collective
agreement, the side dealing w i t h obligations affect only the organisations concerned, but affects them far more vitally and sometimes
threatens their existence.
A particular contractual clause deserves special consideration on
account of its practical importance and- close connection with the
present problems of freedom of association, viz. the so-called " closed
shop " clause. T h i s prohibits employers from employing workmen
who do not belong to workers' organisations parties to the collective
agreement, and at the same time prohibits the workers from obtaining
employment with other than members of the participating employers'
organisations. T h e form also occurs in which, although t h e employm e n t of the outsider is not actually prohibited, labour may only be
supplied to the participants in the collective agreement by the labour
e x c h a n g e of the organisations p a r t i e s , to the agreement \
The
validity of such clauses is contested on the ground that compulsory
association would be t h u s sanctioned, while Article 159 of the Federal
Constitution protects, not only the r i g h t of association but likewise
the right to refrain from association 2 .
T h e H i g h Courts, to which the question was submitted, made
the decision dependent upon whether the closed-shop clause was
contrary to public policy and was or was not invalid by virtue of
section 138 of the Civil Code. T h i s was affirmed in one instance
in which it was ascertained that the unorganised worker would have
been prevented by the organisation clause from finding employment
1
For the well-known motives for such regulations, cf. SINZHEIMER in
Juristische Wochenschrift, 1921, pp. 304 et seq. Cf. also his Arbeitsnorvienvertrag, Vol. II, pp. 131 et seq.
2
Thus the theoreticians, who deny validity, viz.: GROH, op. cit., p. 41;
BÜHLER : " Organisationszwang und Tarifvertrag ", in Neue Zeitschrift
für Arbeitsrecht, 1922 ; GAUSS : Juristische Wochenschrift, 1921, p. 521,
etc. For its validity, SINZHEIMER, op. cit.; BIENSFELDT in Neue Zeitschrift für Arbeitsrecht, 1923, cols. 533 et seq.; POTTHOFF in Reichsarbeitsblatt, 1925, unofficial section, pp. 618 et seq.
Freedom of Association
66
FRBEDOM OF ASSOCIATION
and his economic existence consequently destroyed *. I n other cases
the validity of t h e clause w a s upheld '.
T h e r e is no doubt that even with this interpretation the decision
depends in the main upon whether the judge gives prevalence to freedom of association or to t h e freedom of t h e individual to refrain from
association ; there is evidence, however, that during the last few
years the tendency in t h e H i g h Courts is to afford increasing
recognition to collective interests s .
T h e chief remaining obligations contained in the collective
agreement may be comprised under the heading of " obligation to
keep the peace "; t h e y consist in the prohibition of disturbing by
combative means the state of industrial peace attained by the agreement. T h e substance of this obligation aims at securing either that
members abstain from action which is contrary to the agreement or
that they keep to the terms of the agreement. T h e last-named
obligation does not imply a g u a r a n t e e on the part of the association.
T o effect this a special, explicit provision would be required. T h e
obligation merely devolves upon them of influencing their members
with all the means in their power to keep the agreement. If a member
contravenes it, he acts at the same time against his duty as a member.
Such action can always be penalised by the association, i.e. the
members can be obliged to fulfil their membership duties \
T h e obligation to keep the peace therefore denotes a restriction
on the freedom of the associations to strike and lockout guaranteed
on their own part, a n d a n y combative action in contravention of this
obligation leads to all the consequences arising from the breach of a
contract in private law 5 .
1
Judgment of the Federal Supreme Court of 6 April 1923 in R.G.Z.,
104, p . 327.
2
Judgments of the Oberlandesgericht, Dresden, of 1 Feb. 1923 and
of the Supreme Court of 3 May 1924 in Reichsarbeitsblatt,
1925, official
section, pp. 286 et seq.
3
Cf. the judgments on pp. 29 and 84.
* KASKEL : " Zur Lehre vom Tarifbruch ", in Neue Zeitschrift für
Arbeitsrecht, 1922, pp. 397 et seq., according to which the conclusion of
a collective agreement also implied a resolution on the part of the organisation (judgment of the Supreme Court of 9 June 1925, ReichsarbeitsWatt, 1925, official section, pp. 420 et seq.).
5
For further details, vide pp. 84 et seq.
GERMANY
67
T R A D E COMBINATIONS AND A R B I T R A T I O N
T h e arbitration system supplies the necessary complement to the
collective agreement. U n d e r this system an organ is created which
intervenes impartially when the will of two parties alone is insufficient
to effect a settlement, prevents opposing interests from leading to
open conflict, paves the w a y : for, or itself formulates, collective
agreements, and thus by legal procedure, by reconciling opposing
interests, promotes industrial peace. I n common with the system of
collective bargaining the arbitration system is dependent for its
development on the status of the association.
Before the war the arbitration system was practically without
importance ; not until after the war did it receive general legal
recognition through the association a n d the collective a g r e e m e n t l .
Even to-day the arbitration system is not yet finally, only provisionally regulated, first of all by t h e Decree of 23 December 1918,
a n d now under the Decree on arbitration of 30 October 1923, a n d
the Administrative Order of 29 December 1923.
T h e purpose of the G e r m a n system of arbitration is the conclusion
of a collective agreement 2 . T h e Decree (section 3) therefore describes
arbitration as an auxiliary aid in t h e conclusion of collective
agreements ; from this it is clear what a close connection exists
between arbitration law, the law on collective agreements, and the
law on trade combinations.
T h e object of arbitration is to deal with disputes between parties
to a future collective agreement over its terms. T h e disputes may b e
concerned with the normative or with the obligatory side of t h e
contract, and it is immaterial whether it concerns the conclusion
of a new agreement, or a n alteration and addition to an old agreement,
or the validity, status, or abrogation of an existing one.
I t necessarily follows from this definition of the procedure t h a t
1
In 1924 the number of cases brought for arbitration before the
arbitration committees was 16,480, of which 9,460 were settled by an
award. Of these awards, 4,492 were accepted by both parties. The
cases pending before the arbitrators numbered 2,095, of which 1,102 were
settled by awards (according to the Reichsarbeitsblatt,
1925, non-official
section, p . 526, which supplies further figures). In 1925, the number of
cases brought before the arbitration committees was 12,360 ; 7,686 awards
were made, of which 3,177 were accepted. The cases before the arbitrators were 1,058, of which 660 were settled by an award (Neue Zeitschrift
für Arbeitsrecht, 1926, col. 615).
2
Here also works agreements must be ignored.
68
FREEDOM OF ASSOCIATION
a party to arbitration procedure is one with capacity to conclude a
collective agreement, and that this applies primarily, as shown above,
to t h e industrial association of employers a n d of employed, viz. t o
the employers' associations a n d the trade unions -— to trade combinations.
T h e aim of arbitration, " to aid in t h e conclusion of collective
agreements ", must necessarily also determine t h e regulation of t h e
procedure. " Arbitration tribunal " is primarily t h a t provided for
under such agreement. If none is provided or if it fails in its purpose, t h e official organ (the arbitration committee or arbitrator) steps
in.
T h e organisations have a preponderating influence in t h e
appointment of the members of the arbitration boards and in t h e
arbitration boards they are naturally represented in equal numbers.
T h e y m a y call upon t h e arbitration boards to proceed, and the board
must take action, even at t h e request of one of t h e parties only '.
T h e attitude of individual employers a n d workers who would be
affected by t h e collective agreement, moreover, is not relevant. Even
if they conclude independent, individual contracts of work, t h e
associations m a y disregard t h e m a n d appeal to arbitration procedure
in order to conclude a collective a g r e e m e n t 3 .
T h e associations
have, a s t h e Federal Minister of Labour has frequently stated,
" a right of their o w n with regard to collective disputes, independent
of outside approval, to an award containing a proposal for a collective
agreement " \
T h i s right is n o t affected b y t h e question whether
the associations have legal personality in private law or can be parties
to a civil action ; it is an individual right, independent likewise of
the size of t h e association 4 . A general obligation to apply to t h e
boards, on t h e other hand, does not exist. Only in pursuance of
section i of t h e Presidential Decree of i o November 1920, concerning
the closing of works which supply the public with gas, water, and
electricity, must t h e arbitration committee have made an award
before the commencement of a strike or lockout in t h e said works ;
1
Cf. the judgment of the Supreme Court of S July 1924, in Reichsarbeitsblatt, 1924, official section, pp. 359 et seq.; E R D E L , in Schlichtungswesen, 1924, pp. 145 et seq.
s
This results from the nature of the collective agreement as
described. (Decision of the Prussian Minister of Commerce, of 10 March
1923, Schlichtungswesen,
3
1923, p. 92 ; cf. D E R S H , op. cit., p. 171.)
From the decision of the Prussian Minister of Commerce of 10 March
1923.
4
wesen,
Decision of the Prussian Minister of Commerce, in
1923, p . 127 ; cf. D E R S H , op. cit., p . 208.
Schlichtungs-
GERMANY
69
otherwise if incitement to a strike or lockout occurs, or if they
materialise, certain penalties may be enacted. T h e obligation to
apply to arbitration boards before resorting to combative measures,
which exists in numerous rules or cartel agreements of federations
a n d associations, a r e only of importance within the associations themselves.
T h e effect of application by the organisations is to cause the
procedure to be " pending ".
T h e board then proceeds on its own initiative \ T h e evidence
is heard and the dispute is decided upon without regard to the pro-,
posais made b y the parties concerned. But as the purpose is to effect
an agreement between them, their interests must receive every
consideration. If several organisations are participating on one side,
they must not be allowed to prejudice each other's rights. Therefore
i n accordance with the detailed provisions of section 14 of the second
Administrative Order on arbitration procedure, the procedure must be
postponed if one of the several associations in question has appealed
to the arbitration board while negotiations between the remaining
associations are still pending.
According to section 15 of the second Administrative Order, t h e
industrial associations are represented by their statutory agents or
m a y be represented by authorised officers. I t is a point of interest
in this connection that the trade association m a y , b y law, irrespective
of whether it is incorporated or not, be represented by its statutory
agent.
T h e main stage of the procedure is naturally t h e hearing of t h e
parties (section 21, second Administrative O r d e r ) , in which the facts
and nature of the dispute must be explained. T h e primary endeavour
is to effect a voluntary settlement — a collective agreement — t h e
terms of which are determined by .the parties themselves. Only if
this proves impossible must the award be made. T h e latter denotes
at this juncture a proposal for a settlement only, which is not
binding but can b e rejected b y the parties concerned within a definite
period. I n the event of acceptance, the award has the effect of a
written collective agreement (section 51 of the Arbitration Decree).
1
The time allowed is officially fixed. The facts essential to explain
the case are also offically produced, or the parties concerned may be
obliged to produce them,
2
This is not a declaration making a collective agreement generally
binding. In this case the collective agreement is only called into existence bj' the declaration, while in the other case the scope of an already
existing agreement only is extended.
70
FREEDOM OF ASSOCIATION
If, however, the a w a r d is rejected, the procedure must not be
summarily abandoned ; the award can be converted by means of a
binding declaration into a compulsory collective agreement 2 .
By virtue of section 23 of the second Administrative Order, the
binding declaration is normally made on the application of one party.
Only in exceptional cases, when public interests demand it, may t h e
procedure be offically instituted. T h e law only desires to employ
this exercise of State compulsion as a n extreme measure, if none of
the participants make the proposal \ T h e chief requirement is t h a t
the valid award, by giving due weight to the interests of both parties
shall be equitable, a n d t h a t its observance shall be necessary on
economic and social g r o u n d s . T h e arbitrator or the Federal Minister
of I,abour enjoy competency to make the award binding, but these
authorities also must hear the parties once again and endeavour to
effect an agreement before coming to their decision.
A s subsection 3 of section 6 of the Arbitration Decree states, t h e
b i n d i n g declaration is substituted for the acceptance of the award.
therefore the binding award has the effect of being accepted by both
sides, and in this way a compulsory collective contract results which
has similar effect to one concluded voluntarily 2 .
T h e fact should not be overlooked t h a t t h r o u g h this compulsory
procedure the free right of determination of trade organisations is
over-ruled by State regulation of conditions of labour.
The
associations of employers as well as of workers have therefore passed
resolutions condemning such legislation 3.
Experience shows,
however, that only in the minority of cases in which compulsory
procedure was resorted to was the binding declaration actually
made 4 .
1
D E R S H , op. cit.,
pp. 536-537-
- Cf. the decision of the Supreme Court of 25 May 1927 (see p. 40
above) and judgment of the Kammergericht of 12 Nov. 1926 (Reichsarbeitsblatt, 1927, official section, p. 274). It must nevertheless be kept in
mind that while the purely legal consequences of a compulsory collective
contract are actually the same as in the case of a voluntary collective
agreement, the trade union makes a very different use of its influence on
its own members, and all the more so on outsiders when it is a case of
enforcing an agreement which it has accepted than in the case of having
to enforce a compulsory contract which it has itself rejected as unfavourable.
3
Resolution of the twelfth Trades Union Congress (Breslau, 1925),
Protocol, pp. 28 et seq. Business report of the Federation of Employers'
Associations, 1923-1924, pp. 500-511.
4
In 1924 the binding declaration was actually made in 839 cases
GERMANY
71
§ 3. — Trade Disputes
A survey of all the peaceful means for furthering t h e interests
of association m a k e s clear t h e e x t e n t to which t h e possibilities of
reconciling conflicting interests b y peaceful conciliation have been
increased b y t h e legislation of the G e r m a n Republic. I t h a s conferred on the associations of employers a n d of employees m a n y new
rights and obligations. W h e r e a s u n d e r the E m p i r e all their activities
had to find play within the limits a n d rules set u p in general law,
to-day a special law has developed alongside the old law, which has
generally remained unchanged.
T h i s development is still in
full swing, as the hitherto merely provisional regulation of the
collective agreement a n d the arbitration system shows. T h e methods
which organisations employ to fight their own battles have, however,
as will now be shown, remained on t h e whole practically untouched
by this new development in legislation. T h e legal provisions which
apply here, then, do not determine the nature of such methods, which
belong to the class of acts permitted merely because they are not
prohibited by law. These provisions denote merely the limits which
may not be overstepped if the actions of organisations are to remain
within the law.
Before the war the administration of the labour exchanges played
a great part as a weapon on the side of both employer and employed.
T h e agreement of 15 November 1918 resulted in a common control
and joint administration of these exchanges, in order to place t h e m
outside the sphere of disputes. To-day, in pursuance of the L a b o u r
E x c h a n g e Act, the employment office is bound to function impartially a n d without regard to membership in an organisation (subsection 1 of section 40 of the L a b o u r E x c h a n g e A c t ) , and it is forbidden to enquire whether the applicant is a member of a n organisation, to prevent a worker from obtaining a post by blacklisting, or
t o take part in a n y vindictive measures against workers or
employers (subsection 3 of section 4 0 ) . T h e Act t h u s aims at m a k i n g
the labour exchange impartial. T h i s is likewise the aim of section 42,
only, out of 3,559 cases in which application was made for such a
declaration, or in 23.57 per cent of all cases. In 1,070 cases (30,07 per
cent) it was rejected ; 285 applications (8.01 per cent), were withdrawn,
and in 1,365 cases (38.35 per cent) the parties came to an agreement
(Reichsarbeitsblatt,
1925, unofficial section, p. 526). In 1926, 709 of the
3,706 cases of application were settled by binding declarations, 1,127 by
rejection, and 1,080 by agreement of the parties (Neue Zeitschrift für
Arbeitsrecht, 1924, col. 615.)
p
FREEDOM OF ASSOCIATION
which requires the employer and authorises the industrial associations of workers to notify the competent labour exchanges in writing
of the outbreak or termination of a strike or lockout.
Upon
receipt of the notice the employment office must inform the applicants for work of t h e fact of the strike or lockout and only attempt
to find employment for him if this is still demanded.
Similarly,
workers on strike or locked out m a y only be supplied if the employer
has been informed of the strike or lockout beforehand \
I n the same agreement of 15 November 1918 the employers'
organisations further bound themselves to leave the non-militant
unions alone and to refrain from supporting them either directly or
indirectly. I n this way, the workers' associations created by
employers for the employees of their works before t h e war, together
with their welfare institutions, which are supposed to have
weakened the solidarity of the workers, have ceased to play a part
in industrial warfare.
During the worst post-war period of strikes, in the a u t u m n of
1919, the so-called " Technical Relief Society " (l'echnische
Nothilfe)
arose. T h i s is a voluntary association of persons in all classes of
society, who organise relief work during strike periods, especially
in essential industries. This society, which was subsequently further
developed, and placed under the auspices of t h e Ministry of t h e
Interior, was not intended as a strike-breaking weapon, to hit the
strikers in the back, b u t simply to afford the necessary assistance to
the public 2 . While the Christian T r a d e Unions voted in favour of
this institution at their tenth (1920) Congress, on the condition that
the trade unions were to have a preponderant influence, the General
Federation of German T r a d e Unions was opposed to it from the start
and declared its readiness itself to protect the public (resolution of
2 J a n u a r y 1920) \
N o w the Christian T r a d e Unions also are
demanding its dissolution. I n a resolution on 4 J u n e 1925, the
executive committee of the Federation of Christian T r a d e Unions
stated :
In view of the fact that the Technical Relief Society was founded as
a transition organisation in 1919, in a time of great economic revolutionary upheaval, and that fortunately both State and Economic condi1
See KLAUSNER : " Die Stellung des Arbeitsnachweises im Koalitionskampf ", in KASKEL :
Koalitionen.
2
PETERS : " Die technische Nothilfe und ihr Einsatz bei Arbeitskämpfen ", in Neue Zeitschrift für Arbeitsrecht, 1925, cols. 155 et seq.
3
Cf. also the resolution of the twelfth Trades Union Congress (Breslau, 1925), Protocol, p. 23.
GERMANY
73
tions are more stabilised now, the executive committee is of opinion that
the dissolution of the Technical Relief Society is essential, chiefly in the
interests of the furtherance of mutual good-will between employers and
employed *.
T h e sole remaining weapons of the employer to-day are t h e
embargo on workers and the lockout. T h e embargo serves chiefly
as a preparation for the actual conflict and is conducted in the main,
as a " personal embargo on workers ", by means of so-called " black
lists ", containing the names of suspected' workers, which may be
passed from one employer to another. F r e q u e n t l y employed before
the war 2 , they are less used now, especially since, in so far as they
prejudice the right of association of workers, they are declared null
a n d void by virtue of section 2 of Article 159 of the Federal Constitution a n d m a y on occasion lead to the imposition of damages.
T h e " territorial embargo on workers ", in which employers are
recommended not to employ workers from districts in which labour
war has broken out, is chiefly intended to prevent workers from
relieving the strike funds by sending some of their fellow-workers
to other areas.
T h e most effective weapon, however, is t h e lockout. By t h e
stoppage or restriction of production and the consequent dismissal
of a p a r t or whole of the workers, t h e latter are to b e forced to give
in to the wishes of the employers or cease their own belligerent
measures. A distinction m u s t b e m a d e between the total and partial
lockout and the offensive or defensive lockout according to its objects,
a l t h o u g h in certain cases t h e character of t h e lockout cannot b e
definitely ascertained.
T h e chief weapon of the worker is t h e strike, with which every
other belligerent action of his is usually connected. T h e embargo
o n work or the blacklisting of a n employer is intended to prevent
outside workers from accepting employment with certain employers,
a n d with this end in view is advertised in the press or on placards.
I t is employed to support a strike and also as an independent weapon "\
I n the case of a boycott the worker is fighting, not as a producer
1
Zentralblatt der christlichen Gewerkschaften
Deutschlands, 1925,
p. iSi.
2
The black lists of the Mine-Owners' Association have become
especially well known. Cf. MASCHKE : Boykott, Sperre und
Ausperrung,
pp. 192 et seq.
3
For pre-war instances, see W E B E R , op. cit., p. 273. The judgment
of the Oberlandesgericht, Cologne, of 3 Aug. 1921 (in KARGERERDMANN, 1921, pp. 27 et seq.) deals with a post-war case.
74
FREEDOM OF ASSOCIATION
b u t as a consumer. I n the pre-war struggles the boycott played an
i m p o r t a n t part, to-day it has little practical significance, a s the
workers' associations are now mostly faced, not by the employer
alone but by his organisation. I t can be an independent weapon
or merely the acccompaniment of a strike \
T h e strike proper (work stoppage) is the joint stoppage of work
by all workers or a g r o u p of workers in one or more works. According
to its extent, as in the case of lockouts, it is called a partial or' total
strike ; according to its objects, a defensive or offensive strike ; b u t
here again, the actual state of affairs is often difficult to decide., T h e
compass of a strike, however, is, in respect of its aims, far wider t h a n
t h a t of a lockout, for its aims are frequently, not only to bring about
a change in the conditions of labour of the worker actually on strike,
b u t , in the capacity of a sympathetic strike, ' to afford moral or real
support to another s t r i k e 2 . T h e strike can even, as repeatedly
occurred in the years following the war, completely abandon the
industrial sphere and can in the capacity of a political strike pursue
more far-reaching political aims. Finally, a strike must be judged
b y its mode of procedure : if it is systematically .planned by an
organisation, it is an organised strike ; if it flares up unsystematically without the control of the organisation, it is a disorderly strike,
a distinction which can be very, important in law \
1
The judgment of the Oberlandesgericht, Karlsruhe, of 9 dec. 1920,
has again affirmed the admissibility of the boycott (Neue Zeitschrift
für Arbeitsrecht, 1927, cols. 248-249).
2
In its judgment of 13 June 1923 (Gewerbe- und
Kaufmannsgertcht,
28, cols. 183 et seq.), the Landgericht, Hamburg, defines the sympathetic
strike as the strike in which non-participating workers stop work in
order to express their sympathy with the demands of the strikers. A
sympathetic strike intensifies the pressure on employers and on the
public.
3
How difficult it sometimes is to ascertain the facts behind a strike
is demonstrated in a judgment of the Landgericht, Bremen, of 9 April
1920 (Reichsarbeitsblatt, 1924, official section, p . 429). It defines a strike
as the stoppage of work jointly agreed upon and organised to some extent
by a number of workers united by the common nature of their work in
order to enforce economic, social, or political claims for the participants
or other workers. It is not necessary that the work stoppage shall be
effected on instructions from the competent organisations and by a regular
resolution on the part of the majority of the workers The joint will of
the workers, which can be demonstrated without any special resolution,
is the decisive factor ; the employer must be opposed by this common
will, not merely by the will of individual workers. Combination for the
attainment of a definite aim presupposes, however, the existence of an
organisation, at all events in so far as there must be persons leading
and acting on behalf of the workers.
GERMANY
75
According to official statistics, labour disputes show the following picture between 1918 a n d 1926 1 :
Number
of disputes
1918
i9*9
1920
1921
1922
1923
1924
1925
1926
773
4.970
8,800
5.223
5.361
2,209
2,012
1,766
365
Very closely related to the strike is the weapon of " ca' canny ";
the workers appear at the shops and even work, b u t intentionally
restrict the output in order to bring pressure to bear 2 .
A s organised warfare, the strike usually proceeds on definite
lines, usually provided for in the rules or agreements of t h e trade
unions 3 . T h e organisation lays down certain rules to be observed
1
Reichsarbeitsblatt
1Ç24, non-official section, p. 366; 1926, p. 566;
1927. P- 267.
2
In the above-cited judgment of the Landgericht, Bremen, the attitude of 150 workers, who appeared in the workshop with most of the
other workers, but who in contradistinction to them refrained from work,
with the intention of inciting them to strike, was defined as an attempt
on the part of some of the workers to influence the others through an
example of ca'canny and thus to induce them to strike. The main difference between ca'canny and a strike is held to be the lack of organisation. The judgment of the Federal Supreme Court of 9 June 1925
(Reichsarbeitsblatt,
1925, official section, pp. 420 et seq.) runs :
" . . . the opinion contained in the decision of the Minister of Labour
of 30 April 1923 (Reichsarbeitsblatt,
official section, p. 530),' that
ca'canny was not a strike, cannot be endorsed. It is even worse than a
strike, for it aims at attaining the results of a strike without prejudicial
consequences to the workers. It cloaks an actual work stoppage in the
garb of loyalty to an agreement in order both to exert pressure on the
employer and to obtain a wage without service rendered ; so that, if the
employer assumes the defensive, it may appear that the workers are the
defenders, not the attackers. Ca'canny is therefore an improper weapon,
a strike in disguise."
3
Cf., e.g., the rules of the Central Federation of Male and Female
Leather Workers (.Zentralverband der Lederarbeiter und
-arbeiterinnen
Deutschlands) of 1 Jan. 1920, sections 4 et seq.; executive regulations
to the rules of the Union of German Bookbinders (Deutscher
Buchbinderverband) of 10 Oct. 1913 ; the rules of the Central Federation of Christian Building Trade Workers (.Zentralverband christlicher
Bauarbeiter
Deutschlands) of i Jan. 1919, strike regulations. In addition, for the
free trade unions, the regulations of 30 Sept. 1922 determined by the
A.D.G.B., the A.F.A., and the A.D.B.B.
76
FREEDOM OF ASSOCIATION
during a strike (due notice to the central executive committee, the
approval of the latter, ballot and so' forth). The strike is generally
organised on certain regular lines ; in the locality of the strike a
strike committee is formed which sets up an office and conducts
the strike systematically. The strikers are as strictly controlled as
possible by means of control cards and registration lists, etc., and
pickets are posted at suitable spots, such as the entrance to work
premises and railway stations. A successful issue is finally secured
as far as possible by adopting a series of tactics which may vary as
the case demands. All these tactics conform more or less to precedent, and have thus been embodied in the rules or other union
regulations. Some jurists see in these rules the beginnings of a new
special law1. Examination of the'legal provisions concerning labour
conflicts should cover all forms of industrial warfare. Nevertheless,
the strike and the lockout will be mainly dealt with here, bearing in
mind the increased significance they have acquired in Germany over
other forms of such warfare.
Whereas before 1918 the strike and the lockout were only permissible, according to section 152 of the Industrial Code, for industrial
workers and employers, the freedom to strike was conceded to all
by the abrogation of the Decrees against association contained in the
declaration of 12 November 1918 of the People's Commissioners. On
the other hand, no alteration was made in the former legal position
whereby the freedom to strike and lockout existed only as a part of
the general freedom of mankind, but not as an expressly recognised
right to strike or lockout. Even now, the right to strike or lockout
is not put among the fundamental rights recognised by the Constitution. Article 159 grants to everyone and for all occupations " freedom of association " 2 ( V ereinigungsfreiheit).
The expression
" freedom of combination " (Koalitionsfreiheit)
was purposely
avoided in the Constitution, for it was agreed that this conception
included the right to strike and that even the appearance of wishing
to grant in the Constitution a right to strike for all persons and all
occupations must be avoided \
1
KASKBT, : Arbeitsrecht, Part V, Chap. IV, " Arbeitskärapfe ",
pp. 300 et seq.
- See note, p. 1, on the impossibility of finding terms in English
to give the distinction between " Vereinigungsfreineit " and " Koalitionsfreiheit ".
3
ANSCHÜTZ : Kommentar zur Reichsverfassung, note 3 to Article 159.
GERMANY
77
T h e Constitution therefore only guaranteed general freedom of
association, the freedom to strike was neither strengthened nor
weakened '.
T h e fact must not be overlooked, on t h e other hand, that notwithstanding these fundamental rules of law there are certain legal
provisions which g r a n t some measure of recognition t o t h e r i g h t of
industrial warfare, or, at least, to t h e solidarity which finds expression
in a strike. T h u s , subsection I I I of section 13 of t h e Act of 22 October
1920 ' concerning t h e employment of m e n badly disabled i n t h e war
lays down that such m e n , w h o have been dismissed at a m o m e n t ' s
notice merely b y reason of a strike or lockout, must be reinstated
immediately on termination of t h e strike or lockout. Recognition is
thus granted, if only to badly disabled m e n , to t h e fact that they
must suffer no harm from actions arising solely from their professional
obligations of solidarity \
I t was pointed out in t h e historical part of this study how greatly
restricted t h e right to take combative action was in t h e former G e r m a n
Empire by t h e application of t h e criminal a n d t h e administrative law
by t h e Government and t h e courts. To-day, t h e social as well as
the legal position enjoyed by trade unions a n d federations renders
the suppression of their activities impossible, for they have become,
as was shown, a part of t h e State ; b u t their right to take combative
action is not unrestricted 4 .
T h e prevailing view of jurists and of t h e courts to-day is that
civil servants, to whom t h e Constitution expressly guarantees t h e
r i g h t of association, have not a right to strike. T h e justification for
this prohibition is based on t h e legal position of officials, which differs
from that of workers a n d employees 5 .
1
The prevailing opinion. Cf. KASKEL : Arbeitsrecht, p. 316.
Reichsgesetzblatt,
p. 1787 (wording of the Order of 12 Jan. 1923).
Order of administration of 2 Feb. 1924 (Reichsgesetzblatt,
p . 73).
3
The detailed interpretation of this regulation is much disputed ;
2
cf. P R I E B E , in Schlichtungswesen,
4
1925, p p . 166 et seq.
This is not in opposition to paragraph 2 in Article 159 of the Constitution, in which agreements and measures tending to restrict freedom
of association are declared contrary to law, for only freedom of association,
not the right to strike, is protected.
5
For the theory of this, cf. GROH, op. cit., pp. 70 et seq. ; and on the
other hand RENDIX : Das Streikrecht der Beamten, Berlin, 1923, who
distinguishes between officials with prerogative rights and those without,
and wishes to permit the latter the " right to strike ". For jurisdiction
in this connection, cf. judgment of the Supreme Court of 10 Oct. 1922
and 30 Oct. 1922, in R.G.St., 56, pp. 412 et seq., 419 et seq., and of
17 March 1925 in Neue Zeitschrift für Arbeitsrecht, cols. 471 et seq.
78
FREEDOM OF ASSOCIATION
I n G e r m a n y t h e employees of t h e Post Office are usually civil
servants, and this status is generally also conceded to employees in
the F e d e r a l Railway Company. W h e n t h e railways were still in the
h a n d s of the Federal Government, the President had, by a Decree
of i F e b r u a r y 1922, based on Article 48 of t h e Constitution, forbidden t h e railway officials, under threat of penalty, to stop work on
t h e occasion of a railway strike which had — without t h e consent of
the head federations however — been started by the German Union
of Railway Officials and Probationary Officials
{Reichsgewerkschaft
deutscher Eisenbahnbeamter
und Anwärter) ; on 5 F e b r u a r y 1922,
however, the Decree was rescinded as a result of a proclamation to
resume work issued jointly by the head federations on 4 F e b r u a r y .
Sailors on t h e high seas are also prohibited from striking l .
I n this connection the question m a y also arise as to whether
emergency workers, i.e. unemployed to whom work is assigned in
accordance with t h e provisions on productive unemployment aid,
enjoy the right to strike. T h e reply to this question may depend
upon whether they are to be considered as wage earners or unemployed
receiving public assistance 2 .
T h e m a n y work stoppages during the year 1919-1920 caused t h e
State to assure as far as possible uninterrupted working of essential
industries of public utility, or at all events to restrict the free conduct
in them of strikes and lockouts. T h e Decree of 10 November 1920
of the President, based on Article 48 of the Constitution, declares
strikes a n d lockouts in works which supply t h e public w i t h gas,
water, a n d electricity to be inadmissible and punisnable unless
arbitration has been resorted to beforehand, and empowers the
1
Judgment of the Supreme Court of 3 April 1924, in Juristische
Wochenschrift, 1925, p . 482.
2
" The employment of the emergency worker constitutes no contract
of labour, but is a form of unemployment relief. His work is the service
rendered for the support he receives. If he refuses the work or carries
it out in a manner equivalent to refusal, he must be deprived of the
support " (Regulation of the Ministry of Labour on Public Emergency
Work of 17 Nov. 1923, in Reichsgesetzblatt,
1923, Part I, •p. i n ) . According to the Regulations dated 30 April 1925 {Reichsarbeitsblatt
1925,
official section, p. 177), section 9, " the employment of unemployed on
emergency work. . . is a form of unemployment relief, but counts as
employment against remuneration within the meaning of State insurance
and as a state of employment within the meaning of the Income Tax
Act ". Cf. also letter of the Minister of Labour of 9 Feb. 1927 {Reichsarbeitsblatt, official section, 1927, p. 4).
79
GERMANY
Minister of the Interior to take all appropriate measures for supplying
the public or carrying on the works \
As against this, the Federal Committee of the General Federation
of German Trade Unions passed a resolution at its Congress in December IQ20 in which objection was raised to an even temporary
abrogation of the right to strike, the rescinding of the Decree was
demanded, and a protest made against its maintenance and
replacement by Compulsory Arbitration Act. The standpoint was
taken up that strikes must be avoided, not by prohibitions, but only
by agreement with the trade union organisations. On the other
hand, an appeal was made to workers and salaried employees in
essential industries not to join in disorderly strikes, but always to
permit their interests to be represented by their organisations 2 .
Apart from these restrictions affecting certain categories of
workers or works, general law provides general limits to the exercise
of the right to strike. Their effect varies according as it is a question
of restrictions under public or private law. In the first case, contravention is usually punishable, in the second the effects may vary,
but there can be no question of public penalties.
The limitations of public law consist either in provisions of
administrative law (verwaltungsrechtlich) or in those of the general
Penal Code.
There are the police regulations in pursuance of subsection io,
section 360 of the Federal Penal Code, whereby the police may issue
regulations for the maintenance of safety, comfort, sanitation and
order in the public wayfares. By virtue of this empowering Act
police orders were issued, the contents of which were to the effect
that : " whoever does not meet the requests of the police officials
for the maintenance of security, etc., will be punished. " Before
the war these regulations frequently offered a pretext to proceed
against strike pickets who did not meet the requests of the police to
move on ; but strike picketing proper was not, before the war, and
is still not punishable, unless its methods violate the law. The fact
of a picket patrolling the street is not an offence 3. Individual strike
actions have been treated as a gross disorder (grober Unfug) under
1
The Decree was confirmed by resolution of the Reichstag ; cf. als»
Hii.B : '' Streik in gemeinnötigen Betrieben ", in KASKEL : Koalitionen,
2
A.D.G.B. : Bericht des Bundesvorstandes an den Kongress in Leipzig, p. 20. Berlin, 1922.
3
NESTRIEPKE, op. cit.,
et seq.
pp. 58 et seq.,
and WEBER, op. cit.,
pp.
45
80
FREEDOM OF ASSOCIATION
subsection n , section 360 of the Penal Code. According to the
decision of the Supreme Court, however, this last condition is not
fulfilled if single strikers stand at different points in a street and
thereby perhaps frighten persons willing to work into t h i n k i n g they
may be harmed later on. I t is necessary for some act to occur which
results in the immediate disturbance or endangering of public order.
Such regulations are still possible to-day, for t h e pre-war laws
remain unaltered, b u t they are scarcely ever employed \
Legislation is still the same as before the war as regards the
general penal law also, b u t it plays a far less important p a r t 2 . Since
freedom of association has received legal recognition and the unions
have been incorporated in the State, public law can no longer supply
a means to stifle the idea of association, but " an act punishable by
existing criminal law is not free from penalty because it constitutes
the means of furthering the aims of association ". T h i s principle
n a t u r a l l y still holds good to-day 3 .
Employers and employed must, while carrying on trade disputes,
pay the same attention to the terms of criminal law as all other
citizens, even if they expressly enjoy freedom of association. T h e y
certainly r u n a greater risk of overstepping the boundaries, a n d it
depends on the sense of responsibility of the leaders of the trade
disputes whether the participants keep strictly within the limits of
t h e law, b u t it depends n o less upon whether t h e courts give a wider
or narrower interpretation of the law.
Criminal responsibility does not, according to the principles of
criminal law, affect the association proper, b u t the individual who
has committed an offence, either as sole offender or accomplice, as
instigator, assistant, or abettor. I n connection with trade disputes
t h e criminal courts used before 1914 to take into consideration the
facts of insult (section 185 of the Penal Code), coercion (section
240), threat (section 241), extortion (section 253), deprivation of
liberty (section 239), breach of domestic peace (section 123), and
breach of the public peace (section 125); and in connection with
criminal acts against t h e authorities, the facts of resistance to the
Government (section 113 of the Penal Code), coercion of officials
(section 114), and so forth. T h e interpretation placed by the Supreme
1
An instance is mentioned in Soziale Praxis, 1925, cols. 130 et seq.
That the special offence of combination of section 153 of the Industrial Code has been abolished since 1918 is mentioned on p. 12 above.
3
From the judgment of the Federal Supreme Court, in R.G.St.,
.34. P- 1292
GERMANY
Si
Court on the section dealing with extortion (section 253) deserves
special attention. T h e section r u n s :
Anyone who, in order to procure for himself or another an unlawful
pecuniary benefit, compels another by violence or threats to an act,
suffrance, or omission shall be guilty of extortion and liable to imprisonment of not less than one month. The attempt is punishable.
T h e Supreme Court regarded as an " unlawful pecuniary benefit "
any benefit not resting on a lawfully founded claim. As the worker
has n o claim to higher wages, shorter hours of work or such like,
the practice arose of punishing for extortion anyone m a k i n g such
claims on the employer and simultaneously threatening to strike.
This interpretation, which was as a matter of fact fairly unanimously
rejected by jurists, m a y now be regarded as abandoned \
Although
the Supreme Court, in 1920, having regard to the precedents established by its previous decisions, confirmed a judgment for extortion,
this was a case with special features, as payment for strike hours
was unjustifiably demanded, a n d it was simultaneously threatened
to intensify a strike already in progress by extending it to the emergency workers (i.e. the workers who were carrying on the essential
work) 2 .
T h e courts are still severe towards civil servants, for whom freedom to strike is not recognised. Quite apart from the fact that civil
servants incur liability under disciplinary regulations, the temporary
1
KASKEL : Arbeitsrecht, pp. 328 et seq., even assumes that custom
has altered the law in this respect. In a civil judgment of 4 July 1924,
the Landgericht, Cologne, expressly declared that a threat of stoppage
of work could not be considered as criminal extortion. For if extortion
is to exist, if there is not already any legal claim to the " extorted " pecuniary advantage, it would follow logically and on principle that every
" strike for better wages would imply forthwith an act of extortion, an
assumption both doubtful and incompatible with the spirit of modern
legislation and especially with the Constitution " (Neue Zeitschrift für
Arbeitsrecht, 1925, cols. 182 et seq.).
2
Gewerbearchiv, 1921, p. 521. The High Court (decision of 9 Jan.
1924, in Reichsarbeitsblàtt,
1924, official section, p. 353) declared a worker
who had incited some unemployed to ignore an order of the magistracy
to clear snow punishable for inciting to disobedience against the law
(section n o of the Penal Code). Cf. also the judgment of the Oberlandesgericht, Dresden, of 10 Nov. 1920 concerning compulsion (Gewerbearchi-v,
1921, p. 526), judgment of the Oberlandesgericht, Hamburg, of 16 Feb.
1923 (Neue .Zeitschrift für Arbeitsrecht,
1923, col. 461). In its civil
judgment of 6 Feb. 1925, the High Court, in a case of persons willing to
work prevented from entering the shops by pickets, assumed compulsion
by virtue of section 240 of the Penal Code (SchlichUtv.gs-jaesen, 1925,
pp. 72 et seq.).
Freedom of Association
82
FREEDOM OF. ASSOCIATION
officials of a Prussian municipality w h o jointly petitioned t h e
mayoralty, under threat of strike, to u n d e r t a k e certain official acts,
were sentenced under ordinary criminal law for exercising coercion
on officials (section 114 of t h e P e n a l Code) 1 .
Some railway officials (trade union leaders) w h o , a t the time
w h e n the railways were still being r u n by t h e Government, on the
occasion of a strike of railway workers called on their colleagues by
m e a n s of pamphlets and a public meeting, in opposition to the declaration of the president of a railway directorate, to refrain from doing
" strike work ", i.e. from carrying on the work of strikers, were
sentenced for inciting to disobedience against the law (section n o
of the Penal Code) 2 . F o r " whoever enters the public service as
an official must realise that he must serve the common weal and that
he may follow the dictates of class feeling only in so far as it does
not clash with the higher duties of this common weal " 3 .
If a crew threatens t o strike while on the high seas, this can be
considered coercion (sections 103 a n d 105 of the Seamen's Order) 4 .
W h i l e public law has become less important, private law has
become more so to-day in the sphere of industrial warfare 5 . T h e
provisions concerning contracts a n d unlawful acts in particular set
the legal limits to trade union activities. By reason of the opposition
existing between the individualistic a n d the collectivist outlook in this
sphere, in which the rights of the individual play the predominant
part, m a n y difficulties still arise.
A distinction must be drawn in the law of contract between the
effect of a labour conflict on individual a n d on collective labour
agreements.
A s far as the first of these cases is concerned, present private
law does not take account of the fact that the strike, as a weapon
of association, represents t h e action of an organised majority, b u t
1
R.G.St., 55, pp. 37 et seq.
Judgment of the Supreme Court of 17 March 1925 (R.G.St., 59,
p. 149). On the other hand, MANNHEIM : " Das Streikbrecherurteil
des Reichsgerichts " in Arbeitsrecht X I I , No. 9, cols. 677 et seq. ; RICHTER : " Beamtentreue und Streikarbeit ", in Juristische
Wochenschrift,
I
925, PP- 182 et seq.
3
R.G.St., op. cit.
4
Judgment of the Supreme Court of 3 April 1924. in Juristische
Wochenschrift,
1925, p. 482.
5
Waldemar ZIMMERMANN (in Soziale Praxis, 1923, pp 403-404 and
885 ; 1924, pp. 155 et seq., etc.) attributes this to the close unity of employers in their associations, which strive for the fundamental and final
settlement of the conflicts.
2
GERMANY
83
only of t h e fact that it is carried into effect by a stoppage of work on
the part of numbers of individual workers \ If this stoppage of work
occurs by reason of notice given a n d after t h e expiry of t h e full term
of notice, no legal consequences arise other than those resultant on
notice, for t h e strike is lawful '. If, on t h e other hand, work is
stopped without adhering to legal conditions of notice, t h e contradiction arises that t h e strike, which in public law is not illegal,
is contrary to t h e provisions of private law. T h e labour contract
is broken by t h e strike (under certain conditions even by t h e
incitement to strike) though it is n o t y e t dissolved. T h e breach of
the contract, however, gives special rights to the other party to t h e
agreement. T h e behaviour of t h e worker m a y , by virtue of subsection
3 of section 123, or subsection 3 of section 133 (c) of t h e Industrial
Code, or section 626 of the Civil Code, or subsection 2 of section 72
of t h e Commercial Code, be regarded a s t h e unauthorised abandonm e n t of work or service or as t h e persistent neglect of duty, a n d m a y
t h u s justify instant dismissal 3 . I t is t h e prevalent opinion that it
is almost immaterial whether t h e objects for which the strike is
cpnducted are justified or not, whether it is an industrial, political
or sympathetic strike, whether it is a strike organised by trade unions
•or a disorderly strike 4 . T h a t t h e effects of the illegal strike can be
retrospectively removed after its termination by agreement or award
is evidently n o more a question of legal restriction.
1
Cf. EISNER : Streik und Einzelarbcitsvertrag
; DERSCH : Einwirkung von Streik und Aussperrung auf den Einzelarbeitsvertrag ", in
KASKEL :
2
Koalitionen
;
and KASKEL : Arbeitsrecht,
pp. 320 et seq.
For an instance in which judgment for damages was given notwithstanding proper notice, because the notice was adjudged contra bonos
mores, cf. POTTHOFF : " Sittenwidrige ordnungsmässige Kündigung "
(judgment of the Landgericht, Plauen, 5 May 1923), in
Arbeitsrecht,
XII, cols. 719 et seq.
a
Judgment of the Landgericht, Kottbus, of 5 Jan. 1923 in Arbeitsrecht, X, col. 304 ; likewise of 24 Nov. 1923 in Bl.f.A., 1923, No. 13. For
iurther decisions, see OERTMANN, p . 282, note i, and HUECK : Arbeitsvertragsrecht, p. 205, notes 53 et seq.
4
The Landgericht, Frankfort-on-Main, decided otherwise in its
judgment of 20 March 1923 (Neue .Zeitschrift für Arbeitsrecht, 1924, col.
701) and declared a dismissal without notice unjustified.
Persistent
refusal of service did present an important reason for dismissal by virtue
of section 72 of the Commercial Code, but — and here the court wishes
to grant recognition in private law also to the collectivist idea •— objection could not be taken to the refusal of service of the worker if it arose
through the fulfilment of higher duties. Among such duties the court
places participation in a strike declared by a trade union.
84
FREEPOM O E ASSOCIATION"
If notice is not given, or is withdrawn, t h e worker can demand
no p a y for t h e strike days. If striking involves a breach of contract,
the strikers can actually be sued for a n y damages arising out of their
action.
No liability devolves on t h e strike leaders in respect of breach
of contract on t h e part of t h e strikers they are leading, unless they
themselves commit breaches of contract '.
As regards t h e effects of a strike on t h e working conditions of
non-participants, i.e. of persons willing to work, t h e important point
here is whether they can claim wages from t h e employer if they a r e
prevented from working b y t h e strike t h r o u g h no fault of their o w n .
T h i s point is much disputed by jurists ; a judgment of 6 F e b r u a r y
1923 of t h e Federal Supreme Court denied t h e existence of such a
claim '. Persons willing to work have no direct claim for damages
against t h e strikers. By reason of their duty of solidarity, on t h e
other hand, they cannot be expected, in t h e event of a strike, to
carry on t h e work of t h e strikers in their place. I n each case t h e
reasonable interests of both parties must be taken into consideration,
and regard must be paid to general interests \
I n case of a lockout, due notice is usually given. If it took place
in breach of contract t h e worker can claim wages for t h e period for
which notice should have been given.
Breach of a n individual labour contract in case of a trade dispute
only affects t h e association in so far as such breach touches its o w n
obligations • arising out of a collective a g r e e m e n t 4 . T h e chief
1
Not so in regard to improper action ; see below, p. go.
Neue .Zeitschrift für Arbeitsrecht, 1923, col. 322. As regards this
decision, much disputed in literature, it is wortlry of mention here that
the Supreme Court attempts to base it on the " solidarity' " of the workers.
2
3
K A S K E L : Arbeitsrecht,
p. 74, and OERTMANN, op. cit., p. 118.
In
a case where a striker or locked out worker can support himself by strike
work, he may not receive poor relief, for neither the Poor Law nor t h e
Decree on Unemployment Relief recognise the dut}- of solidarity as a
reason for refusal. The provisions of the Unemployment Relief Act do not
permit the granting of relief in the case of a strike or lockout until at
least four weeks after t h e termination of the labour conflict. Cf. L E H MANN : " Arbeitskampf und Armenunterstützung ", in Soziale Praxis,
1924, col. 488.
4
Cf. KANDELER : " »Streik oder Aussperrung und Tarifvertrag ",
in KASKEL :
Koalitionen-,
and KASKEL :
Arbeitsrecht,
pp. 318 et seq.
The individual worker cannot break the collective agreement, as he is
not himself a party to it (judgment of the Supreme Court of 9 June 1925,
in Juristische Wochenschrift, 1925, p . 2464).
GERMANY
85
obligation affected is that of the trade association t o refrain from
strikes, lockouts, and combative action in general and to influence
their members in a similar direction, i.e. the obligation to keep the
peace. N o t every form of strike and lockout is, however, unconditionally banned, only those directed against t h e collective agreement
itself (thus it is a relative duty to keep peace), nor is a trade union
prohibited from endeavouring to obtain higher wages during the
existence of such agreement, but it may not use the strike as a
weapon 1 ; an attack on conditions of labour fixed by a collective
agreement, such as hours of work, by means of public manifestos
has been regarded as a breach of the collective agreement 2 . T h e
case is different, however, where the agreement in only a frame
agreement b u t does not fix the wages rates 3 .
Breach of the collective agreement produces responsibility and
liability on the part of the organisation. According to sections 276
a n d 278 of the Civil Code, the organisation is responsible for the
action of its executive committee and their appointed agents, thus,
for instance, for any strike order issued by the executive committee.
T h e executive committee must thereby act within the scope of its
representative powers, while it is irrelevant whether such action is
in accordance with its internal duties to the federation.
The
association is not liable if its agent exceeds these representative
powers, if, for instance, a ' trade union official, whose functions
conferred on him by the rules are only those of a treasurer, provokes
a strike. If, however, the organisation is answerable for its agent,
it cannot offer the excuse that it was not concerned in his actions.
T h e r e is a difference, as was already pointed out, between unions
which are incorporated and others. I n the first case, the association
as such has unlimited liability ; in the second its members are liable,
1
Judgment of the Landgericht, Torgau, of 6 Nov. 1922, in Soziale
Praxis, 1923, col. 885.
2
Landgericht I, Berlin, judgment of 31 Oct. 1923, in Soziale Praxis,
1924, col. 407. A political strike certainly does not infringe the collective
agreement ; this is doubtful in regard to the sympathetic strike.
According to OERTMANN (p. 65, with literature and decisions of the courts),
it only infringes the obligation to keep the peace if its aim is to make
the supported strikers inclined and able to return the service in some
future, reversed case. In a doubtful case, however, this must not be
presumed.
3
Judgment of the Supreme Court of 30 March 1926, Neue Zeitschrift
für Arbeitsrecht, 1926, cols. 551 et seq.
86
FREEDOM OF ASSOCIATION
but their liability may be assumed to be confined to their share in the
property of the union. The distinction is therefore but a formal one.
The legal effects of breach of a collective agreement result from
the application of the provisions of the Civil Code relating to contract,
in accordance with which the other party may primarily demand from
the responsible organisation performance of the agreement, or, if
this is impossible, compensation, primarily in the form of specific
restitution. The effects of the combative measure must be removed,
for instance, the summons to a strike or lockout be withdrawn. lithe status quo ante cannot be restored, pecuniary compensation must
be paid ; for instance, workers must be compensated for their wage
losses \ Instead of demanding fulfilment of the agreement, however,
the other party may dissolve it. The pre-requisite condition is that
the breach of agreement shall be serious enough to make it impossible
to expect the party to the agreement to carry it out in good faith,
which is usually the case with a strike or lockout. Instead of rescission of the agreement, damages for non-fulfilment may be demanded.
The extent of the damages is determined by whether, apart from
the organisation, its members also have independent claims arising
out of the agreement. In this case compensation is due both to the
association and to the individual members ; for instance, in the case
of an illegal lockout, damages to the trade union for benefits paid
out and to the workers for wage losses.
If the organisation is an unincorporated union, subsection 2 of
section 54 of the Civil Code lays down that the members of its
executive committee who have concluded the agreement personally
share the liability.
In order to obtain security against future breaches of agreement,
action for an injunction (Unterlassungsklage) is sometimes taken,
the object of which is a verdict which will prohibit future breaches
of contract under threat of punishment.
Acts done during labour conflicts can also be illegal according
to private law if the condition of a tort as defined in section 823
et seq. of the Civil Code is fulfilled. Such cases, occur frequently
in practice. The fundamental provisions are contained in sections 823
and 826 of the Code, which provide that the act must not violate
certain rights (subsection 1 of section 823) nor contravene a legal
1
HUECK : Tarifrecht, pp. 97 et seq.
87
GERMANY
provision, intended for the protection of one or several persons
(subsection 2 of section 823), nor be contra bonos mores (section 826).
I t is of course possible t h a t a n act may contravene several
regulations simultaneously. T h e rights protected in subsection 1
of section 823 are primarily those of freedom, life, possession a n d
property, and strikers who violate these rights, either in regard to
the employer or those willing to work, incur liability. Strike terrorisation renders strike action illegal 1 . Section 823, moreover, g r a n t s
protection to certain rights other t h a n these enumerated. T h u s the
courts have protected the right to carry on an established trade and
industry 2 . Strike pickets r u n particular danger of violating this r i g h t .
T h e y act unlawfully in regard to the employer in the sense of subsection 1 of section 823 if they a t t e m p t to prevent other persons, especially persons willing to work, from entering the work premises 3 .
T h u s the moré t h a n temporary occupation of the entrances to workshops, in order to keep out those w h o wish and are under a duty to
work there, is a contravention of the above provisions 4 . Still more
inadmissible is the action of a strike committee in directing pickets
to demand a pass from persons wishing to enter the premises w h e r e
the strike is occurring 5 !
According to subsection 2 of section 823 of the Civil Code, all
acts which contravene the criminal laws are also offences in private
law. As most of the legal property protected in subsection 1 of
. section 823 is also protected under the Penal Code, most of the acts
which contravene subsection 1 are likewise unlawful under subsection 2. P a r a g r a p h 2 of Article 159 of the Constitution is also a
protective law in t h e sense of subsection 2 of section 823, a n d there-
1
Judgment of the Kammergericht of 11 Oct. 1922, in G.K.G., 28,
cols. 75-76 ; judgment, undated, in ibid., 28, cols. 16 et seq.; judgment
of the Gewerbegericht, Bremen, of 7 July 1922, in G.K.G., 28, cols. 44
et seq.
2
Commentary by the Bench of the Supreme Court on the Civil Code,
section 823, note 9.
3
Cf. e.g., from the numerous decisions on the subject, the judgment
of the Oberlandesgericht, Frankfort-on-Main, of 20 Oct 1921, in Juristische
Wochenschrift, 1922, p. 307, No. 1 ; judgment of the Landgericht, Limburg,
of 26 Jan.
4
1921,
in K A R G E R - E R D M A N N 21, p.
9.
Decision of the Oberlandesgericht, Stuttgart, of 1 Dec. 1922 in
Schlichtungswesen,
1923, pp. 77 et seq.
5
Judgment of the Oberlandesgericht, Dresden, of 16 Feb. 1923, in
Soziale Praxis, 1923, cols. 885, judgment of the Kammergericht of 28 March
1923, in G.K.G., 28, cols. 174 et seq.
88
FREEDOM OF ASSOCIATION
fore a lockout of workers because of membership in an organisation
renders its authors liable for damage by virtue of this subsection ' .
W h e t h e r , on the other h a n d , a strike aimed at compelling the
dismissal of unorganised workers for this reason entails liability for
damages depends upon the interpretation placed upon paragraph 2 of
Article 159, namely, if it is held also to protect the right to refrain
from association z .
I n its judgment of 9 J u l y 1925 t h e Federal Supreme Court decided
that an illegal strike of railway officials which contravened the abovecited Decree of 1 F e b r u a r y 1922 3 justified a passenger in demanding
compensation for damages suffered t h r o u g h the strike 4 .
T h e third case is t h a t in which intentional injury is done to
another in a manner contra bonos mores. But acts resulting in injury
to the other party are not necessarily contra bonos mores, for such
injury is a necessary consequence of t h e dispute, otherwise the
expedients by which the resistance of t h e opponent is to be broken
would remain ineffective.
Similarly, strikes involving breach of
contract are not contra bonos mores, b u t every strike is so if carried
on by improper means. Strike terrorisa tion, which comes within the
m e a n i n g of section 823, is also u n l a w f u l 5 . Cases can be imagined,
however, where measures in themselves unobjectionable are contra
bonos mores b y reason of the effect they produce. F o r such cases
the Federal Supreme Court has laid down certain principles in its
decisions, which formerly referred only to boycotting, but have now
been extended to cover all combative measures. According to these
principles the injury inflicted on the other party must not amount to
economic ruin. T h e damage inflicted must bear a reasonable relation
to the advantage sought. T h e result aimed at must, judged in the
light of circumstances, appear a justifiable aim. Such an aim is
exceeded if the purpose of the strike is to compel the dismissal of
1
This is contested. Cf. judgment of the Supreme Court oí 11 Feb.
1926, Neue Zeitschrift für Arbeitsrecht, 1926, cols. 550 et seq.
2
Cf. judgment of the Landgericht, Torgau, of 8 Jan. 1923 in G.K.G.,
28, cols. 141-142, and of the Landgericht, Hamburg, undated, in KARGERERDMANN, 20, p. 8 ; cf. the preceding judgment of the Oberlandesgericht,
Dresden, of 16 Feb. 1923.
3
Cf. above, p. 78.
4
Neue Zeitschrift für Arbeitsrecht, 1925, col. 747.
5
Judgment of the Oberlandesgericht, Dresden, of 5 March 1921 in
Gewerbearchiv, 1921, pp. 524 et seq.; decision of the Kammergericht,
undated, in G.K.G., 28, cols. 16 et seq.; and judgment of the Landgericht,
Düsseldorf, 9 Oct. 1923, in Soziale Praxis, 1924, cols. 155 et seq.
GERMANY
89
obnoxious, unorganised or differently organised workers '.
Such
action was, however, declared permissible w h e n workers belonging to
the free trade unions enforced the dismissal of the members of a
Communist organisation, for they were actuated by the motive of
self-preservation and it could not be held t o - b e a wrongful act t o
enforce the dismissal of the Communist workers before they themselves should acquire a majority in the works a n d force out the free
trade union members by a similar method 2 .
A half-day strike of electricity workers, which arose in consequence of an appeal by the General Federation of T r a d e U n i o n s
for a protest strike on t h e occasion of t h e murder of R a t h e n a u , was
not regarded as an offence contra bonos mores, although the strike
had serious consequences, for the cutting off of the electric current
caused the tramways to stop r u n n i n g , as the strikers had foreseen 3 .
But unusually serious consequences within the works where the strike
h a d occurred may render the strike an improper one 4 .
T h e determining factor in connection with lockouts is whether
it is only made more difficult for the worker to find work, or w h e t h e r
h e is deprived of opportunity to work for a considerable period o r
altogether 5 . I n these circumstances the resolution of an employers'
association, whereby none of its members might engage a worker
who was still in the service of another member, or was employed b y
him within the last three m o n t h s , was declared not unlawful, for
the restraint of unfair competition in engaging labour was justifiable
from a moral standpoint 6 . Nor was the furnishing of information
b y employers to other employers regarding the dismissal of certain
workers considered illegal, t h o u g h the workers consequently failed
to obtain employment, for legitimate industrial interests were being
1
Judgment of the Kamrnergericht of 9 July 1924, in Juristische Wochenschrift, 1925, p. 269 ; judgment of the Supreme Court of 8 Nov. 1922,
in Neue Zeitschrift für Arbeitsrecht, 1923, cols. 321 et seq.; and judgment
of the Oberlaudesgei ¡cht, Jena, of 6 Jan. 1922, in
Reichsarbeitsblatt,
1924, official section, p. 284. Cf. also commentary of the Supreme Court
Bench on section 826 of the Civil Code.
2
Judgment of the Supreme Court of 3 May 1924 in Juristische Wochenschrift, 1924, p . 1041, No. 4.
3
Judgment of the Oberlandesgericht, Hamburg, of 23 Oct. 1923, in
Schlichtungswesen,
1924, pp. 20 et seq.
4
Landgericht, Torgau, of 6 Nov.- 1922, in Soziale Praxis, 1923, col. 885..
Oberlandesgericht, Hamm, of 4 March 1925, in Neue Zeitschrift für Arbeitsrecht, 1925, col. 356.
5
Commentary of the Federal Supreme Court Bench, op. cit.
6
Decision of the Landgericht, Postdam, of 15 Dec. 1921, in KARGER-
ERDMANN, 1922,
p.
30.
90
FREEDOM OF ASSOCIATION
pursued before which the disadvantage inflicted on the worker, having
regard to the restricted sphere of influence (this was a case of information supplied within an u r b a n a r e a ) , must give way '.
T h e limits within which combative action remain lawful are not
drawn with absolute clarity and precision a n d must therefore depend
upon the discretion a n d knowledge of social condition of the judge
who is called upon to decide.
T h e legal consequences of a tortious act committed in a trade
dispute can be manifold ; a distinction must here be drawn between
the consequences which affect the association and those which affect
the individual. Common to both is liability for damages, the prerequisite conditions for which are unlawful acts committed either
intentionally or negligently ; in t h e case of section 826 of the Civil
Code the act must be committed intentionally, and a direct causal
connection between the injurious act and the damage inflicted 2 . I t
is irrelevant who has suffered the injury, whether the employer, a
person willing to work, or any third party *, even the association
has been declared justified in asserting a claim for damages in case
of collective labour disputes between o r g a n i s a t i o n s 4 .
Several
individuals are jointly and severally responsible in such way that each
is answerable for the entire damage. F o r instance, the members of
a strike committee s , or a works council ' o r a similar body of individuals incur a joint liability.
. T h e possession or non-possession of legal personality in private
law again decides the liability of the association for the acts of its
a g e n t s 7 . T h e extent of the liability devolving on the agent for
which the association is answerable depends, however, upon the
circumstances of the individual case. T h e y are responsible for the
1
Amtsgericht, Urach, judgment of 9 March 1921, in KARGER-ERDMANN, I922, p. 31.
2
The forcible detention of persons willing to work was regarded as
the cause of damage resulting thereby to the establishment. Oberlandesgericht, Dresden, 16 Feb. 1923.
3
The above-cited judgment fo the Supreme Court admitted the claim
for damages of a traveller prejudiced by the railway strike.
4
Undated judgment of the Kammergericht, in G.K.G., 28, cols. 16
et seq.
5
Judgment of the Kammergericht of 28 March 1923, in G.K.G., 28,
cols. 174 et seq.; judgment of the Oberlandesgericht, Dresden, of 16 Feb.
1923, in Soziale Praxis, 1923, col. 885.
8
Judgment of the Supreme Court of 8 Nov. 1922, in Nette Zeitschrift
für Arbeitsrecht, 1923, cols. 321 et seq.; judgment of the Oberlandesgericht, Hamburg, 23 Oct. 1923, in Schlichtungswesen,
1924, pp. 20 et seq.
7
Cf. above, pp. 37 et seq. Also W E I G E R T : " Die ausservertragliche
Haftung der Berufsvereine ", in KASKEL : Koalitionen.
GERMANY
91
selection and superintendence of the strike pickets, but not for every
tortious act of a striker upon whom the management has no influence ;
nevertheless, as the decisions of m a n y of the courts show, t h e liability
can be very extensive \
I t is evident that the liability of the association does not exclude
t h a t of the individual. W h e r e the worker is concerned, however,
action is, for practical reasons, seldom brought against him.
On
the other hand the danger which may be caused to the very existence
of an association by its extensive liability cannot be ignored 2 .
Instead of an action for damages, an application m a y be made
for a n injunction to prohibit acts that will injure the applicant. A n
application may be m a d e for an " interlocutory " (i.e. provisional)
injunction, which will be valid until the final decision in the case
is given, a n d prohibits acts causing injury to t h e applicant pending
the hearing of the case and punishes every contravention by a fine 3 .
T h e individual worker who commits a tort can be dismissed
without notice " ; the member of the works council loses his position
as he contravenes subsections 3 and 6 of section 66 of t h e W o r k s
Councils Act ; a n d the works council as a whole is dissolved in
accordance with section 41 of t h e Act.
All these rights arising from the abuse of freedom of association
can of course be renounced. W h e t h e r action is taken or not depends
greatly, therefore, upon t h e successful or unsuccessful issue of a
labour conflict a n d of the consequent agreements arrived at. T h e
actual balance of power of the " industrial forces " can t h u s exert
a decisive influence on the exercise of rights.
1
Judgment of the Oberlandesgericht, Dresden, of 11 May 1921, in
Juristische Wochenschrift, 1921, p. 1728, No. 1. Judgment of the Landgericht, Stettin, of 14 July 1922, in KARGER-ERDMANN, 1922, p. 56.
2
These considerations led the Committee on Labour Law (Arbeitsrechtsausschuss) to substitute a maximum fine for un limited compensation in the draft of the Act on collective agreements of 1921.
3
Judgment of the Oberlandesgericht, Dresden, of 5 March 1921, in
Gewerbearchiv, 1921, pp. 25 et seq.; of the Oberlandesgericht, Stuttgart,
of 1 Dec. 1922, in Schlichtungswesen,
1923, pp. 77 et seq. The provisional
injunction does not require conclusive proof of the applicants' case, only
prima facie evidence, and the procedure is therefore very summary.
Accordingly, certain dangers may arise. Cf. TREITEL : " Beeinträchtigung des Kampfrechts der Arbeitnehmer durch einstweilige Verfügungen ", in Arbeitsrecht, X I I , cols. 694 et seq.
4
Cf. the case cited in Bl. f. A., 1923, No. 10.
SUMMARY AND CONCLUSIONS
The history of the right of association in Germany shows that,
until the latter half of the nineteenth century, freedom to form
associations, and thus primarily the right of. the worker to fight for
better conditions of labour by stopping work, was not conceded in
the States which form the German Reich of to-day, but that the force
of economic factors compelled the legislatures to abandon this attitude.
In the subsequent historical period, which corresponds approximately
with the period of the German Empire, the Decrees against association were abrogated and freedom of association was granted, but
the association had no status in the courts of law. It was tolerated
— though sometimes not even this — by the law, but not recognised.
The law rather protected the freedom of the individual against the
association. Again, however, economic factors proved more powerful
than the rules laid down by legislation, the trade unions grew,
extended their organisations throughout the Reich and created a
sphere for themselves outside the law ; until finally the German
Republic and its Constitution conceded freedom of association to all.
The trade unions were recognised, they were called upon to cooperate in the life of the State, their aims were furthered. But the
recognition of associations then gave rise to fresh problems.
In the first place, the constitutional recognition of freedom of
association formed the subject of disputes. They were concerned
with the limitation of the legal status now possessed by trade combinations and affected the relationship, of the association to the
individual in two ways : the attitude of the union to the non-member
was expressed in the question whether the Constitution protected,
not only the right of association, but also the right to refrain from
association. The relations between the association and its members
was the problem at the root of the further question whether the old
provisions in section 152 of the Industrial Code were rescinded by
GERMANY ,
93
the Constitution whether — concretely expressed — the relations between association a n d member were legally binding.
T h i s last
question was answered in the affirmative by the Supreme Court of
Germany, but the first question has not yet been decided. I n its
judgment of 6 April 1922 ( R . G . Z . , 104, p p . 327 et seq.), t h e F e d e r a l
Supreme Court stated :
The natural principle of free right of determination recognised by
the law likewise applies to membership of . . . industrial organisations.
Now the fact must not be ignored that this free right of determination
cannot be exercised without friction in social life, but it is affected by
various factors, especially by the conflicting interests of a third party
or of the public, and it can meet with opposition. Even then, however,
the person concerned may freely decide whether he will give heed and
submit to the opposition, or will achieve his object in spite of it and
even of disadvantages incurred.
If the above explanations show that the individual is free to belong
to an organisation or not, it must on the other hand be recognised that
the organisations have a legitimate interest in making themselves as
strong as possible and thus acquiring as great an influence as possible
in industrial wage disputes, and that in pursuing this aim they need not
yield to the opposing interests of a third party but may, as is generally
admitted in cases of conflicting interests, endeavour to obtain the upper
hand. As the fortifying of their position and industrial power makes
the greatest possible increase of their numbers of paramount importance,
they cannot be prevented from endeavouring to achieve this aim by
exercising a certain pressure upon those not prepared to join them and
by taking steps to overcome their opposition. The means employed
must naturally be lawful and must not be contra bonos mores.
T h i s line of t h o u g h t was further developed in t h e j u d g m e n t of
2 July 1925 ( R . G . Z . , 101, p . 199) :
In accordance with its nature and aims, the freedom of association
of the participants in an organisation must comprise the further right
to realise it to its full extent and to secure its effectiveness in law. This
right has come to be recognised as a corollary of freedom of association
granted to the organisation as such. Freedom of association would truly
be imperfect and illusory unless the right of the sum total of participants
to take the necessary measures to achieve the aims of association were
likewise protected.
. . .
Freedom of association to-day is therefore the right of the
individual to associate and the right of the organised body, namely.
of the association, actively to promote its aims. T h e chief emphasis
to-day is laid on the second part of the definition. T h e general legal
status assumed by the association within the German Republic is
therefore quite different, much wider and more powerful, than under
the E m p i r e . On the other hand it has been shown that the foundation,
growth, and dissolution of associations take place under the saine
provisions of civil law as formerly, and that under their influence the
94
FREEDOM OF ASSOCIATION
employers' associations are usually incorporated, those of the workers
unincorporated unions. But the functions exercised to-day by these
associations far exceed the limits of civil right. Two spheres of
action, a wider and a narrower one, have been established. In
accordance with the historical basis, the activities of the trade union,
which are internal functions, concerned with the interests of its
members, were divided from the participation of the union in the
State, but it was possible at the same time to point out that signs
already exist in Germany to-day of a combination of these two functions in the educational institutions created by the co-operation of
the State and the trade unions, institutions which benefit the trade
unions primarily but also the general public. Another sign is the
participation of the trade combinations in State administration in sofar as it deals with public welfare generally.
The main activities of the trade unions lie, however, within that
narrower sphere of action which has been described here as participation in the formation and application of conditions of labour, and
it is this sphere which the legislation of the Republic may be said
to have left entirely to the associations. The relation of the
association to the works council, the collective agreement and the
arbitration system characterise this sphere, the importance of which
is clearly shown by describing it as industrial self-government. In
order to be able to fulfil all these tasks left to the trade combinations
by the law, they must be independent associations, comprising either
employers alone or workers alone. Thus the mixed associations are
deprived of legal recognition as trade combinations, for in the opinion
of the legislature they could not represent without prejudice the
interests of the calling which the union is supposed to embody.
So far, legal recognition of the association is scarcely disputed.
But it has been shown that the representation of industrial interests
can also lead to the development of a mode of activity which has
been described here by the term " trade dispute ". This report shows
that the right of combination conceded in the Federal Constitution,
which is there described with intention only as the freedom of
association (Vereinigungsfreiheit),
is not intended to include the
" right to strike ", and that the trade dispute, although permitted
subject to restrictions and severe limitations, is not actually legally
regulated. Yet in this respect also it is clear that progress is taking
place, and the preliminaries to the formation of a law on strikes are
visible.
GERMANY
95
A uniform law on trade combinations is lacking in Germany ;
though economic and political revolutions have produced new legal
principles in the Constitution concerning trade combinations and
concerning certain branches of its activities (i.e. the collective
agreement), the old law has, with few exceptions, remained in force.
Therefore the rules that form the law on trade combinations are
scattered throughout legislation, and contradictions can easily arise ;
the responsibility for their solution and the further development of
the law lies in Germany to-day thus chiefly in the hands of the judges
and the administrative officials.
In these circumstances the task requiring solution in Germany
in the sphere of trade union law no longer consists in giving an
answer to the question of the right to combine for trade purposes,
of the recognition of these associations, but appears now to be the
mastering of the more technical question of legislation, of how the
law of trade combinations is to be uniformly comprised and regulated
in special legislation defining the limits of the rights and obligations,
privileges, and duties which compose it. Projects exist for the legal
reorganisation of the law dealing with trade combinations as well
as for labour law as a whole. Up to now, however, the execution
of these projects has had to give way to more urgent legislative
tasks.
BIBLIOGRAPHY '
ANSCHÜTZ. Kommentar zur Reichsverfassung.
Berlin, 1921.
BENDIX. Das Streikrecht der Beamten. Berlin-Grunewald, 1922.
VON BO-RSIG. Industrie und Sozialpolitik (Schriften der Vereinigung
der deutschen
Arbeitgeberverbände).
BRAUN. Die Konzentration der Berufsvereine der deutschen
Arbeitgeber und Arbeitnehmer und ihre rechtliche Bedeutung.
Berlin, 1922.
DELIUS. Das öffentliche Vereins- und Versammlungsrecht.
Berlin,
1912.
E R D E L . Arbeitsrecht.
Vol. I, " Kollektives Arbeitsrecht ". Leipzig, 1923.
F I E D L E R . Die Konzentrationsbewegung
der Gewerkschaften. ViennaLeipzig, 1924.
G R O H . Koalitionsrecht.
Mannheim, 1923.
GIESE. Kommentar zur Reichsverfassimg.
Berlin, 1920.
GÜNTHER. Sozialpolitik.
Bd. I, " Theorie des Sozialpolitik ". Berlin-Leipzig, 1922.
H E R K N E E . Die Arbeiterfrage.
Berlin-Leipzig, 7th edit., 1921 ; Sth
edit., 1923.
KANDEI.ER. Die Stellung der ¡serufsverbände im öffentlichen Recht.
KASKEL. Arbeitsrecht, Encyclopedic der Rechts- und
Staatswissenschaften, Vol.. X X X I . Berlin, 1925.
Das neue Arbeitsrecht.
Berlin, 1920.
Koalitionen und Koalitionskampfmittel,
arbeitsrechtliche
Seminarvorträge.
Berlin, 1925.
KESSLER. Arbeitgeberverbände,
Handwörterbuch
der StaatswissenSchäften. 4th edit., Vol. V, pp. 712 et seq.
KULEMANN. Berufsvereine.
3 Vols. Jena, 1908.
LANDMANN. Kommentar zur Gewerbeordnung.
5th edit. Munich
1907.
LEIBROCK. Geschichte, Organisation und Aufgaben der Arbeitgeberverbände. Berlin, 1922.
LOTHAR. Der Arbeitsvertrag.
Leipzig, 1902-1900.
MASCHKE. Boycolt, Sperre und Aussperrung.
Jena, 1911.
MELSBACH. Deutsches Arbeitsrecht.
Berlin, 1923.
1
Further bibliographical references, especially in regard to older works, will be
found in the works mentioned here.
97
GERMANY
NESTRIEPKE. Das Koalitionsrecht in Deutschland (im Auftrag der
Generalkommission der Gewerkschaften Deutschlands bearbeitet). 1914Gewerkschaftsbewegung.
3 Bde. Stuttgart 1921.
OERTMANN. Deutsches Arbeitsvertragsrecht.
Berlin, 1923. .
POTTUOFF. Die Einwirkung der Reichsverjassung
auf das Arbeitsrecht. Leipzig, 1925.
REINDI,. Die deutsche
Gewerkschaftsbewegung.
Altenburg, 1922.
RiTSCHER. Koalitionen und Koalitionsrecht in Deutschland bis zur
Reichsgewerbeordnung.
Berlin-Stuttgart, 1917.
SiNZHEiMER.
Der korporative
Arbeitsnormenvertrag.
Leipzig,
1907-1908.
Grundzüge des Arbeitsrechts.
Jena, 1921.
STIER-SOMLO. Kommentar zur Gewerbeordnung.
2nd edit. Mannheim, 1923.
TATARIN-TARNHEYDEN. Die Berufsstände, ihre Stellung im Staatsrecht und die deutsche Wirtschaftsverfassung.
Berlin, 1922.
W E B E R , A. Der Kampf zwischen Kapital und Arbeit, 3rd-4th edit.,
Tübingen, 1921.
VON W I E S E . Einführung in die Sozialpolitik.
2nd edit., Leipzig,
1921.
WINSCHUH. Betriebsrat oder Gewerkschaft.
Essen, 1922.
WISSELL. Koalitionen und
Koalitionsverbote.
Handwörterbuch
der Staatswissenschaften.
4th edit., Vol. V,
pp. 734 et seq.
ZWING. Geschichte der deutschen
freien Gewerkschaften.
Jena,
1922.
Zur Soziologie
der Gewerkschaftsbewegung.
Jena, 1925.
Geschäftsbericht
der Vereinigung der deutschen Arbeitgeber
verbände.
Handbuch des Arbeitsrechts.
Edited by HUECK. Stuttgart, 1922.
Vol. II, " Arbeitsvertragsrecht ". Vol. III, " Tarifrecht ".
fahrbuch des Arbeitsrechts.
Edited by HOENIGER-SCHULTZ-WEHRLE.
5 Vols. Mannheim, since 1919-1920.
Jahrbuch arbeitsrechtlicher
Entscheidungen.
Edited by KARGERERDMANN. Berlin, since 1920.
Jahrbücher der
Gewerkschaften.
Kommentare zum Betriebsrätegesetz ; Verordnung über den Tarifvertrag vom 23. Dezember içi8 ; Verordnung über das
Schlichtungswesen, etc.
"Freedom of Association
7
ABBREVIATIONS
Arbeitsrecht
Arbeitsrecht, Zeitschrift für das gesamte
Dienstrecht der Arbeiter, Angestellten
und Beamten, herausg. von Potthoff
(Hess, Stuttgart).
Arbeiterrecht und Arbeiterversicherung
Arbeiterrecht und Arbeiterversicherung,
Beilage zur Gewerkschaftszeitung (Organ des Allg. Deutschen Gewerkschaftsbundes) .
B. G. B.
Bürgerliches Gesetzbuch für das Deutsche
Reich.
Bl. f. A.
Blätter für Arbeitsrecht, Beilage zur Arbeitgeberzeitung.
G. K. G.
Gewerbe- und Kaufmannsgericht,
schrift herausg. von B.aum.
KARGER-ERDMANN
Jahrbuch arbeitsrechtlicher Entscheidungen, herausg. von Karger u. Erdmann,
2. Bd. (Berlin).
Karten-Auskunftei
Karten-Auskunftei des Arbeitsrechts, herausg. von Kallee (Hess, Stuttgart).
L. G.
Landgericht.
N. Z. f. A.
Neue Zeitschrift für Arbeitsrecht, herausg.
von Dersch, Kaskel, Sitzler u. Syrup
(Bensheimer, Mannheim).
Reichsarbeitsblatt
Reichsarbeitsblatt, Amtsblatt des Reichsarbeitsministeriums und der Reichsarbeitsverwaltung.
R. G. Bl.
Reichsgesetz blatt.
R. G. St.
Entscheidungen des Reichsgerichts
Strafsachen (amtliche Sammlung).
R. G. Z.
Entscheidungen des Reichsgerichts in Zivilsachen (amtliche Sammlung).
Soziale Praxis
Soziale Praxis und Archiv für Volkswohlfahrt, herausg. von Heyde (Fischer,
Jena).
Zeit-
in
GERMANY
Schlichtungswesen
99
Das Schlichtungswesen, Mitteilungsblatt
der Schlichtungsausschüsse im Deutschen Reiche unter Mitwirkung des
Reichsarbeitsministeriums und der Länder, herausg. von der Vereinigung der
Deutschen Schlichtungsausschüsse (Stöhle u. Friedel, Stuttgart).
APPENDIX
The Saar Territory
The legal position in the Saar, which area, as is well known, was
subjected to special control under the terms of the Treaty of Versailles,
calls for special examination. The development of the right of association
could consequently not follow a similar course to that in Germany. By
virtue of Article 49, Section IV, Part III, of the Peace Treaty, Germany
renounced the government of the Saar in favour of the League of Nations
as trustee, and, in accordance with Chapter 2 of the Appendix to
Section IV, a Governing Commission appointed by the League exercises
all the governmental privileges formerly conceded to the authorised
Governments in the Saar (sections 16 and 19). While most of the laws
and regulations in force in this area on 11 November 1918 have remained
valid, alterations in legislation may only be introduced by the Governing
Commission, which body has to give a hearing to elected representatives
of the population and to have regard to the local workers' organisations
when settling conditions of labour (section 23).
In these circumstances, the basis of freedom of association now ruling
in the Saar is the legislation which existed in the Reich on 11 November
1918, namely, before the proclamation of the People's Commissioners.
Freedom of association is therefore safeguarded by section 152 of the
Industrial Code (section 153 was no longer in force in November 1918),
and therefrom result all the conclusions as drawn above for Germany.
The subsequent federal legislation was ineffective in the Saar.
On the other hand, the Governing Commission made, on 2 May 1923,
the following addition to section 152 :
" (1) Strike picketing in any form whatsoever is prohibited. Offenders will be punished with imprisonment not exceeding one year and a
fine not. exceeding 500 francs.
" (2) Anyone who, by means of physical force, threat or boycott,
attempts :
(a) to induce workers, or employers to participate in agreements of
the kind specified in section 152 or prevent them from withdrawing from such agreements,
(b) to induce workers to stop work or to prevent them from continuing or taking on work,
(c) to induce employers to dismiss workers or to prevent them from
engaging workers,
"will be punished with. imprisonment of not less that one month.
If such action is carried on systematically, imprisonment will be not
less than one year.
" This Order comes into force immediately. "
GERMANY
IOI
In opposition to this state of affairs, the trade unions have, by means
oi numerous resolutions and memorials, demanded the abrogation of
the above Order and the introduction of labour legislation similar to
that established in Germany since 1918 *.
On 15 July 1924, the Governing Commission issued a Decree rescinding that of 2 May 1923 and permitting picketing while aiming only at
preventing abuses. One of several persons may, during a strike or
lockout, be present near the works premises in order to receive or give
information, provided no violence or threats are used, or to persuade a
third party by peaceful means to work or to stop working. It is prohibited to use any kind of violence or intimidation, to damage property,
persistently to follow a person, to prevent him from using his tools,
clothes, etc., or for several persons to beset or follow a person on the
public thoroughfare if public order is thereby disturbed. In addition,
the establishment of a Labour Court, to consist of eighteen representatives
each of employers and employed, was ordered by a Decree of 18 September 1925. The seats are distributed by the Governing Commission
after the opinion of the industrial associations has been heard. The
chief activity of the court is to act in the capacity of an expert : it can
express to the Governing Commission its wishes and opinions concerning the observation of the joint interests of employers and employed,
especially in regard to the amelioration of conditions of labour, social
insurance, and occupational training. Eut drafts of Decrees concerning
such matters must also be submitted to the opinion of the court.
1
Cf. e.g. the memorial of the Christian trade unions, in Soziale
Praxis, 1924, col. 506 ; resolution of the seventeenth general meeting of
the Christian miners concerning the social-political demands for the Saar
area, in Zentralblatt der Christlichen Gewerkschaften, 1924, No. 18.
THE FORMER DUAL MONARCHY
OF AUSTRIA-HUNGARY
PRELIMINARY
NOTE
Since the early history, as well as a large part of the legislation
still in force, is common to all the so-called " Succession States " of
the former Dual Monarchy of Austria-Hungary, these are, for economy
in space, dealt with for all these States in this special study 1. The
sections in which these so-called " Succession States " are dealt with
individually will, therefore, be devoted rather to developments since
the dissolution of the former union, and with the legal position at the
present time.
The Kingdoms and States Represented
in the Imperial Parliament
§ 1. — Historical Survey
EARLY HISTORY
The early history of the movement towards combination within
the Austrian Empire follows, as is natural in view of the close historical and political relations with Germany, very much the same lines
as the movement in that country. In Austria also, in the Middle
Ages, as soon, in fact, as any real division between employers and'
employed began to manifest itself among the producers of goods,
associations of journeymen craftsmen came into being from time to
1
A similar procedure has been adopted already in other publications
of the International Labour Office in regard to the " Succession States ",
notably in that entitled Factory Inspection (Geneva, 1923).
io4
FREEDOM OF ASSOCIATION
time, with the purpose of influencing their conditions of labour.
There was, however, in these movements no more question than in
Germany of combinations in the sense of this study. Further, trades
and occupations being organised in the way characteristic of the Middle
Ages, such associations had nothing like the same importance as in
trade associations of the present day.
This is because the organisation of production in the Middle Ages
was built up on the assumption that employer and employee were
really, in a certain sense, bound together by common interests. The
journeyman could cherish well-founded hopes of becoming one day
a master-worker himself, he was frequently a member of his master's
household, and it was greatly i n the interest of the latter to train up
his assistant to be a worthy member of the tra'de later on, by observing terms of friendly co-operation. The outward and visible sign of
this community of interests was the mediaeval guild, which really did
to a considerable extent care also for the interests of the journeymen
and apprentices. However, the more limited became the prospects
for the journeymen of rising to be a master and the more wages policy
came to be biassed ou the side of the masters, in the same degree did
the actual character of the guilds come to differ from the ideal on
which they were based. This process became stronger in proportion
as the guilds lost their original character, the right of the masters
became transformed into a monopoly held by a politically favoured
middle-class, and the journeymen accordingly lost the assurance of
being partakers in the guild, with their own rights and enjoying
its protection. When this stage was reached, the time was ripe for
the development of independent class-consciousness and for the
organising of self-help.
T H E PROHIBITION OF COMBINATION (1731-1867)
Towards the end of the seventeenth century a new method of
bureaucratic government; or government through the police force,
inspired by the French idea of monarchical absolutism, took form
throughout the whole German Empire and consequently also in the
hereditary Kingdoms and Provinces under the Austrian crown. This
new method of government brought with it a complete alteration of
the old organisation of trades and manufactures, and substituted for
the autonomous guild the authoritative regulation of trade and
industry, and of the terms of employment in these, by the State. By
T H E FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
IO5
this alteration trade association, which had as its object the regulation
of conditions of employment, ceased to be a matter concerning specifically the guild and became a public matter concerning the State.
Whereas it is possible up to that time to speak of a de facto
freedom of trade association (in the sense that the State had not taken
up any attitude of any kind towards such association), at this point
the position was altered, inasmuch as a legal barrier was erected in
the way of freedom for the exercise of influence on working conditions
by association for this purpose through the intervention of the State
in the regulation of conditions of employment. Combinations for
the improvement of working conditions were now no longer directed
simply against the employers ; they were also directed against the
public authorities. The result was that the State soon proceeded, as
in Germany, to take measures against them, by the promulgation of
Decrees absolutely prohibiting any combinations (temporary or permanent) and making them punishable offences.
These prohibitions are particularly set forth in Austria in the
Decrees concerning artisans' licences ,(Handwerkspatente) issued by
the Emperor Charles VI, dated 16 November 1731 and 19-21 June 1732.
The Journeymen's Associations and Fraternities (Gesellenvereine und Bruderschaften), as the employees' societies were called
in Austria at that time, were dissolved. Further, all relations and
meetings of this kind were prohibited under severe penalties. In
order to ensure the actual observance of these prohibitions, the
employers were, moreover, required to report rebellious journeymen
to the authorities, and also not to take into their employment any
journeyman who had committed an offence under the Decree, nor to
provide him with board or lodging. By this means combination
became a punishable offence.
Following on this new conception, combination was included in
the first Penal Code drawn up in Austria, that issued by the Empress
Maria Theresa in 1768, entitled Constitutio criminalis Theresiana,
under the head of "capital felonies ". The Penal Code for the Austrian Empire issued by the Emperor Francis II, 3 September 1803,
according to section 229, punished as a serious offence against the
police regulations the " criminal act of the journeymen-craftsmen,
in forcing from their masters, by means of common refusal to work
or by other means, the concession of a higher daily or weekly wage or
other conditions ".
The historical development described so far refers also, up to the
io6
FREEDOM OF ASSOCIATION
first half of the nineteenth century, to all the hereditary Kingdoms
and Provinces of the Austrian Empire, welded into a single State in
the course of the seventeenth century, i.e. also to Hungary and the
Rumanian and Yugoslavian districts adjoining, as well as to that
Polish territory which had accrued to Austria on the partition of
Poland.
From the middle of the nineteenth century onwards, however,
the force of the absolutist idea behind the prohibition of combination
gradually weakened.
The ideal of liberty, which, similarly to that of absolute monarchy, emanated from France, found forcible expression, half a
century after the great revolution in that country, in the territories
of the Austrian crown, and there also in a revolutionary manner. The
successful movements of the year 1848-1849 brought to the citizens of
Austria and Hungary their first brief experience of individual and
national emancipation.
The withdrawal of the prohibition of combinations was the logical
result of the freedom of association, which was proclaimed as an integral part of the new Constitution. This was the case not only in
Austria (Constitution of 25 April 1848), but also in the Hungarian
portion of the Empire, which had then succeeded in winning a temporary position of national and political independence (Order issued by
the Hungarian Cabinet, 20 April 1848).
This brief period of freedom of combination however was
followed by a period of reaction in all spheres of public life, in
particular by the restoration of the previous position, and thus of the
prohibition of combination, throughout the whole of the territories
of the re-unified Monarchy.
The new Penal Code promulgated by the Emperor Francis
Joseph I, by Imperial Decree of 27 May 1852, (R.G.B1. No. 117)
enlarged the scope of the prohibition, in accordance with the continually increasing industrialisation of manufactures, to cover not only
the " journeymen " to whom it had previously exclusively referred,
but workers of all kinds (section 481). It was further extended to
cover agreements of employers " to bring about alterations in wages
and working conditions ", this also becoming a punishable offence
(section 479).
The prohibition of agreements, as contained in this Criminal
Code of the former Austrian Empire, not only ruled out all temporary
combinations but also any permanent organisations of workers or
T H E FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
I07
employers in the same trade or industry, in so far as such organisations had the object, prohibited in the law, of organised influence on
conditions of labour, particularly the raising of wages. The journeymen's associations which did exist for such a purpose, therefore,
unquestionably came under the prohibition of combination.
This prohibition did not, on the other hand, extend to associations
of employed persons pursuing exclusively such objects as " mutual
improvement " benevolent funds, etc., which had no connection
whatsoever with conditions of labour. Such associations were, however, subject to the general law on association, which in the period of
absolutism was based on the principle of compulsory application for
permits (concession).
No association which had not received from the authorities
explicit permission for its formation could at that time lawfully carry
on any activities. Section 26 of the general Civil Code of 1 June 1811
conferred on all " permitted associations " the legal status of corporate bodies. An association could only, however, be classed as
permitted if it actually held a permit granted by the competent
authorities. Since, however, the granting of permits for the
formation of associations was entirely left to the discretion of these
authorities, it was perfectly easy for them to prevent the formation
of workers' associations. They also made very free use of their
discretion to this end, since, according to the view prevailing at that
time, workers' organisations seemed to be inherently open to suspicion
on political grounds.
The manner in which the competent authorities actually carried
out their duties was extraordinarily strict. The Gutenberg Society,
for instance, which was founded by printers in 1848, was dissolved
only four years later, in 1852, because it " had even dared to enter
into relations with foreign countries ", which relations had, nevertheless, been confined to mutual advances of travelling allowances.
The foundation of a Workers' Educational Association was forbidden
in 1867 on the ground that its solvency could not be considered to be
guaranteed, since its membership did not include the financially stable
. element represented by employers and master craftsmen.
The legal position at the end of this period was then that associations whose aim was exclusively or additionally that of influencing
and/or improving conditions of labour came under the rigid prohibition of combinations, while associations of other kinds were not
subject to any formal prohibition, and if founded by employers were
io8
FREEDOM OF ASSOCIATION
not actually subject to any real restrictions, but if founded by workers
were, simply by the way in which the permit system was worked,
practically bound hand and foot.
FREEDOM OF COMBINATION
Freedom of Association
(1867-1918)
(1867)
The period of political reaction which followed on the first flickerings of liberty in Austria in the 'fifties did not last long. The military
events of 1859 a n d 1866, which had brought to Austria the loss of
the large Italian provinces and her withdrawal from the political
union of many centuries with the German States, caused the Emperor
Francis Joseph in 1867 not only to put an end to centralisation under
the Imperial Government, but also to abandon the system of absolute
rule.
Through the setting-up of the Dual Monarchy, the territories of
the Hungarian throne (Hungary, Transylvania, Croatia, and Slavonia) were converted for governmental purposes into a single State, in
which the development of legislation actually proceeded thenceforward
independently and on different lines from that of Austria, particularly
in regard to the matter of freedom of association and combination
with which we are interested.
In the portion of the Empire which retained the title of Austria,
the Absolute Monarchy was replaced by a Constitutional Monarchy
(Constitution of 24 December 1867). This Constitution legally
guaranteed a certain amount of civil liberties of the kind to which
the name of " fundamental rights " (Grundrechte) had been applied
since the French Revolution.
The concession of the fundamental right of freedom of association
provided the first step towards freedom of combination. Freedom of
association, as secured in the general Act laying down the new Constitution, of 21 December 1867 (R.G.B1., No. 142), and defined in.detail
in the Associations Act (Vereinsgesetz)
of 15 November 1867
(R.G.BL, No. 134), however, did not extend at first beyond the
emancipation of associations in general and consequently of those
which were not contrary to the still unrepealed clauses of the Penal
Code of 1852 prohibiting combination, namely, those whose activities
lay outside the sphere of labour conditions and existed for educational,
economic, and other purposes. Associations of the latter kind were
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
100
now freed from the permit system of the absolutist form of
government. It was no longer necessary for the formation of an
association to be " permitted " ; it was sufficient that the officials
did not " disallow " it. The formation of associations could still be
disallowed on certain definite grounds, particularly if the association
could, in its rules or its constitution, be deemed to be " unlawful or
illegal " (gesetz- oder rechtswidrig) or to " constitute a danger to the
State " (section 6 of Associations Act, 1867). Now it is clear that an
association having aims of the kind defined in the still valid clauses,
sections 479 to 481 of the Penal Code of 1852, must still be banned by
the authorities administering the Associations Act of 1867 ; for these
aims (the exercise of influence on wages and conditions of employment) were still illegal on account of the said clauses, and the formation of associations for these purposes was consequently disallowed.
Freedom of Combination
The really decisive step from freedom of association to freedom
of combination was not taken until three years later in the passing of
the Act concerning the right of combination of 7 April 1870
(R.G.BL, No. 43), which repealed clauses 479-481 of the Penal Code
of 1852, containing the prohibition of combination. Hereby the
principle of freedom of combination was established — i.e. the free
right of employers and workers to organise on a temporary or permanent basis for the purpose of influencing wages and/or working
conditions.
This Act represents an achievement on the part of the workers'
movement, which was then beginning to attain greater importance.
The progressive industrialisation of production had not failed to
produce in Austria its inevitable results : greater concentration or the
workers in factories ; the decay of craftsmanship and therewith of
the prospect for the journeymen of attaining an independent position ;
progressive dependence of the employee on the employer, and the
resulting cleavage between the working and employing classes, i.e. the
development of the class struggle.
The accumulation of capital in the hands of a comparatively small
number of owners conferred on employers economic power such as
would never have been available to the small master-craftsman. As
regards the determination of conditions of employment this ascendancy
as a rule made it possible for the employer to dictate conditions. The
legal freedom of contract, which was constitutionally based on the
HO
FREEDOM OF ASSOCIATION
theory of equality between the two parties to a contract of employment,
was in practice negatived by the economic weakness of the individual worker. A solution of the problem presented by thé contrast
between the facts and the intention of the law was only possible
through the linking-up of the weak individuals into a strong whole,
on the part of the workers. The law, which aimed at the regulation
of conditions of employment on a free contractual basis as between
equal parties, must therefore allow the organisation of the wage earners
on lines which would give them an approximately equal bargaining
power. In the recognition of this fact — that they could not permanently deny to the worker the only means of making use of his legal
liberty to contract for his labour — the Government proceeded to
amend the law relating to combination.
The immediate stimulus to action was provided by a mass
demonstration of workers on 13 December 1869. On this day about
30,000 workers gathered before the Parliament building in Vienna
to put forward the demand for real and complete freedom of combination. A deputation was elected and sent to the Prime Minister, Count
Taaffe, to put this demand before him. Count Taaffe condemned
this mass demonstration as illegal, but allowed the deputation to
present their Memorandum, and promised to lay it before the Cabinet.
That set the stone rolling. No later than 14 December, the Minister
of Justice, Dr. Herbst, brought in a Bill to repeal the three sections
of the Penal Code. The discussions of the plenary session of the
House of Representatives are of great historic interest, in so far as
they show that even then almost all the members of the House who
took part in the debates were in favour of the idea of freedom of
combination, and of the immediate passage into law of.the Bill. The
House of Lords (Herrenhaus) passed the Bill as adopted by the House
of Representatives. On 7 April 1870, it was sanctioned by the
Emperor.
Section 1 of the new Act repealed sections 479, 480, and 481 of
the Penal Code, which contained the prohibition of combination ; by
this means the penalty previously imposed on combination was
removed. Both employers and workers were equally free to make
agreements among themselves (and this on either a permanent or a
temporary basis) " to bring about alterations in wages and other
working conditions ", or " by common refusal to work or by other
methods to enforce the payment of higher wages or to obtain other
conditions ".
/
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
Temporary
Combinations
Section 2 of the Combination Act did, however, limit the freedomof combination granted thereby to this extent, that it denied to the
combinations of the employers " which aimed by the closing of the
works, or the dismissal of the workers, at forcing these to accept wage
reductions or any other less favourable conditions ", as well as to the
combinations of the workers " which aimed by means of common
withdrawal of labour at forcing their employers to grant higher wages
or any other more favourable working conditions ", any effect at law,
and thus any right to sue for breach of the same, although allowing
them to be made with impunity.
This decision applied in any case unmistakably to the temporary
combinations, the purpose of which was the organisation of strikes and
lockouts. These were certainly permitted but did not enjoy any
protection at law. A legally binding character and therewith protection at law were further denied in the aforementioned section to
associations which support those persons who " adhere to tEe aforesaid
combinations " or inflict injury on those persons who " sever their
connection with them ".
Many doubts arose in theory as to the real significance of the
conception " having no legal effect ". The question remained open
as to whether entry into temporary combinations, as defined in the
Combination Act, did not even carry with it an obligatio naturalis.
It has similarly remained a matter for decision in some undetermined
future whether this declaration of absence of legal effect had any
importance in relation to the legal status of permanent combinations.
For while the law stood as it did, doubt would always arise as to
whether the act of joining an association which had as its object
attempts to alter working conditions by means of strikes or lockouts
was of a legally binding character, and also as to whether associations
with objects which were, according to the Combination Act, not
legally binding, ought not to be regarded as illegal in the sense of
section 6 of the Associations Act and the associations themselves,
therefore, ought not to be disallowed. In practice, however, so far
as can be ascertained from the material to hand, this question has
been of no real importance, since neither employers' nor workers'
organisations have included in their rules the objects defined in the
terms employed in section 2 of the Combination Act (strikes and
lockouts).
112
FREEDOM OF ASSOCIATION
In section 3 of the Act there was, however, a direct prohibition,
under penalties; of any hindrance by means of violence or intimidation to the freedom of decision or action of the employer or worker,
through which the conclusion, extension or carrying out of the agreement described in section 2 are to be attained.
Apart from these penal provisions, the restrictive clauses of
the Combination Act were of no real importance in relation to
temporary combinations, since the question of effect or no effect at
law is only of importance in the domain of civil law and does not
affect the lawfulness of these agreements as such—they were no
longer prohibited but tolerated.
Permanent Combinations (Trade
Associations)
In the development of the permanent combinations also, the
restrictive section 2 of the Combination Act did not, as pointed out
above, present any considerable hindrance. Far more trouble arose
for them in practice from the very wide interpretation that was put
on the term " illegal ".which had no connection with the Combination
Act, and still more through the often very objectionable application
of the conception " dangerous to the State ". These interpretations
made it legally possible for the authorities dealing with associations,
particularly in times of political excitement, and very often on
grounds of national policy, to obstruct the formation and the continued
existence of permanent organisations.
Further difficulties for the workers' associations were frequently
provided by the authorities during politically unsettled times in that
they were classed as political associations, and as such made subject
to the requirements of section 33 of the Associations Act of 1887, and
forbidden to form branch associations or central federations or to
establish relations with other associations. Since the Associations Act
contained no definition of what was to be considered a political
association, free play was left to maleficent action on the part of the
authorities.
The legal position of permanent combinations of employers or
employed was thus, after the passing of the Combination Act, the
following : In so far as these combinations pur.sued objects other
than, or additional to, those set forth in section 2 of the Combination
Act, or as they did not expressly declare that they had such objects,
they could be organised with full liberty under the other conditions
T H E FORMKR D U A L MONARCHY OF A U S T R I A - H U N G A R Y
I 13
laid down in the Associations Act, and thus enjoyed the protection
of the Associations Act like any other lawful association. They
enjoyed, inter alia, the right of appeal to the Imperial Court of Justice
— a fundamental right secured under the Constitution — against
illegal procedure on the part of the associations authority
(Vereinsbehörde), on the ground of the breach of the law regarding
associations. They were also in possession of legal personality since
they were now, so far as they complied with the requirements of the
Associations Act, to be regarded as " permitted associations " in the
sense of section 26 of the general Civil Code : that is, they had the
protection of the civil law in regard to their activities.
At this juncture it may be well to note a particular connotation
given in Austrian parlance to the expressions " combination " (Koalition) and " right to combine " (Koalitionsfreiheit).
In the first placethis differs from the connotation in other countries, and, in the second
place, it has continued to influence the terminology in use in the
Succession States.
Koalition : In Austrian parlance this generally means (apart
from the political and economic employment of the word) only the
temporary association of employers or employed persons in an agreement forcibly to alter working conditions. Permanent organisations,
the more so that they usually pursued other additional objects (benefits, education, etc.), were only very seldom described by the expression " combinations " but usually went under the generally accepted
descriptions : " trade association " (Berufsverein),
" employers'
association " (Arbeitgeberverband), " trade union " [Gewerkschaft).
The word Koalition is never used in the text of any Austrian law.
Koalitionsfreiheit in the Austrian sense means, first, the freedom
of the citizen from State interference in the right of forming combinations (opposite : prohibition of combination, or the permit system) ;
in the second sense, it conveys freedom of the individual to join in
such combinations or to refrain from doing so, that is, freedom of combination in contrast to compulsory combination. On the contrary, the use of the expression Koalitionsfreiheit in the sense
of freedom to form employers' or workers' unions, freedom to
belong to these, and freedom of legal and political action for their
unions, is foreign to Austrian parlance. In Austria such a term would
also be both superfluous and misleading, since combinations, in the
Austrian sense of the word, are, as has been pointed out, temporary
agreements between "persons, entered into on a specific occasion and
Freedom of Association
8
IH
FREEDOM OF ASSOCIATION
not leading to the formation of any aggregation of persons capable of
exercising legal personality. The trade associations of employers or
workers come rather under the scope of the Associations Act ; their
recognition as corporate bodies results from the right of association ;
the legal right to carry on their activities is a consequence of freedom
of association.
That the word Koalitionsfreiheit (freedom of combination) is
inapplicable to the compulsory associations under public law, which
play such an important part in Austria, is immediately obvious from
the explanation given above of its connotation.
T H E COMPULSORY CORPORATIONS
(1859-1018)
About ten years before the granting of freedom of association and
combination, an Industrial Code was promulgated by the Imperial
Decree (Kaiserliches Patent) of 20 December 185g (R.G.B1., No. 227),
which proclamed freedom to carry on trade or industry in Austria.
Part VII of this Decree had, at the time of its promulgation, when
the formation of independent trade unions was still ruled out by the
prohibition of combination in the Penal Code of 1852, set up compulsory industrial corporations.
The Gewerbegenossenschaften (literally industrial co-operatives)
were constituted as joint unions of all those engaged in the same or
allied industries or trades in one and the same local district. In virtue
of their participation in the industry or trade, the employers became
automatically members (Mitglieder) and their workmen associates
(Angehörige) of the corporations concerned. The objects of these
Genossenschaften, which must be understood to be compulsory
corporations under public law, and which differed from the former
guilds chiefly in their lack of autonomy, were preservation of esprit
de corps, maintenance and raising of professional standards, furtherance of the personal, economic, and educational interests of their
members.
The basic principle for the formation of these compulsory corporations was the conviction that it was necessary to provide, without
interfering with the guaranteed liberty to carry on trade or industry,
for the protection of the economically weak class of small-scale
industrialists, by means of such special organisation. It was on these
lines that their further development proceeded during the following
half century. For instance, in the most important supplementary
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
II5
enactment to the Industrial Code, that of 1883, particular protection
was offered to the so-called craft trades (handwerksmässige Gewerbe)
by requiring that all candidates for membership must produce
evidence of competence (certificate of apprenticeship, diploma as
journeyman and testimonials covering several years' employment as
assistant workman (Gehilfe)).
A limited amount of co-operation by the assistant workmen
(Gehilfen) as such had been allowed for already in the terms of the
Industrial Code of 1859 (in the Arbitration Court and in the
administration of the benefit funds). Whereas, however, the corporation in its previous form acted as a compulsory organisation of
independent persons carrying on a trade or industry, the supplementary
enactment of 1883 added to this employers' association a compulsory
organisation of employees in the " Workmen's Assembly" (Gehilfenversammlung) . The sphere of activity of the workmen's assemblies comprised the safeguarding and expression of the interests of the
workmen employed in the industry, the appointment of representatives in the Court of Arbitration, sharing in the activities of the
sickness funds, employment bureaux, etc., together with collaboration
in the discussions and decisions of the corporation regarding working
hours, rest intervals, wages and periods of notice. In the scope of
their activities as well as, for instance, in the fact that they collected
membership contributions, the workmen's organisations within
the corporations bore some resemblance to independent workers'
combinations.
The principal quality of a real trade association was nevertheless
lacking owing to the compulsion exercised by the authorities : that
is, they had no freedom of membership. To this extent they failed
from the first to meet with sympathy from the industrial workers
who were striving after the formation of independent trade unions.
At the beginning, therefore, the newly constituted workmen's assemblies and their committees also met with general opposition. Since,
however, the terms of the Associations and Combinations Acts had of
late been applied very harshly by the authorities against the workers,
these latter soon came to the conclusion that there was to be found
within the framework of the corporation system a legally protected
substitute for the trade unions which had been dissolved or were being
so much hampered in their activities. For a considerable period,
therefore, the principal activities of the trade union movement were
transferred to the workmen's assemblies of the industrial corporations,
Il6
FREEDOM OF ASSOCIATION
and they gained there, particularly in the matter of collaboration in
fixing wages, a considerable amount of influence. As soon, however,
as a less severe and more impartial administration of the enactments
regarding associations and combinations made it possible, the elements
striving towards combination united their efforts once more in the
independent organisation of trade unions, which became and remained
thereafter the real pillars of the organised workers' movement in
Austria.
In addition to the general industrial corporations, an important
part was played by the mining corporations, especially in the districts
of Czechoslovakia which are so rich in mineral wealth. These were
set up by the Act of 14 August 1896 (R.G.B1., No. 156). The sphere
of activity allotted to the workers' representatives here was similar
to that given to them in the industrial corporations.
In these compulsory corporations (industrial and mining) there
exists the single instance in the old Austria of organised and permanent
co-operation on the part of employers and workers, outside the small
craft trades.
A further type of compulsory corporation, confined merely to
the employers, is presented by the Chambers of Commerce and of
Industry, which were set up on the basis of the Act of 29 July 1868
(R.G.B1., No. 85) to represent the interests of commerce, manufacture, and industry. They have developed in Austria into an important
factor in the economic life of the country and assured to the employers
a decisive influence in the industrial and commercial policy of the
State. No equivalent representation was offered to the workers until,
in republican Austria, the Chambers for Workers and Salaried
Employees were set up.
§ 2. — The Evolution of Trade Unionism
• •
EMPLOYEES
As elsewhere, trade association on the part of the employers took
place first for economic purposes. But it was only when in the
settlement of wages and working conditions the employers began to
be confronted by the workers in close and effective combinations that
the already existing economic associations of employers began to
adapt themselves to this phenomenon in their further development,
and new employers' associations were formed with Fhe principal aim
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
I 17
of presenting a united front to that of the other party to the contract
of employment.
Among the economic organisations of the employers, the further
development of which depended largely on the exigencies of industrial
warfare, attention must first be paid to the so-called economic associations (Wirtschaftlichen
Vereine). The representation of common
economic interests on the part of these economic associations was
effected either by special societies catering for certain branches of
industry or commerce, or by associations for the furtherance of some
special interest (e.g. determination of policy in regard to special
political measures dealing with commerce or tariffs), or, again, by
so-called " central unions " (Zentralverbände), in which the separate
industrial interests were more subordinated, and whose activities were
not determined by any particular ruling aim, but which existed rather
to represent the general economic interests of large groups of industries. Whatever the nature of these associations, the question of
conditions of employment formed, in the nature of things, an important item in the common interests, since wages and conditions oí
labour exert an extremely strong influence on economic conditions
(possibility and profitableness of production, etc.). Nevertheless
co-operation in fixing conditions of employment plays only a more
subsidiary part in the sphere of activity of these economic associations.
Their principal purpose is always, according to the requirements of
each case, to influence the general policy of the State in regard to
production and other economic matters, and effectively to represent
the economic interests of different branches of trade or industry in
relation to one another.
In the compulsory corporations under the public law (including
the Chambers of Commerce and Industry), as dealt with in the preceding section, in which employers were indeed represented by virtue of
the law, but the very composition of these compulsory bodies
demanded a give-and-take of conflicting interests. In their independent
economic associations, on the contrary, employers could pursue their
aims much more effectively. This is also the reason for the rapid
growth of the independent employers' organisations in the course of
the last twenty or thirty years.
At the same time the employers' associations in the stricter sense,
whose essential purpose was the defence of their interests as against
the workers' organisations, began to gather strength. These organisations, which sometimes grew out of the economic associations
ii8
FREEDOM OF ASSOCIATION
of employers, and were sometimes founded from the outset for this
purpose, were nevertheless in Austria often only variations of the
economic associations themselves, and cannot therefore be classified
purely,and solely as representing the interests of employers as a class.
Employers' organisations of this kind exist in large numbers both in
large-scale industry and mining, and also in small and medium-scale
industry, craft trades and commerce.
The first aggregation of the Austrian employers in a large central
organisation occurred in the foundation of the " Industrial Club " in
1875. In 1893 the Central Union of Austrian Industry (Zentralverband der Industrie Oesterreichs) was founded, consisting of a large
number of branch associations ; this changed its name in 1918 to the
Federal Union (Reichsverband). In 1897 there followed the Federation of Austrian Industrialists {Bund österreichischer Industrieller)
which, in contrast to the Central Union, consisted not of affiliated
associations but of individual members, these being actually for the
most part employers in small and medium-scale industry.
For the purpose of the more effective representation of employers'
interests as such, the aforementioned three organisations joined in
founding a confederation under the title Hauptstelle österreichischer
Arbeitgeberorganisationen
(literally, Central Office of the Austrian
Employers' Associations), which began its career in March 1907. This
Hauptstelle, which, like all other employers' organisations, was
established as an association, in order to comply with the Associations
Act, defined its objects in its rules as under :
The union of all trade or local organisations catering for industrial employers ;
Defence against unjustifiable demands by workers and salaried
employees ;
Protection of the right to work ;
Establishment of mutual institutions for the furtherance of the
interests of the employers in regard to conditions of employment (e.g. employment exchanges, standardisation of contracts of employment, legal protection in matters of principle,
introduction of the strike clause into collective agreements,
etc.).
This careful framing of the rules in their relation to labour
questions was chosen for the purpose of avoiding the risk of their
being found not binding at law under the terms of the Combination
Act of 1870 ; similar drafting will be found in the rules of all other
T H E FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
119
employers' associations, including those in craft trades and commerce.
In this way the form taken by these trade associations was fully in
accordance with the requirements of both the Combination and Association Acts, the restrictive clauses of which (prohibition on account
of political tendencies, etc.) were never put into force against the
employers' organisations in Austria.
The development of the
employers' organisations in Austria proceeded without any let or
hindrance on the part of the authorities.
WORKERS
After the right of association and assembly (1867) and of combination (1870) had been granted, a considerable period had still to
elapse before the liberty statutorily granted actually led to the formation of workers' trade unions on a large scale. The number of union»
founded in the various trades during the 'seventies was small (16) ;
these were mostly of a local character. In the ten years from 1880 to
1889, too, the progress of the trade union movement was slight. The
political feuds inside the party from which the trade union movement
emanated hindered the formation of trade unions on the one hand.
On the other, this was hindered by the action of the authorities, who
made use of section 33 of the Associations Act to block the formation
of branches or central federations by classing trade unions in a
general manner as political associations. This was so much the easier
in that the Act contained no definition of what was meant by a
" political association ", so that the practice of the police and administrative authorities, upheld by the judgments of the courts, enabled a
very wide interpretation to be given to the term. In this manner,
particularly in the polyglot hereditary States of the Austrian crown,
many obstacles were placed in the way of organisation by the Central
Government, since the association of members of the same trade and
of the same nationality easily gave rise to suspicions of nationalist
separatism.
After the radical and moderate elements of the Austrian Labour
Party had been fused into an all-inclusive party at the Congress of
Hainfeld in 1888, the trade union movement also began to see better
days. As early as the second Socialist Party Congress in 1891, a trade
union programme had been formulated, and the formation of a network of trade unions, covering, so far as possible, the whole country,
had been recommended. After this, the so-called trade days (Fachtage)
120
PREEDOM OF ASSOCIATION
or meetings were held for the several trade unions. The first
Trade Union Congress met at Christmas in 1893, 270 delegates
from 194 unions being present. The statistics of -the trade ' union
movement give the total number of unions in 1892 as 385 and the
membership as 31,454.
The rapid advance of the trade union movement which followed
was, however, hampered by a difficulty peculiar to Austria, the
problem of nationality. It is true that the first Trade Union Congress
had already chosen between the federative and centralised systems in
favour of the latter, yet, no later than the second Trade Union Congress, 25-30 December 1896, the Czech delegates demanded the partition of the Trade Union Secretariat into two national divisions. The
rejection of this demand led to the formation on 31 January 1897 of
an independent Czech trade union centre (Odborové sduzeni ceské).
At the time of this first split in the trade union movement on the
grounds of national differences, which was itself a result and accompaniment of the national divisions in the political Labour Party, the
number of unions (central, district and local) amounted to 1,076, with
a membership of 98,669. The Czech Federation consisted, immediately after the split in 1897, of 68 unions, with 5,230 members.
Ten years later, in 1906, the Austrian trade union movement as
a whole consisted of over 4,000 unions, with about 450,000 members.
The Czech unions, which have been included in these totals, are given
as about 1,000 in number, with about 60,000 members \ These ten
years were taken up partly with disputes between the two trade union
centres on Austrian territory, and partly with attempts at co-operation
and reunion. An important rôle was played in these by the International Federation of Trade Unions. In 1904 the efforts towards
reunion seemed well on the way towards success, but collapsed at
the last moment owing to a dispute as to representation on the
Advisory Council of the Office for Labour Statistics. The differences
became more acute than ever, and caused a collision at the International Trade Union Congress at Amsterdam in 1905. The International decided against Prague An extraordinary Austrian Trade
Union Congress, called to deal with the situation, decided by 197,202
votes against 2,304 (30,686 abstentions ; 8,640 absent) in favour
of centralisation. The Central Trade Union Organisation was
1
kého.
STEINER SKATULA
: Deset roku odborovéh.o hnuti ceskoslovans-
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
121
simultaneously supplemented by four representatives of the State
committees (Landeskommissionen) of the greatest national importance
(Bohemia, Moravia, Galicia, and the Littoral).
This solution did not, however, satisfy the Prague movement, and
thenceforward attempts at reunion were finally abandoned.
Apart from the break-away of the Czech trade unions, no weakening of the united front of trade unionism on the grounds of national
differences between the Empire has to be recorded. The workers'
associations in the Polish, Ruthenian, Yugoslav, and Italian districts
of the former Austrian Empire remained within the Central Organisation.
On the other hand, parallel with the development of the movement on political party lines, various other separatist tendencies
manifested themselves, and led to the founding of workers' associations
and unions, partly on a Christian and partly on a national basis,
while the main force, the so-called " free " trade unions, adhered
to the Social-Democratic basis of Marxism and the class struggle.
Political neutrality and the strict limitation of trade unionism to its
narrow industrial objects, as was possible in other countries, remained
entirely foreign to the movement in Austria.
The organisation of wage earners on a " Christian-Social " basis
dates back to the emergence of the Christian-Social People's Party
in Austria, under the leadership of Dr. Karl Lueger, at the end of
the 'nineties. They reject in principle the theory of the class struggle
as upheld by the " free trade unions ", and seek the solution of the
labour problem within the framework of the Christian-Social idea of
the general commonwealth. The Federal Union of Christian Workers' Associations (Reichsverband der christlichen
Arbeitervereine),
founded in 1902, became a fairly strong movement, particularly in
some branches of industry, notably in the small-scale industries.
Thirteen central unions (Zentralverbände), with 27,018 members,
were represented at the first Christian Trade Union Congress in 1907.
This number had increased by 1910 to 46,533. In addition to the
Austrian central organisations, there were 26,230 members of
Czech and 6,136 of Slovenian Christian trade unions.
The nationalist trade union movement in Austria differed from
the Social-Democratic or " free " trade union movement in that it,
again rejecting the class struggle, sought the solution of the labour
problem in the framework of the national commonwealth. While
remaining much inferior in numbers to the Christian-Social movement,
i 22
FREEDOM OF ASSOCIATION
the " national " trade union movement obtained a certain amount of
adherence, principally among salaried employees and among the
workers employed in commercial and transport undertakings.
Within the ranks of the Czech workers a highly nationalist policy
led to a further split even in the Socialist trade unions. Those who
rejected internationalism in the trade union movement set up in 1898,
simultaneously with the founding of a Czech National Socialist Party,
a National Socialist Trade Union Centre (Ceska obec delnická). The
number of unions affiliated to it had reached 68 by 1905 *.
In addition to these three movements, divided from one another
on political lines of cleavage, the formation of so-called " yellow "
trade unions took place only to a more limited extent. These nonmilitant, non-political associations of wage earners, which also
admitted employers to membership, were confined in Austia as a
general rule to individual works. They sometimes attained a fairly
Jürge membership (for instance, the House Union of the Harburg
Rubber Factory and that of the Vienna Neustadt Locomotive Works).
The " yellow " trade unions reject not only the class struggle, as do
the Christian-Social and the National movements, but also the use of
the strike weapon.
From the legal standpoint, all the trade unions formed were of
the same type. They were trade associations formed in accordance
with the terms of the Associations Act of 1867. Their rules had
therefore to conform with this Act, with the result that in the main
their wording was the same in all trade unions. As their principal
objects, in addition to benefit funds and educational facilities, the
furtherance of intellectual and social interests, etc., they generally
gave the foremost place to the systematic safeguarding of the interests
of the workers, as wage earners, in relation to their employers. With
a view to the " nullity " clause of the Combination Act, provisions
regarding stoppages of work were, as already mentioned, avoided.
The management of the trade union is vested in an annual
congress, a general meeting, an executive committee, an audit committee, an arbitration board for internal disputes, and a secretariat.
Branch executives and workshop representatives form the substructure
of the movement.
The vertical development has been towards concentration into
1
TROUSEK
: Dejiny sociálního hanti v zemich koruny casket
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
123
large unions by industry or into territorial units (districts and States),
and also into central confederations.
The great majority of trade unions in the former Austrian Empire
were to be found in industry proper, but they existed also in commerce, craft trades, and mining.
It should be added, in conclusion, that, somewhat later than the
manual workers, commercial and clerical employees also began to
organise in parallel unions, and to form federations and confederations
of their own. Among these were the Federation of Salaried Employees
in Industry (Bund der Industrieangestellten),
the Shop Assistants'
Union (Handlungsgehilfenverband),
the Salaried Farm Employees'
Association ( Güterbeamtenwerein), etc., all of which were associations
of employed persons which differed from the trade unions, in the
narrower sense of the word, only in their composition, and not in
their nature.
The organisation of State and municipal employees did not take
place to any great extent until after the war. Assistants to professsional men, however (such as dentists' mechanics, pharmaceutical
chemists' assistants, solicitors' and barristers' clerks), organised earlier
on trade union lines.
§ 3. — Period of the World War
By an Order of the Cabinet of 25 July IÇ14 (R.G.B1., No. 158)
the fundamental rights of association and assembly were suspended.
A further Order of 25 July 1914 (R.G.B1., No. 155) on " punishment
for the obstruction of the public services or of a public undertaking "
attacked the existence of freedom of combination, for it did away
with the impunity granted by the Combination Act of 1870 in the
matter of the so-called " State-protected undertakings ", and threatened with severe sentences of detention any worker in the same who
" with the intention of obstructing the service or the undertaking,
refuses or neglects to perform his duties or any part thereof ".
Section 3 of the same Order made an agreement to this end liable to
thé same penalty, i.e. it imposed a penalty upon combination. It
simultaneously conferred upon the Minister of the Interior full power
to declare all undertakings of importance to the national welfare to
be " State-protected undertakings ". The Government did actually
make very extensive use of this power. This was enough in itself to
124
FREEDOM OF ASSOCIATION
check the activities of the trade unions to a very serious extent, in
particular in regard to any " combination " in the Austrian sense of
the word. A similar check was provided by the immediate calling up
of any worker on strike to the colours. To this must be added the
fact that the great mass of the workers were removed out of industry
into active service in the field *.
1
The influence of these circumstances can be clearly seen in the
statistics of membership of the trade unions. We give as an example
the figures for the " free " or Social-Democratic trade unions.
Membership
I9I3
!9i4
1915
253,137
146,542
111,712
Membership
I916
1917
1918
108,739
213,321
295,147
Territories of the Hungarian Crown
§ 1. — Early History up to 1867
Up to the date of the founding of the Dual Monarchy in the year
1867, the combination movement in the " Territories of the Hungarian Crown " (Hungary, Transylvania, Croatia, and Slavonia)
were in close relation with those in the remaining territories of the
Habsburg Empire. The predominantly agricultural character of the
country, and the fact that it had been for centuries the principal
theatre of the warfare between the Western nations and the advancing
hosts of Islam, combined to render a great industrial development and
the building up of the trade union movement and, indeed, combination
in general, almost impossible throughout a lengthy period. Consequently there is little of importance to add in regard to Hungary,
either for the earlier period or for that in which the prohibition of
combination was still in force.
In the revolution year of 1848 the first short-lived Parliamentary
Government of Hungary issued an Order which granted freedom of
association, and in which all the limitations on the right of association
of workers were removed. After these efforts towards liberation
had been suppressed by the centralised military forces of the House
of Habsburg in 1849, a rigorous and -all-pervading absolutism was
introduced, bringing with it in the matter of right of association,
the system of permits.
Since this meant that the possibility of founding any association '
depended on the preliminary approval of its rules by the Government
authorities, the formation of workers' associations could easily be
prevented, and this is what actually happened for political reasons
at that time to a very large extent. Combination in the narrow sense
as an agreement for the exercise of organised influence on labour
conditions was, as in Austria, forbidden under penalties.
126
FREEDOM OF ASSOCIATION
§ 2. — Trade Unionism (1867-1914)
(Period
of Hungarian
Independence
within
the
Monarchy)
F R E E D O M , O F A S S O C I A T I O N AND C O M B I N A T I O N I N P R I N C I P L E
(1872-1873)
Soon after the formation of t h e H u n g a r i a n State in 1867 t h e
workers began to press for t h e g r a n t i n g of freedom of association and
for equal treatment in this matter with t h e employers. T h e first
result of these efforts, stimulated as they were by t h e political developm e n t s in H u n g a r y , was t h e establishment of freedom of combination
in t h e year 1872. T h i s was followed by t h e removal of restrictions
on association in 1873.
Freedom of combination was established by A c t of Parliament,
that is, by Act N o . V I I I of 1872, which sanctioned t h e H u n g a r i a n
Industries Act. .Section 96 of this A c t tacitly removed the penalty
from combinations for organised influence on conditions of work * ;
such agreements were, however, as in t h e Austrian Act of 1870,
declared to be without legal effect. T h i s meant t h a t t h e participators
in such agreements could neither sue one another nor be sued. Tn
point of fact they were, however, n o longer prohibited, b u t were
permitted, which meant the great step from t h e prohibition of
combination to its toleration.
T h e right of association was not established by Act of Parliament,
b u t only proclaimed in an Order by the Minister of t h e Interior in
1873 (Z. 1304/praes). I n this Order the importance a n d utility of
associative activity in public life was certainly recognised in principle,
b u t at the same time the dangers of its possible abuse were taken into
account. I n the wording of the Ministerial Order, " until such time
1
According to the wording of section 162 of the later Industries Act
amending the Industries Act of 1872 :
" . . . combinations of employers, which aim by the closing of the
works or the dismissal of workers, at forcing these to accept wages
reductions or any other less favourable conditions,
" together with combinations of the workers which aim by means of
common withdrawal of labour at forcing their employers to grant higher
wages or any other more favourabe working conditions,
" and finally, all contracts for the support of those persons who
adhere to the aforementioned combinations or the infliction of injury on
those persons who sever their connection with them. . . "
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
I 2J
as a Bill shall be brought in " 1, associations may neither be founded
nor pursue any activities until their rulés have been stamped by the
Minister of the Interior with a seal certifying their unobjectionable
character. Later on — by Ministerial Decree of 1875 (Z. 1508/praes)
— the " provisional " formation and activity of associations was
allowed, unless and until a negative decision (Untersagung) was
given by the Government within forty days after the date on which
their rules had been deposited with the authorities. This Order
introduced, however, at the same time, a much more decidedly
differential treatment of the workers' associations, which, like the
political associations, were forbidden to form branches and to admit
foreigners to membership. These restrictions, inspired by police
interests, may be accounted for partly by the political colouring which
characterised the labour movement at that date, when it still lacked
the specifically trade union character of modern times. This Order
offered to the authorities a chance of preventing the formation of
branches and also the systematic organisation of the workers throughout the whole country or throughout a whole trade, both by trade
unions and by political societies. I t was not until the early 'nineties
that it became really possible for the workers' associations organised
on a trade union basis to form local branches, the formation and
activity of which were then more closely specified by an Order of the
Minister of the Interior in 1906 (Z. 122000).
MORE RIGOROUS METHODS IN ADMINISTRATION
Freedom of combination, legally sanctioned in 1872, was maintained statutorily in the Act No. XVII of 1884, amending the Industries
Act, section 162 of which agrees word for word with the parallel
provisions of the Austrian Combination Act ; but here in the case
of the workers, penalties devolving on combinations for the withdrawal
of labour were abolished in principle only. For the Industries Act,
both in the wording of text of 1872 and in that of 1884, states that
a worker who leaves his employment contrary to law, without due
notice, shall be liable to fine or imprisonment, and shall also be sent
back to his work by the industrial authority
(Gewerbebehörde).
Comparable action on the part of employers was free of penalty and
1
Not 37et introduced.
128
FREEDOM OF ASSOCIATION
led to n o other consequences t h a n t h e liability to pay wages u p to
the date at which notice would normally have taken effect.
T h e forcible marching back to work of the contract-breaking
striker, which made the theoretical freedom of combination in practice
simply illusory, became more and more of a dead-letter as the workers'
movement increased in strength, so t h a t the application of this legally
permitted method would have offered serious difficulties in the case
of strikes of large dimensions.
As in Austria, so in H u n g a r y , the right to combine or to strike
was still subject to certain limitations. For instance, the wording of
section 3 of the Austrian Combination Act corresponds to the provisions of section 164 of Act No. X V I I of 1884 (Industries A c t ) , even
in its wording. T h e r e is this exception, t h a t t h e expression in the
Austrian legislation " intimidation or violence " is replaced by the
phrase " threats or injuries ". H e r e also the penalties provided by
the Combination Act were only applied if the conditions of the case
did not justify the application of the ordinary Penal Code, the
provisions of which on this point were as follows :
Any person who ior the purpose of raising or lowering wages employs
force against a worker or employer, injures him by word or deed, or
threatens him with violence, shall be guilty of the offence of assault
against a private person and shall be liable to the penalty of imprisonment for a term not exceeding six months. All such persons shall be
liable to the same penalty who assemble in front of factories, workshops
and other places where workmen are employed, in order to prevent the
commencement or continuance of work, or to incite workers to withdraw
their labour.
A further limitation of the freedom of combination, which was
formally tolerated by law, resulted from the fact that workers were
not allowed during a long period to hold strike meetings. A n Order
by the Minister of the Interior i n 1894 (Z. 1340/praes) contained the
following provisions on this point :
Public assemblies, in which reports are made in regard to a strike, or
to measures taken in connection with the same, or in which the terms
of an agreement are discussed, or the necessary steps for the continuance
of a strike are decided on, or in which a strike is in any way organised,
shall not be permitted to be held. Should any meetings advertised as
for other purposes be found to be used for the making of such agreements
they shall be dissolved.
But there were still further measures of an administrative
character which could be used by the H u n g a r i a n authorities to limit
T H E FORMER DUAL MONARCHY O F AUSTRIA-HUNGARY
' 20
freedom of combination in practice. For instance, a regulation regarding deportation, based on an Order of the Minister of the Interior in
the year 1805 (Z. 9389), was so applied that workers on strike who
did not belong to the district were simply forced to leave the commune
in which their place of employment was registered The collection
of strike funds was rendered extremely difficult for the workers by
the Order of the Minister of the Interior of 1897 (Z. 35100), if not
completely prevented.
In this way the freedom of combination constitutionally assured
to Hungarian workers by the Industries Act of 1872 and 1884 was in
practice of hardly any value.
W O R K E R S ' AND EMPLOYERS'
ASSOCIATIONS
A similar state of affairs was also experienced in regard to associations generally. For instance, the existence of an extensive workers' movement in agriculture led to the issue of special regulations
for workers' associations. The Order of the Minister of the Interior
of 1898 (Z. 2219/prae) began with the significant words :
Experience has shown that in many cases the so-called trade unions
and agricultural workers' associations founded by Socialists do not regard
it as their function to pursue the cultural objects laid down in their rules,
but rather, under the pretext of constituting an association for lawful
objects, generally pursue a different object, which consists in the disturbance of law and order, and particularly in the promotion of class hatred
and the rousing of opposition to property and the order established by law.
In this Order municipal governments were requested to pay
redoubled attention to the activity of workers' associations ; it further
required the rules of these associations to include provisions giving
the. supervisory authorities the right of entering at any time into
the assemblies of the association and into its registered premises and,
further, of examining the minutes, accounts and correspondence of
the association. Should such inspection bring to light any departure
from the rules of the association, or any circumstances which might
adversely affect the financial interests of the members or the interests
of the State, the association was to be immediately suspended by the
chief official of the municipality. Any further measures were to be
taken by the Minister of the Interior, to whom report was to be made ;
reports were also to be made twice a year on the measures taken for
the constant strict supervision of the activities of associations.
Freedom of Association
7
13°
FREEDOM OF ASSOCIATION
Since the rights of the trade unions in Hungary of that time did
not, as previously mentioned, rest on a statutory basis, they were
also without the protection of the law courts. On the grounds of the
many and various Decrees quoted, the last-mentioned of which
introduced a remarkably strict supervision of the workers' unions, it
depended in the last instance wholly and solely on the actions of the
administrative authorities, and in particular on those of the Minister
of the Interior, as to whether a workers' association could be constituted
or not. Wherever it was convenient for political reasons that a trade
union should not actually reach the point of being constituted (as, for
instance, in the case of the miners' union), the authorities managed
to delay giving a final decision as to their rules for years on all sorts
of trumpery pretexts. Since no rules might contain a clause empowering the union to take part in labour confficts or to raise strike funds,
every trade union which dared to undertake the organisation of a
strike was in constant danger of suspension and dissolution. The
result was very often the formation of secret organisations which,
under the guise of subscribers to a trade journal, collected defence
funds in the form of subscriptions to such journal.
Special and even more far-reaching restrictions were applied to
the unions of railway workers. On the occasion of a general railway
strike, the Minister of Commerce was empowered to issue service
regulations (Dienstpragmatik) for railway workers, which were promulgated by him as a Ministerial Decree in 1907. According to this
Decree and to Act No. XVIII of 1914 which was later substituted
for it, railwaymen were not allowed to form any association or
institution of any kind whatsoever — " not even mutual associations
for charitable purposes " — without the permission of the Minister of
Commerce, by whom the rules of any such organisation had to be
approved. All petitions to the Minister must be sent through service
channels, and the opinion of the directorate was to be expressed in
regard to them. Railwaymen were not allowed to be members of any
association the efforts of which were directed against the Empire or
the nation or — and here the limitation is stricter than for other
workers — which were in the opinion of the Minister of Commerce
incompatible with the interests of the railway service ". Should
a railwayman who was already a member of such an association fail
to obey orders to resign from it before the expiration of a fortnight,
he was dismissed from the service without further formalities by the
competent official.
THE FORMER DUAL MONARCHY OF AUSTRIA-HUNGARY
131
The same system which was put into force with ever-increasing
severity against the trade unions of the workers was applied by the
competent authorities for associations in the mildest manner in relation
to the trade associations of the employers.
In regard to the latter, the Hungarian law on associations, too,
provided for compulsor}' associations (Gewerbekorporationen)
for
craft trades ; these represented a relic of the guild system and certain
official functions were delegated to them. The free associations of
industrial elements (small-scale industrialists, factory owners and
merchants) were subject only to certain slightly restrictive provisions
of the Industries Act. In the case of employers' associations, if the
rules were in accordance with the statutory requirements, the
Minister could raise no objection to their formation. Again, in the
Chambers of Commerce and Industry, the Hungarian employers
possessed autonomous representative bodies formed on a statutory
basis.
So, in the absence of any statutory basis and of any resulting
legal protection for trade associations in Hungary the workers found
it as slow and difficult under the practice of the administrative
authorities to develop their trade unions as the employers' found it
easy to obtain the necessary official support for their efforts.
The number of workers who were organised in the Socialist trade
unions is given for 1912 as 112,000, and that of the Christian Social
unions as 13,000. The princioal field of activity was the capital,
Budapest ; the trade union movement of the rest of Hungary before
the war was only very slowly developed.
§ 3. — Period of the World War
As in the Austrian portion of the Dual-Monarchy, so also in the
Hungarian Kingdom, trade unionism was attacked at the very beginning of the war by the adoption of absolutist measures.
Two Governmental Orders (Nos. 5479/MP. and 5735/MP.) of
1914 prohibited throughout the country the formation of new unions
and branches of unions, and tightened up the supervision of the
existing trade unions and other associations. The right of suspension, which had previously only applied to workers' associations, was
extended to all other associations, and its exercise entrusted also to
the military authorities.
I32
FREEDOM OF ASSOCIATION
It is plain that under the influence of these measures, together
with that of the War Service Act, trade unionism in Hungary, where
for the period of the world war, just as in Austria, the military
power was the sole arbiter, was doomed to impotence.
*
*
The right of association, assembly, and combination in the territories previously belonging to the Austro-Hungarian Monarchy has
undergone changes since the political re-grouping after the war, not
only being placed on a different statutory basis, but also in many
instances being subjected to a real change in content. These further
developments with their effect on the present legal position of trade
combinations can be studied in the separate reports on the States
which have been formed, wholly or in part, of territories previously
belonging to the Austro-Hungarian Monarchy.
AUSTRIA
§ 1. — Development since 1918
LEGAL BASES
The Austrian Federal Republic took over and in many respects
extended the legal principles underlying combination in general and
for trade purposes in the old Austria.
The Acts concerning the right of association, dated 15 November 1867 (R.G.BL, No. 134), and the right of combination, dated
7 April 1870 (R.G.BL", No. 43), are still in force in Austria to-day
Neither of these are " constitutional statutes ", and they can therefore
be amended by the simple procedure laid down in the Federal Constitution for all other ordinary laws.
The principle of the right of association itself is nevertheless still
guaranteed, as it was before, by constitutional law ; the basic StateAct of the old Austria concerning the right of citizens " to hold
assemblies and to form associations ", dated 21 December 1867
(R.G.BL, No. 142), was embodied in the new Austrian Constitution
and explicitly recognised as a constitutional statute by Article 149 of
the final Federal Constitution of the Republic, dated 1 October ig20
(B.G.BL, No. 1). Consequently, under Article 44 of the present
Federal Constitution, the Act of 21 December 1867 which embodies
the principle of the right of association can be amended only by a
two-thirds majority. This constitutional guarantee is reinforced by
the resolution of the Provisional National Assembly dated 30 October 1918 (St.G.BL, No. 3), which was also admitted as a constitutional
statute by the Federal Constitution of 1920. This resolution, which
put an end to the exceptional conditions of the war period, explicitly
declares that " complete freedom of association and assembly without
distinction of sex is hereby established ". This admitted women to
participation in political associations, which in the old Austria was
prohibited by section 30 of the Associations Act of 1867,
134
FREEDOM OF ASSOCIATION
The Federal Constitution of the Republic provides yet another
guarantee — the referendum. Under Article 44, subsection 2, any
partial amendment of the Constitution — which includes any amendment of the fundamental provisions concerning the rights of association and assembly (but not of combination) — must after its adoption
by Parliament, if one-third of the National Council or Federal Council
so request, be submitted to a vote of the whole population.
Judicial protection of the rights of association and assembly,
again, has markedly increased as compared with the position in prewar Austria ; appeal to the Constitutional Court has much greater
practical effect than the earlier appeal to the then Federal Court.
The latter could at most state that prohibition or dissolution of a
combination for trade purposes would constitute an infringement of
the right of association as guaranteed by the Constitution. The
Court could not annul the action of the authorities which involved
such infringement or compel them to withdraw it. Under the new
Federal Constitution, on the other hand, such declarations are final
and mandatory.
The right of association, on which depends the entire trade union
movement, i.e. the permanent form of the " combination ", is thus
secured by the most far-reaching constitutional guarantees.
The right of combination (Koalition) in the sense of temporary
agreement with a view to altering labour conditions by means of
strikes or lockouts is not guaranteed by the Constitution, it is true,
but it is protected by law and fully recognised in the public jurisprudence of the Republic.
PRESENT DEVELOPMENT OF T R A D E COMBINATIONS
In this enlarged sphere, secured by the Constitution, not merely
unhindered but rather encouraged by the practice of the administrative authorities, trade combinations in the new Austrian Republic very
rapidly achieved the extensive development for which the political
progress of the post-revolutionary period had paved the way.
Workers
This is especially true of the workers' trade unions, which had
an important part to play during the difficult period of transition
when the new State was in course of establishment. -A glance at the
membership of the " free " trade unions shows the extraordinary
progress made by trade unionism in the liberal atmosphere of the
AUSTRIA
I35
Republic. F r o m the last figure before the war, for 1913, which was
253,137, the membership fell to a m i n i m u m of 108,739 i n 1916. T h e
post-war figures are as follows :
1918
1919
1920
1921
1922
1923
1924
1925
1926
•
295,147 members
772,146
"
900,820
"
1.079.777
1,049,949
"
896,763
"
828,088
"
807,515
" '
756,392
T h e Christian trade unions of Austria also show marked progress since the war, as indicated by the membership figures :
1918
i9 T 9
1920
1921
1922
1923
1924
!925
-
20,556 members
»,
30,725
64,478
,,
,,
78,737
78,105
,,
79.377
"
80,128
,,
77,200
,,
T h i s g r o w t h of trade unionism 1 must be attributed to t h e fact t h a t
in the difficult period of the revolution, w h e n the general confusion
was further heightened by the return of vast n u m b e r s of men from
the front, the trade unions took vigorous hold on the members of
their several trades and showed them the way to new orderly work.
T h e y t h u s formed a bulwark against the dangers which at that time
threatened civilisation and society and became a tried and trusted
instrument of the Republican order.
T h e Republic also made extensive use of the trade unions in
introducing t h e comprehensive social legislation with which it marked
its advent in Austria. T h e most important legislative enactment,
where the influence of the trade unions is concerned, is the Act of
18 December 1918 (St.G.BL, N o . 16 of 1920) concerning the establishm e n t of conciliation boards and collective labour agreements.
In
actual practice, it is true, both these things had precursors. But they
now became institutions established by law, in which the trade
1
For further details, cf. Haus F E H W N G E R : Die österreichische
Gewerkschaftsbewegung.
Vienna, Verlag " Arbeit und Wirtschaft ",
I925-
I36
FREEDOM OF ASSOCIATION
combinations (both of workers and of employers) were assigned a
predominant part defined by law. The collective agreement more
particularly became, in its statutorily prescribed form, one of the
most important spheres of activity of the trade unions and therefore
a source of strength to them, since they alone were recognised as
the contracting party on the workers' side.
Employers
This organisation by law of co-operation between the two
contracting parties in establishing labour conditions also led to greater
strength and unity in the employers' trade combinations.
The three co-existing central organisations of pre-war Austria
were as regards large-scale industry in the new Austria amalgamated
into one, the Central Federation of Austrian Industry (Hauptverband
der österreichischen Industrie), the members of which include both
industrial associations and single firms. The old Central Office of
Austrian Employers' Associations (Hauptstelle
österreichischer
Arbeitgeberorganisationen) was wound up, its functions being transferred to a special social policy section of the Central Federation
of Industry.
In addition to these central bodies and trade organisations for
large-scale industry proper, there are others for commerce and
industry (Gewerbe), among which may be mentioned as centra 1
organisations the industrial associations established in various States
and covering the State or part of it, the German-Austrian Industrial
Union (Deutschösterreichischer Gewerbebund), the Central Federation of Austrian Industrial Unions (Hauptverband österreichischer
Gewerbeverbände), and the Central Federation of Austrian Merchants
(Hauptverband der österreichischen Kaufmannschaft).
The Central
Employers' Federation (Arbeitgeberhauptverband),
which actually
covers all trades with the exception of large-scale industrial undertakings, is an employers' organisation in the strict sense of the word.
Civil Servants
One form of combination for trade purposes which has acquired
peculiar importance since the creation of the Republic and the resultant liberal attitude to the right of combination is combination among
civil servants.
Here, in the case of State officials especially, the employment
AUSTRIA
I37
relation is also a relation of allegiance, which gives the right of combination a peculiar stamp. In the old Austria public employees
possessed the right of combination in theory, buf in practice it suffered
considerable restrictions resulting from this special duty of allegiance
to the employer. In spite of these restrictions, which still remain in
part and will be mentioned' later, the significant change in the conception of legislation, government, and administration in relation to
combination for trade purposes as such has so affected the organisation of public employees, which is now an approved fact, that the
chief bodies representing this class of workers have become a not
inconsiderable force in the State.
The associations of public employees in the new Austria manifest
various tendencies, chiefly to be explained by their political connection with the three parliamentary parties. The majority, however,
particularly the higher State officials, are still organised in nonpolitical unions linked together in the Federation of Public Employees
(Reichsverband der öffentlichen Angestellten) as central federation.
Organisations with a political colour include the Social-Democratic
Austrian Union of Public Employees (Bund der öffentlichen Angestellten Oesterreichs), the Austrian Union of Christian Public
Employees (Gewerkskchaft der christlichen öffentlichen Angestellten
Oesterreichs), and the German Officials' Union (Deutscher Beamtenverband) as central organisations. Among the occupational unions
are the Christian Railwaymen's Union, the German Transport Union,
the Social-Democratic Railwaymen's Union for Legal Protection
(Rechtsschutzverein
der Eisenbahner), the Christian and German
unions of postal servants, the " free " Social-Democratic postal union,
and the Social-Democratic Technical Union (Technische Union), the
organisation of telegraph and telephone workers. Owing to the fact
that many of the leaders of these organisations are also prominent
members of the political parties, some ¡of the unions of State
employees, particularly those not refraining from striking, have a
very strong influence in Austria.
The trade unions of public employees in Austria are also
elaborately organised by occupation, subdivided by profession and
branch of administration, in associations of judges, administrative
officials, accountants, clerical officials, etc., and of salaried employees
and wage-earners in State undertakings such as the railways, posts and
telegraphs, etc.
Since they are not always customary in other countries, special
138
FREEDOM OF ASSOCIATION
interest attaches to the so-called " house organisations " which have
been set up in the different branches of the service, including the
Ministries. They too are linked up, by branches of the service and
occupational groups, in a big central organisation.
In State undertakings the institutions corresponding to these
house organisations are the " staff representative bodies ", which in
organisation more nearly resemble works councils. At present such
representative bodies are granted only to wage-earning employees
of the State, but the State officials are making vigorous efforts to
secure their introduction by law.
COMPULSORY ASSOCIATIONS
Since their sphere of activity is in part similar to that of the
voluntary trade combinations, mention must be made of the compulsory associations, which are not without significance, in law and in
practice, for the voluntary trade combinations in Austria. The Austrian Republic retained the two statutory industrial organisations of
the old Austria — chambers of commerce and industry and industrial
guilds — and added to them, on the workers' side, chambers of wageearning and salaried employees.
The peculiarity of these compulsory associations is that by law
membership is acquired simply by pursuing a given type of activity
in a given area and that the association (except for the journeymen's
representative bodies in the guilds) is empowered, in order to meet
its expenses, to levy contributions which can be enforced by administrative procedure as public dues. In addition to safeguarding the
trade interests of their members, the compulsory associations are
required to discharge certain functions of public administration ; for
example, the industrial guilds have to conduct certain examinations
and tests and to assist in industrial administration ; the chambers have
to give an opinion on legislative measures, assist in the appointment
of judges in the industrial courts, etc.
In the case of the industrial guilds, as before, anyone who within
the district of a guild practises the trade for which it is competent, as
a master ipso jure becomes a member of the guild (if he practises it
" i n a factory" membership is optional), while journeymen by
entering the trade within the district become associates (Angehörige) of the guild or its journeymen's representative body. The
compulsory character of these associations is especially exemplified in
the impossibility of voluntary resignation. The industrial guilds, and
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especially the journeymen's representative bodies, are of much less
importance than they used to be.
Under a new Chambers of Commerce Act of 25 February 1920
there must be a special chamber in each State to represent the interests
of commerce, crafts, and industry, including mining. The members
of the chamber are elected by all persons who carry on a commercial,
craft, industrial, or mining undertaking within the area of the chamber and also the representatives of certain trading companies, productive and economic guilds, mining associations under mining law,
and the chief officials of public undertakings. The said persons are
ipso jure members of the chamber.
The chambers of wage-earning and salaried employees, which
were revived in the Austrian Republic by the Act of 26 February 1920
(St.G.Bl., No. 100), are similar in structure to the chambers of commerce. Under section 1 of the Act they are to be set up for each
district where there is a chamber of commerce to represent the economic interests of wage-earning and salaried employees in industry, crafts,
commerce, transport, and mining, and " to promote efforts to improve
the economic and social position of wage-earners and salaried
employees ". Thus complete equality is established between these
two statutory representative bodies. Membership is linked up with
liability to compulsory sickness insurance and is acquired ipso jure.
§ 2. — Legal Conditions of Combination
LEGAL PRINCIPLES
General
The previous descriptions of the historical growth of the right
of combination in pre-war Austria and its further development in the
Austrian Republic since 1918 have already indicated the legal basis
on which combination in Austria now rests. By way of summary the
decisive Acts which are now in force may be enumerated :
(1) Basic State Act concerning the general rights of citizens,
including the right of association and assembly, dated 21 December 1867 (R.G.B1., No. 142);
(2) Act concerning the right of association, dated 15 November 1867 (R.G.B1., No. 134);
(3) Act concerning the right of assembly, dated 15 November 1867 (R.G.BL, No. 135);
FREEDOM OF ASSOCIATION
140
(4)
Combination Act of 7 April 1870 (R.G.B1., N o . 4 3 ) ;
(5)
Federal Constitution Act of 1 October 1920 (B.G.B1., N o . 1).
Freedom
as Opposed
to
Compulsion
T h e r e remains to be considered in more detail the conception of
the freedom of combination as opposed to compulsory combination
— in other words, t h e right not to combine.
A s a legal concept t h e r i g h t of combination obviously comprises
a positive element — the right to combine — and a negative — the
right not to combine x . T h e law affords several means of protection
against attempts in t h e trade union movement to exercise pressure
with a view to securing participation in combinations or m e m b e r s h i p
of a trade association by boycott, exclusion of workers not belonging
to t h e organisation, strikes to compel the discharge of unorganised
workers or t h e engagement of organised workers and those of similar
views, etc. T h e s e means include an action to contest adherence or
contract under duress, which is invalid in law (Civil Code,
section 870), an action for damages (Civil Code, section 1295), and,
if necessary, prosecution by a criminal court for extortion or threat
of violence (Criminal Code, sections 98-100). I n a decision of the
Supreme Court dated 16 J u n e 1911 (Sammlung,
X I V , N o . 5508), it
was stated that where the discharge of a worker was b r o u g h t about
through the threats of a workers' trade union the union was liable to
compensate the worker.
Special protection i n respect of temporary agreement is also
afforded by t h e Combination Act, 1870 ; under section 3 any person
who, " in order to b r i n g about, extend, or forcibly t o execute " any of
the agreements specified in section 2 of the Act (combinations in t h e
strict sense) b y intimidation or force hinders or attempts to hinder
1
If an employer discharges an unorganised worker under pressure
from his organised follow-workers, he does not infringe the right of combination (Sammlung der Entscheidungen der Gewerbegerichte, No. 2988).
This and other judicial decisions subsequently cited in footnotes are quoted
from LEDERER-SUCHANEK : Arbeitsrecht und Arbeiterschutz ; Vienna
1925. A stipulation in a collective agreement permitting the employer to
engage 011I3' workers organised in a " free " trade union has been
held by the Supreme Court to be contrary to public order and
morality (gegen die guten Sitten).
Cf. Eugen MARGARETHE : " Koalitionsfreiheit — Organisationszwang " ; Neue Freie Presse, No. 22566,
12 Jury 1927.
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employers or employees in the execution of their voluntary decision
to employ or be employed is liable to imprisonment for not less than
eight days or more than three months, unless the act (for example,
extortion) entails a heavier penalty under the Criminal Code.
INTERNAL AND EXTERNAL WORKING OF T H E T R A D E COMBINATION
Persons Covered
Unrestricted by law and protected from external pressure, the
right of association is nevertheless subject to voluntary limitations
imposed by the combinations themselves in their rules. The most
frequent condition is membership of the trade within the area of the
association. Under most rules the admission of members lies with
the officers of the association, whose decision is final ; no reasons
need be given for it. The officers are thus given suitable powers to
exclude applicants for membership whose political views are not
acceptable. The rules of the Christian trade unions state that only
Christian workers are eligible, and those of the " national " unions
admit only workers of German race.
Neither Austrian law nor the rules lay any stress on nationality
as a condition of membership. Under section 30 of the Associations
Act foreigners are excluded from political associations, but the trade
unions and employers' associations are no longer subject to this
restriction, since they generally describe themselves as non-political
associations and the authorities generally accept this description.
This applies also to the exclusion of minors from political associations ;
the question of age is of importance only under civil law in respect
of legal capacity and capacity to contract.
Neither the Association Act nor the rules of the various associations impose any restriction on grounds of sex, except in the case of
organisations in occupations confined to women (e.g. women home
workers, domestic servants, etc. ). The old exclusion of women from
membership of political associations was removed, as has already been
mentioned, by resolution of the National Assembly on 30 October IÇ18.
Legal persons may be members of an association, this applying
especially to unions constituted as associations which are members of
trade combinations of a higher grade (central federations).
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FREEDOM OF ASSOCIATION
Formation of the Trade Association
The formation of an employers' or workers' trade association no
longer requires authorisation, since the Associations Act of 1867
abandoned the concession system. The founders simply have to notify
the competent authority for associations of their intention to form an
association. The authority has power to prohibit the formation of the
association within four weeks of receiving the notification if " its
object or organisation is contrary to law or dangerous to the State ".
If there is no such prohibition the association ipso facto conies into
being. The authority for associations has to attest the actual
existence of the association as indicated by its rules, but this is merely
a declaratory and not a constituent proceeding. If the formation of
an association is prohibited, appeal may be made to the Federal
Chancellery and, if necessary, an action brought in the Constitutional
Court.
Further formalities include the submission of the rules and entry
in a register of associations kept for practical reasons by the authority
for associations. These proceedings have no legal force. The names
of the members of the executive committee of the association must be
communicated to the authority and the financial report presented
thereto within three days.
The acquisition of legal personality is purely a matter of civil
law, to which section 26 of the Civil Code applies : " I n relation to
other parties lawful societies shall as a rule enjoy equal rights with
natural persons. " Associations which are not prohibited, and thus
are tacitly admitted as lawful, ipso facto acquire legal capacity and
therefore legal personality.
The compulsory corporations are in a different position, since
they are created by a constituent act of administration. Chambers of
commerce and industry and chambers of wage-earning and salaried
employees become legal persons by virtue of this administrative act,
as do the industrial guilds, which are created by the industrial authorities simultaneously with the authorisation of their rules. The journeymen's assemblies also require special authorisation of their rules to
give them legal existence.
Working and Internal
Organisation
The rules to be submitted to the authority for associations must,
under section 4 of the Associations Act, indicate the following : the
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143
objects of the association, its funds and the means of acquiring them,
the procedure for constituting and reconstituting it, its headquarters,
the rights and duties of members, the managing bodies of the association, the conditions required to render valid resolutions, instructions,
and announcements, the method of adjusting disputes arising out of
relations within the association, the representation of the association
in relation to other parties, and provisions governing its dissolution.
The transactions constituting the contract of membership are
application to the officers of the association for admission on the one
side and admission as member by the officers on the other. The rules
generally require that application shall be in writing ; admission is
also usually signified in writing by the despatch of a membership card.
It is naturally impossible to go into all the details of the law of
association as embodied in the rules. Reference should be made, for
the voluntary trade combinations, to the standard rules drawn up for
the chief categories and for the compulsory corporations to the relevant
legislation, i.e. for the industrial guilds the Industrial Code and for
the chambers of commerce or of workers the Acts of 25 or 26 February 1920 (St.G.Bl., Nos. 98 or 100) as the case may be.
Supervision by the Public
Authorities
Since much of the work of the trade combination is carried out
in meetings, the State supervision provided by law for all kinds of
assemblies constitutes an important restriction on the right of association. This supervision takes the form, first, that the authority for
associations must be notified twenty-four hours beforehand of any
meeting of the association. The authority may send a representative
to the meeting, and this representative must close the meeting if illegal
acts take place, if subjects are discussed which are ultra vires under
the rules of the association, or if the meeting assumes a character
dangerous to public order. If his instructions are not obeyed the
meeting may be closed and the participants removed by force. No
association may adopt or propose resolutions which contravene criminal
law or involve usurpation by the association of legislative or executive
authority.
Supervision by the public authorities practically ends with these
purely police regulations respecting association and assembly. The
State exercises no financial control over the association's correct and
lawful management of its assets except where moneys of the association are disposed of in a manner contrary to the rules. In such cases
144
FRESDOM OF ASSOCIATION
the authorities are empowered to dissolve the association, and also
when its funds are clearly inadequate for the achievement of its objects
or are no longer available, as in that case the association has ceased
to fulfil the conditions of its legal existence.
The control exercised by the public authorities over the compulsory corporations, which are distinct from the voluntary trade
combinations, is naturally of an entirely different order and cannot be
dealt with here. This supervision is one form of the general supervision maintained by the State over autonomous corporations—bodies,
that is, entrusted in their own right with certain functions of public
administration. It takes the form less of police rules for the preservation of public order and security than of positive influence over the
corporations with a view to securing satisfactory discharge of their
functions in a manner conducive to the public interest. Hence t h e .
prevailing right of the public authorities to approve the appointment
of the corporations' officials, the obligation on the corporations to
transmit information to the authorities, the right of authorising the
estimates and expenditure, generally a certain financial control over
the corporations' management of their assets, and finally, in the case
of a few corporations only, the right of the State to carry on the
business of the corporations through special commissioners should the
corporations themself fail in this respect.
Dissolution
The only stipulations in the Association Act regarding voluntary
dissolution of an association are that the rules must indicate the manner
of dissolution, that the retiring officers must immediately notify the
State department of the voluntary dissolution, and the latter
announce it in the official gazette. In accordance with the first of
these statutory provisions the rules of associations contain more or
less detailed provisions regarding voluntary dissolution. According
to the standard constitution for trade unions, for example, the general
meeting must decide on the dissolution of the union and on the
disposal of any funds in hand. In the rules of individual unions these
somewhat meagre provisions are often expanded ; it is almost
invariably required that a certain number of the members must be
present when a vote of dissolution is taken and that at least a certain
majority must be in favour of it. As regards the disposal of the assets,
if any, of the association, the rules in general provide simply that the
general meeting which adopts the decision to dissolve must also decide
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as to the disposal of any assets remaining after all obligations have
been met. The rules sometimes provide further that the assets shall
be used in a manner befitting the objects of the organisation ; for
example, the rules of the Central Office of Industrial Employers'
Associations provide that the assets shall be devoted to an object
benefiting industry in general or the organisation of industry.
The grounds for compulsory dissolution of an association are
specified in the Associations Act, section 24 (action ultra vires, etc.).
These must be notified to the party in the decision to dissolve it. The
procedure also is laid down in the Act. Any dissolution by official
authority must be announced in the official gazette. In addition the
authorities must take the measures provided for in the Act with
regard to the assets of the association.
§ 3. — Activities of Trade Associations
OBJECTS AND FUNCTIONS
The manifold expression of objects in the rules of trade associations may be reduced to the general formula — to protect the interests
of the trade and class. This representation of interests may be
conducted both in the internal life of the association and externally
in relation to the State and public on one side and to other social
groups on the other. The last-named relation, i.e. that between
employers and employees, may be one of peaceful interplay between
the two organised interests or of organised conflict.
On the employers' side, unlike the workers', economic activities
are in the forefront. In the rules of the great manufacturers' associations the principal object mentioned is the " constant pursuit and
discussion of all economic questions connected with the development of industry " (Vienna Manufacturers' Union). The organisation thus pursues an industrial " class " policy within this predominantly economic framework. The social objects of the employers'
organisations are defined in such phrases as "to achieve the introduction
of healthy relations between the members and their employees by
laying down rules for the conduct of members in all questions of
fundamental importance in the relations between employer and
employed ".
Interest attaches to the rules of the one association which can
be regarded as an employers' organisation in the strictest sense, the
Central Office of Industrial Employers' Associations. By its
Freedom of Association
146
FREEDOM OF ASSOCIATION
constitution this body is concerned solely with the employment
relation, and its object is therefore stated to be : " the effecting of
agreement in cases of dispute between employers and employees while
guarding the employers' interests, common action by those interested
in all matters touching relations between industrial employers and
employees, protection of employees willing to work in case of strikes
or lockouts, joint action by the industrial employers' organisations
and those of industry and commerce in employers' questions,
representation and promotion of all other common interests of the
member unions and their members in matters of labour law, wages,
labour conditions, and social insurance ".
On the workers' side the rules of most trade unions, following
the " standard constitution ", give as their object "mutual support
of the members in order to improve their position and achieve better
labour conditions ". From this very general object follows a whole
series of detailed functions of a social, economic, and educational
order ; the following may be taken from the " standard constitution ":
Grant of legal aid ; assistance in case of unemployment, sickness,
exceptional distress ; journey money, provision of lodgings,
encouragement of apprenticeship ; training and educational courses
(especially for works councillors and trade union officials) ; lectures
and discussions on industrial, scientific, technical, and economic
subjects (excluding politics); the organisation of social festivities ;
the institution of libraries, publication of trade union journals, etc.
Then follow the most important forms of activity : participation in
the election of representatives to various institutions — industrial
courts, insurance institutions, sickness funds, co-operative societies,
works councils ; conduct of negotiations in labour disputes between
employers and employees ' (conciliation) ; intervention in cases of
breach of labour legislation ; assistance in the conclusion of collective
agreements. The wording of the strike clause in most trade union
rules is worthy of note ; for example, " encouragement and support
of members' efforts to secure better conditions of labour, where such
efforts do not contravene the Combination Act of 1870 ". Thus even
in their rules the trade unions reject the use of " intimidation or
force ", which are punishable under section 3 of the Act if " in order
to bring about, extend, or forcibly to carry out any of the agreements
specified in section 2 of this Act " attempts are made to hinder
" employers or employees in the execution of their voluntary decision
to employ or be employed ".
The objects of the compulsory corporations, which are not here
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14
studied in detail, are mostly specified in the relevant Acts. The
chambers of commerce and industry are quite generally required to
" represent the interests of commerce, crafts, and industry, including
mining ". The chambers of wage-earning and salaried employees are
instructed to " represent the economic interests of wage-earning and
salaried employees in industry, crafts, commerce, transport, and mining and to encourage efforts to improve the economic and social position of wage earners and salaried employees ", while the industrial
guilds are required by the Industrial Code (section 114) to " foster
esprit de corps, maintain and raise thè honour of the trade, and
further the humanitarian, economic, and educational interests of their
members and associates ". The journeymen's representative bodies
have to " safeguard and discuss the interests of the journeymen and
apprentices belonging to the guild " (Industrial Code, section 120).
INTERNAI, ACTIVITY OF T H E T R A D E COMBINATIONS
The forgoing enumeration of objects and functions indicates the
internal sphere of work of the voluntary trade combinations. Here
the rules of the combinations show great variety. Benefit institutions
of all kinds, consumers' unions, information bureaux, action to
encourage housing and gardens, assistance in vocational training, and
so on fall within the trade unions' spheres of activity. Their efforts
are supplemented by the welfare work undertaken by the compulsory
corporations for their members. Work in connection with the food
supply of the people, public health, and housing is expressly mentioned
among the duties of the chambers of commerce and of workers. The
latter especially are required to " found and manage agencies and
institutions in aid of the economic and social position of wage earners
and salaried employees . . . housing reform, health and hygiene work,
the furtherance of vocational, general cultural, and physical education, and the training of the next generation of workers ". The
industrial guilds set up sickness funds and relief funds for their
members and associates (journeymen). On the economic side they
create loan funds, raw material and sample warehouses, sale-rooms,
common machine works, etc. They found and support institutions for
industrial education, trade courses, exhibitions, and joint employment exchanges. One of their most important spheres.of activity,
in connection with the issue of certificates of proficiency, is apprenticeship. Here the guilds have to lay down the conditions for the
employment of apprentices, regulate the proportion of apprentices to
148
FREEDOM OF ASSOCIATION
journeymen, fix the period of apprenticeship, conduct examinations,
issue certificates, provide sickness benefit for apprentices, and so on.
PARTICIPATION IN STATE AND PUBLIC ACTIVITY
No provision is made by law for the participation of voluntary
trade combinations in legislation. The Government has no statutory
obligation to consult trade associations in thé preparation of legislative
measures except in the case of certain compulsory corporations
(chambers of commerce and of workers, and to some extent also
industrial guilds). Nevertheless it is the standing practice of the
public authorities for social administration at least to obtain the
opinion of the chief federations before introducing important sociai
Bills.
In addition to this participation in the legislative functions of the
State, which is not secured by law, the voluntary trade associations
as well as the compulsory corporations are by law given a very farreaching influence in certain administrative matters. For example,
certain exceptions to provisions of social legislation (such as authorisations of overtime, exceptions to Sunday rest, and shop-closing regulations) may be granted only after hearing the big trade organisations
and the compulsory corporations. The industrial guilds are even
required to make rules, within the limits of the legislative provisions,
respecting the beginning and ending of daily hours of work and
breaks in the trade, the period and rate of remuneration for
journeymen, and periods of notice. The journeymen's assembly has
to assist in this.
Mention should also be made of the advisory work of the chambers
of commerce and of workers. The former are explicitly required by
the Act to present proposals and opinions to the legislative bodies
and the authorities regarding the needs of commerce, industry, crafts,
and transport and all matters connected with the regulation of the
employment relation, the protection of workers, social insurance, the
labour market, housing, the food supply of the people, and popular
education. They may also indicate their views, in the form of an
expert opinion, on the creation of institutions and agencies intended
to encourage commerce, industry, crafts, and export. The chambers
of wage earners and salaried employees are also authorised to present
reports, opinions, and proposals regarding the regulation of employment conditions, the protection of workers, workers' insurance, the
labour market, housing, the food supply of the people, public health,
and public education.
149
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T o sum u p , it may be said that, while the compulsory corporations
have to handle or at any rate give an opinion on very m a n y matters
of public administration, the voluntary trade associations have a
m u c h more circumscribed field of activity in this respect and in
particular have no actual functions of public administration to
discharge.
P A R T I C I P A T I O N IN T H E E S T A B L I S H M E N T AND OBSERVANCE
OF LABOUR CONDITIONS
Combination
and the Works
Council
Under Austrian law the works councils are simply bodies organised by law to represent the interests of the workers in individual
undertakings, and therefore they are considered here only in relation
to the trade unions. T h e y do not constitute a special form of trade
association, for the body of workers in an u n d e r t a k i n g form merely
a n electorate, not a permanent works organisation manifesting itself
in regular meetings, administrative bodies, rules, a n d organised
activity. Now as always the bodies responsible in general for the
establishment of labour conditions and the conduct of disputes are
the trade unions. T h e r e are, however,' m a n y inter-relations between
the work of the works councils and that of t h e trade unions ; in
many respects the councils supplement the work of t h e trade unions.
T h e m u t u a l relations of the two types of body are frequently mentioned in the W o r k s Councils Act of 15 May 1919 (St.G.Bl.,lM"o. 283) 1 .
T h u s t h e w o r k s councils are given various functions i n respect of
collective agreements which, if discharged, are a valuable aid to the
work of t h e trade u n i o n s \ i n this sphere. A m o n g other matters the
works councils have to see that collective agreements are put into
operation and observed and may come to an agreement with the
employer to supplement certain points in the collective agreement.
T h e W o r k s Councils Act explicitly confers on these supplementary
agreements between the works council and the employer " the force
of a collective a g r e e m e n t " (section 3 ) . T h e only points in the
trade unions' collective agreement which may be so supplemented,
1
The " shop stewards "
distinguished from the works
granted the protection afforded
of the works council (Sammlung
No. 3079). '
.
of the workers' organisations must be
councils ; the former are not as such
by the Works Councils Act to members
der Entscheidungen der Gewerbegérichte,
'
150
FREEDOM OF ASSOCIATION
however, are those for which special regulation t h r o u g h the intermediary of the works council is provided for in the agreement itself.
F u r t h e r , these separate regulations must be made with t h e assistance
of the wage earners' a n d salaried employees' trade unions a n d , if
desired, of the employers' organisations. I n addition the works councils are required to prepare the way for the conclusion of collective
agreements in their undertakings where these are not yet in existence
(section 3, subsection 2) and t h u s assist the work of t h e trade unions.
W h e r e rates of wages for contract, piece, and job work a n d average
or m i n i m u m rates are not regulated b y collective a g r e e m e n t , they
m a y be fixed " only with the consent of the works council acting in
co-operation with the competent workers' trade unions a n d employers'
organisations " (section 3, subsection 3 ) ; here, too, provision is made
for co-operation between the trade union a n d the works council.
W h e r e there is no agreement between the trade organisations on
either side regarding rules of employment, the consent of the works
council is required for their issue, and the council t h u s takes over a
trade union function (section 3, subsection 4 ) .
A s the works council is b y law required " to watch over a n d
promote the industrial, social, and intellectual interests of the workers
and employees in the u n d e r t a k i n g ", it may be regarded in its whole
activity as a kind of works executive for the trade unions a n d their
policy. T h e works council m a y , indeed, be required to protect the
r i g h t of combination ; it m a y (under section 3 , subsection 9) " object
(before the conciliation board) to a worker or employee being given
notice or dismissed on the grounds that the reason for such action was
. . . on account of- his having made use of the right of association or
combination " 1.
T h e close relation between t h e trade unions and t h e works
council system in Austria is indicated in yet another special provision
of the W o r k s Councils A c t concerning eligibility. U n d e r section 6,
subsection 3, the r i g h t of election to the council extends not only to
all persons employed in t h e undertaking for more t h a n three m o n t h s ,
over 24 years of age, and entitled to vote, b u t also, where the works
1
The discharge of a worker on the grounds of his efforts to organise
the workers in an undertaking . . . must not be sanctioned
(Sammlung
der Entscheidungen
der Gewerbegerichte, No. 3202). Only the works
council, and not a trade association, is competent to dispute the discharge
(¿bid., No. 3078). Cf. also Dr. Emanuel ADLER : " The Austrian Works
Councils Act in Practice "; International Labour Review, Vol. XV,
Nos. 3 and 4, March and April 1927.
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AUSTRIA
council consists of more than four members, to " members of the
executive committees and officials of workers' and employees' trade
organisations ". Such trade union officials elected to the works
council may not belong to the council of more than one works or
undertaking and they may not form more than one-quarter of the
council. While these restrictions prevent domination of the workers'
representative bodies by a trade union bureaucracy, the possibility
hereby provided for the same person to hold office both as an official
of a trade union and as a member of a works council is noteworthy.
All these measures place the works council in a position to create a
direct link between the trade union and the body of workers in the
undertaking.
Combination and Collective
Agreements
The history of the trade union movement in Austria has since
the end of the nineteenth century been closely bound up with the
development of the collective agreement. The Austrian workers'
unions have energetically promoted the conclusion of collective agreements, especially since a resolution was adopted by the Trade Union
Congress of 1903, although at that time, in the absence of legal
recognition and regulation, they were of much less importance than
they are to-day. In pre-war Austria the number of agreements
concluded in 1908 was 483, covering 5,776 undertakings and 64^87
workers. The highest figure was that reached in 1912—822
agreements concluded for 13,336 undertakings and 180,382 workers.
With the hamstringing of the trade unions during the war the
number of collective agreements in the territory of present-day
Austria sank to 37, covering 1,127 undertakings and 17,342 workers,
in 1915, but after the termination of hostilities collective agreements
increased rapidly in number with the growing strength of trade
unionism in the Republic. In 1918 there were 200 agreements
covering 12,758 undertakings and 256,732 workers, and in 1919
961 agreements covering 36,044 undertakings and 529,846 workers.
This marked progress of the collective agreement, which after
the war was cordially received on the employers' side also, led to
legislative regulation under " Divisions IV and V of the Act of
18 December 1919 (St.G.Bl., No. 16 of 1920) " concerning the
creation of conciliation boards and collective labour agreements ".
It is expressly stated in the explanatory memorandum to the
Government Bill which became this Act that its object was " to
secure a definite influence for the trade unions of wage earners and
FREEDOM OF ASSOCIATION
152
salaried employees on the settlement of employment conditions ".
•With this in view the Act ignores the so-called works agreement between t h e employer and his own employees a n d takes account only of
the collective agreements concluded on t h e workers' side by a trade
association *, although the other p a r t y m a y be a single employer.
T h e trade unions t h u s came to t h e fore in the contractual
regulation of labour conditions. T h e y gained a decisive influence
on the fixing of these conditions by the fact t h a t t h e mandatory part
of t h e agreement was given t h e legal force of a b i n d i n g rule (section 14). Their influence was further heightened by the fact that a
decision of the conciliation board can give a collective agreement
'' which has acquired predominant importance " the status of a fixed
rule, which can therewith be extended to t h e whole branch of
industry, occupational group, or area. Since t h e workers' trade union
has thus been recognised by law as t h e sole partner to the collective
agreement, it has taken t h e greatest stride to undisputed recognition.
T h e marked progress of the Austrian trade union movement since
the war has therefore been accompanied by a simultaneous expansion
of collective agreements.
Agreements
concluded
1920
1921
1922
1923
1924
1925
1
I,6n
2,467
1,906
1,226
735 '
636 '
Undertakings
covered
Workers
covered
36,044
529,846
908,007
780,828
75!.°36
697.925
562,289
59>°7o/
91,271
83,552
93.748
82,516
Avoiding double counting of agreements concluded more than once in the year.
F o r the sake of completeness reference should also be made to
t h e supplementary collective agreements which t h e works councils
m a y conclude a n d also to t h e agreements u n d e r section 114 b of the
Industrial Code which the Act placed on t h e same footing as the true
collective agreement ; by these the industrial guilds, " in agreement
with the journeymen's assembly ", make rules regarding hours of
work, breaks, remuneration, and periods of notice for the journeymen
in their own branch of industry.
1
Trade associations within the meaning of the Act of 18 Dec. 1919
mean associations of wage earners and salaried employees formed for the
defence of common trade- interests and possessing legal personality
(Sammlung der Entscheidungen der Gewerbegerichte, No. 2912).
I53
AUSTRIA
Special provisions of Austrian labour law regarding the collective agreement are also to be found in the Agricultural and Domestic
Workers Code, the Estate Employees Act, the Domestic Servants
Code, and the Home Workers Act.
Combination and the Settlement
of Industrial
Disputes
The peaceful settlement of disputes between employers and
workers is now frequently mentioned in the rules of trade associations
as one of their objects.
The Industrial Code laid special emphasis on this matter ; sections 122 to 124 require the ' guilds to set up a joint arbitration
committee to settle disputes arising between members of the guild and
their journeymen. Agreements and decisions arrived at by this
committee can be enforced by administrative procedure, but may be
contested before the industrial court ; direct conciliation proceedings
may be undertaken before the court also.
These earlier means of conciliation have now, however, lost all
importance since the Act of 18 December 1919 (St.G.Bl., No. 16, 1920)
already mentioned provided for the creation of special conciliation
boards in Austria. These boards act in the first place as conciliation
_ bodies which have to intervene in disputes arising out of
employment. In addition they act as wage boards, since they have
to assist in the conclusion of wage agreements, register them 1 , and
if necessary declare them binding. The origin of this institution
goes back to the appeal commissions set up during tne war, which
were converted into conciliation boards by an executive Order of the
State Council on 4 November 1918.
The conciliation boards are joint bodies. The Federal Minister
for Social Administration appoints an equal number of employers and
employees to each board for three years. Before appointment,
however, " the proposals of the trade associations concerned shall
be heard ". These proposals must be made within a reasonable timelimit, to be fixed on each occasion. The chairman is appointed
without limit of time. The procedure of conciliation terminates by
agreement or an arbitral award.
1
If a collective agreement has not been registered it is permissible
to deviate from its provisions (Sammlung der Entscheidungen der Gewer.begerichte, No. 3209).
FREEDOM OF ASSOCIATION
154
MILITANT ACTIVITY AND ITS L I M I T S
The militant activities of the trade combinations which actually
cover collective disputes are in many respects restricted by the
legislative provisions governing the working of the trade combination.
Mention has already been made of the relation between the right of
association and the Combination Act ; it was particularly pointed out
that agreements which were invalid under the Combination Act could
not be given legal force by the formation of an association, and that
therefore official approval must be refused to rules which explicitly
included among the objects of the association the organisation of
strikes and lockouts and the support of those persisting in a strike or
lockout. This risk is frequently allowed for in the association rules,
as was pointed out earlier ; they never mention such things explicitly
as objects of the association and also cover themselves, in the case of
rules to which objection might be taken from the standpoint of the
Combination Act, by a clause to the effect that the measures set forth
in the rules are to be regarded as the objects of the association only
in so far as " the agreements in question are not deprived of legal force
under the Act of 7 April 1870 (R.G.BL, No. 43) " \ Some union
rules are less carefully worded ; in some there is no reference to the
Combination Act and in those of one union it is quite frankly stated
that the objects of the union are served by " trade union force and
co-operation with other employees for the achievement of common
ends ", and by " a trade union war chest " for the support of members
in case of victimisation, lockouts, stoppages of work. This war chest
is constituted not merely by " voluntary " contributions (as in the
other unions mentioned) but by " compulsory " contributions, which
every member must pay. That the authority for associations no longer
takes exception to such rules shows how tolerant its practice has
become ; if the idea of the police State prevailed such rules would
obviously meet with objection.
The rules of the employers' organisations contain references to
the Combination Act similar to those mentioned in the case of the
trade unions. For example, the object of the Central Office of
Industrial Employers' Associations is stated to be " to work towards
1
E.g. the standard constitution for trade unions, section 2 (é) :
" Promotion and support of members' efforts to obtain better labour
conditions by voluntary membership contracts, provided these efforts
are not contrary to the Act of 7 April 1870 (R.G.Bl., No. 43) ".
AUSTRIA
155
common action of those interested in all matters touching the relation
between industrial employers and their employees . . . within the
limits of statutory provisions " ; the statutory provisions referred
to can be none other than the Combination Act. There was a more
direct reference in the rules of the former Office of Austrian
Employers' Associations, which was dissolved after the revolution
and converted into a social section of the Central Federation of
Austrian Industry. Among the means to the attainment of its objects
was included : " the creation of funds in order to grant support in
suitable cases on the occasion of strike movements, in so far as this
would not be contrary to the Act of 7 April 1870 (R.G.BL, No. 43)".
These rules were authorised in 1907, while those of the Office of
Industrial Employers' Associations date from very recent times. The
contrast between the two clearly marks the change in attitude which
has taken place in matters of the right of association.
In addition to the restrictions which legally may still be imposed
under the general law of association and combination, there are further
restrictions on militant activity under criminal law.
The repeal of sections 479 to 481 of the Criminal Code of 1852
by the Combination Act had the result that strikes and lockouts were
no longer prohibited and criminal. The Combination Act places a
limitation in criminal law only, as already mentioned, by imposing
_. penalties on anyone " who, in order to bring about, extend, or forcibly
to execute any of the agreements specified in section 2 of this Act,
by intimidation or force hinders or attempts to hinder employers or
employees in the execution of their voluntary decision'to employ or
be employed ". The action is punishable as an offence by imprisonment for not less than eight days or more than three months, unless
a heavier penalty is provided by criminal law. The precise meaning
of " by intimidation or force " is doubtful. Mere persuasion, influencing the will of the strike breaker as permitted by law, cannot be a
criminal act. There can be no criminal intimidation unless the
strike breaker is at least threatened. It is a disputed point whether
merely insulting or abusing a strike breaker can be regarded as
intimidation. In earlier years the Austrian Court of Cassation — and,
following its example, a number of lower courts — adopted the view
that insults, affronts to honour, violent demands, hustling by
comrades, pressure of numbers constituted intimidation and were
therefore punishable under the Combination Act. One State court
even went so far as to declare the mere appearance of a striker with
several sympathisers to be punishable if he tried to persuade the man
156
FREEDOM OF ASSOCIATION
who was willing to work to join the strike. The subsequent practice
of the courts, however, has drawn a sharp distinction between threats
and a simple warning which " consists in an entirely objective indication
of a possible danger ". For example, an intimation that after the
strike no one will work with the strike breaker is no longer regarded
as " intimidation " within the meaning of the Combination Act.
As regards the much-discussed picketing, the courts see nothing
punishable under the Combination Act in this, if it simply consist«
in informing those willing to work of the existence of the strike and
thus dissuading people from work. As the courts refused to act, the
police authorities at one time attempted to disperse pickets on the
plea that their presence interfered with traffic, and if they refused to
retire inflicted a police penalty. This practice also has long
disappeared.
The use of intimidation and force is only punished under the
Combination Act if the action does not constitute a criminal offence
entailing a heavier pe.nalty. Such offences include the doing of
grievous bodily harm and offences against life, also — though this is
disputed — extortion as punishable by criminal law. The penalty
for the last-named crime is penal servitude for six months to a year
and if with aggravating circumstances up to five years, which is much
more severe than the penalties under section 3 of the Combination
Act. There can be no doubt that it is difficult to draw the distinction
between this offence and those specified in section 3 of the Combination
Act ; but the Austrian Supreme Court, sitting as court of final appeal,
has held that the two provisions are not mutually exclusive. According to its decision of 1 December 1900 (Z. 14129, Sammlung, No.
3,276) the situation envisaged in section 3 of the Combination Act
differs from that of section 98 of the Criminal Code not in the object
of the act but in the means. If the means adopted to compel a
cessation of work (in the case in point, threats of bodily injury
calculated to cause apprehension) are of the kind contemplated in
section 98, the act is an offence as therein specified and not one under
section 3 of the Combination Act. In the case on which the decision
was based a person belonging neither to the employers nor to the
employees attempted to clear the way to the factory for those willing
to work. His attempt was frustrated by the strikers with violence.
The court of appeal held that violence, if it was to come under section 98 of the Criminal Code, must at any rate be directed immediately
against the persons whom it was desired to compel to cease work and,
AUSTRIA
*S7
that the frustration by violence of such acts by third parties could not
be regarded as compulsion exercised on persons willing to work.
Under section 3 of the Combination Act, on the other hand,
" violence " covers any kind of violence and therefore also violent acts
of the kind under consideration.
The interpretation of section 3 of the Combination Act raises
another important question which is much disputed and possibly even
more difficult of solution. This question is whether section 3 can
apply only when compulsion is exercised on members of the same
group (as employees on employees or employers on employers), or
whether it is also a punishable act when members of one group
exercise compulsion on members of the other. No uniform judicial
practice in this matter has been established. If section 3 of the
Combination Act is read in conjunction with section 2, it becomes
clear that the first of these solutions is correct, since section 2 mentions
agreements between employees directed against employers and,
vice versa, of employers against employees, and declares such agreements void. The right of combination under civil law is thus
sanctioned under criminal law by section 3, in that attempts by
compulsion to set aside the legal invalidity of such agreements are
liable to penalties. The personal application of the criminal penalty
is thus the same as that of the legal invalidity, and it follows, therefore, that attempted intimidation and acts of violence by -strikers
against the employer in order to enforce their demands are punishable
under the Criminal Code but not under section 3 of the Combination
Act.
For purposes of criminal liability under section 3 of the Combination Act or under the provisions of the Criminal Code already
mentioned, it obviously does not matter whether the compulsion is
exercised by members of a temporary or of a permanent combination.
The nature of the offence is in no way different in criminal law because
it is committed by members of an organisation of the second type.
It is, however, of importance whether the compulsion is exercised by
several persons jointly. According to the nature of the case it may
fall, for example, under section 68 regarding rebellion (organisation
of resistance to the execution of the orders of the public authorities)
or under section 73 (riot, i.e. open, organised, and violent resistance,
requiring the use of armed force to overcome it, to an official order
to disperse — a case which may arise particularly when a meeting of
an association or of any other kind is dissolved).
I58
FREEDOM OF ASSOCIATION
In earlier times police measures against strikes and lockouts were
in much favour, but at present they are practically never used. They
were based on the provisions of the Imperial Patent of 20 April 1854
(R.G.BL, No. 96) — which has recently been repealed — concerning
the maintenance of order on the assembling of numbers of persons in
public places. Strike meetings and meetings of strikers outside the
undertaking in which the strike occurred were frequently penalised
as police offences under this Imperial Order. The police often took
steps even against pickets under the criminal provisions of this
Patent. Further possibilities, of which again no use is now made, are
afforded by the Act of 27 July 1871 (R.G.Bl., No. 88); this Act
permits the expulsion for police reasons of " vagabonds and other
idle persons who appeal to public charity " and of unauthorised
persons who can " produce no proof of income or lawful means of
livelihood ". The police authorities frequently adduced considerations of public order or safety as reasons for expelling leaders of
strikes, agitators, and pickets ; they also declared persons taking
part in strikes to be unauthorised persons within the meaning of the
Act and proceeded to expel them. Even in the old days, however,
the Imperial Court put a stop to this doubtful interpretation of the
Act of 1871.
Certain provisions of the Industrial Code also offer possibilities
of administrative restrictions on the right to strike. Section 77 of the
old Industrial Code of 1859, appealing to section 481 of the Criminal
Tode of 1852, forbade journeymen to make agreements among themselves with a view to extorting conditions from their employer by
means of concerted .refusal to work or otherwise. This restriction
disappeared with the repeal of section 481 by the Combination Act.
Further, a journeyman who left his employer without lawful reasons
was liable to penalties for breach of the Industrial Code and at the
request of the employer might be compelled by the authorities to
return to work. . This provision no longer exists ; a breach of
contract by an employee renders him merely liable for damages. The
provisions regarding the work book — also repealed by recent legislation — afforded a further opportunity for hindering the employee in
the exercise of the right to strike ; by making certain secret signs
in the work book the employer could label the employee as one who
took part in strikes (black lists, etc.). This opportunity has
disappeared since the revolution with the repeal of the provisions of
the Industrial Code regarding the work book.
AUSTRIA
ISC
The question of restricting the right to strike in certain public
utility undertakings, such as hospitals, transport undertakings, food
industries, etc., is much discussed. This is usually linked to the
further question whether it would not be possible to prevent the outbreak of strikes or at any rate to bring about an early termination of
the stoppage by the institution of compulsory arbitration boards for
this special purpose, to whose decisions the parties would have to
submit unconditionally. Up to the present no solution of the problem
has been found in Austria.
A matter of particular importance in connection with the right
of combination in Austria is the problem of the right of public
officials to strike. The idea of a strike in defence of their economic
interests in case of need has gained a great deal of ground among
Austrian officials, under the influence of the trade union movement
and of the distress after the war. This idea- meets with strenuous
opposition, especially as regards officials in State Government departments, a strike of officials being regarded as a breach of the oath of
allegiance to the State. A vote on the principle of an officials' strike,
which was taken by the officials' organisations on the occasion of the
salary agitation of 1925, at any rate showed that the great majority of
the officials approve of the strike and would join it.
Among statutory provisions affecting the right of association and
combination for officials, mention may be made of section 25 of the
Service Act for Government officials and Government employees
dated 25 January 1914 (R.G.B1., No. 15). This forbids officials to
join an association if the aims of the association or the nature of its
activities involve a breach of an official's duties. It also forbids them
to enter any society the object of which is to cause disturbance or
restriction of the service. Similar restrictions on the right of combination for State employees are imposed by clause 164 of the Act.
Contraventions of these provisions involve disciplinary penalties.
The reason for their adoption was the idea that an official who
voluntarily assumes governmental functions can never logically oppose
the Government.
In civil law a strike or lockout, if it involves dissolution of the
employment contract without due notice, may render the employee or
employer liable for damages. Under section 116a of the Civil Code,
if the employee leaves without' due notice or sufficient cause (what
constitutes sufficient cause is explicitly stated), the employer may
demand his return to work plus damages or claim damages for nonfulfilment of contract. If, on the other hand, the employer dismisses
160
FREEDOM OF ASSOCIATION
the employee without due notice and sufficient cause \ t h e employee
is entitled, under section 1162b of the Civil Code, to recover the
remuneration to which h e is contractually entitled for the period
which should have elapsed up to t h e termination of his employment
by expiry of the contract or lawful notice, without prejudice to a n y
further claim for damages. If both parties are responsible for t h e
premature termination of the employment, the judge has to decide a t
his discretion whether damages are due and to what a m o u n t . T h e s e
provisions of the Civil Code are m a n d a t o r y , i.e. they cannot be
annulled or restricted by the employment contract.
Similar stipulations, w i t h more or less variation, are to be found
in the special laws for individual classes of workers (Industrial Code,
Salaried Employees Act, Estate Employees Act, Agricultural Workers
Code). Section 84 of the Industrial Code, for example, provides
t h a t if a journeyman is dismissed without due notice or lawful cause
h e shall be entitled to his wage and other allowances agreed upon for
the entire period of notice or the remainder thereof, while under
section 86 a journeyman who terminates his employment without due
notice or lawful cause is liable to the employer for damages under
section 1162a of the Civil Code.
1
Among sufficient causes for dismissal are : stoppage of work owing
to participation in a strike (Sammlung der Entscheidungen der Gewerbegerichte, No. 2145), persuading workers willing to work not to do so
(ibid., No. 1444), concerted refusal to work (ibid., No. 2273). Dismissal
of a worker who stops work owing to a strike is no infringement of the
right of combination (ibid., No. 3172). The declaration of strike on the
basis of an organisation clause contrary to public order and morals (sittenwidrig) in a collective agreement creates a liability for damages. Cf. decision of the Supreme Court, cited by MARGARETHA : " Koalitionsfreiheit
— Organisationszwang " ; Neue Freie Presse, No. 22566, 12 July 1927.
Cf. also A D L E R , loc.
cit.
SUMMARY
The right of combination for trade purposes in Austria is based
not on special legislation but on the general law of association. This
in turn is based on the principle of the right of association, which,
together with the right of assembly, is guaranteed by the Constitution.
Under this law, for the formation of a trade combination, as of
any other association, all that is required is notification and
submission of the rules, which must contain certain information
prescribed by law, notably as to the object of the association. Special
authorisation (concession) is no longer needed. The formation of an
association can be prohibited only if it is " contrary to law or
dangerous to the State ".
The activities of trade combinations are subject to no other
restrictions and no stricter supervision by the authorities than those
of any other association. The trade combination may carry on its
work freely within the scope of the laws. It can be dissolved by the
authorities only in the cases specified in the Associations Act
(decisions contrary to criminal law, usurpation of legislative or
executive authority, disappearance of the conditions for legal
existence).
The work of the trade combinations for the protection of their
members' trade and class interests — apart from internal policy and
activity — takes the form of decisive participation in the fixing of
labour conditions by the preparation and conclusion of collective
agreements, the conciliation of industrial disputes, and in the discharge of certain functions.
In all these spheres both the employers' and the workers'
associations in Austria are given a great deal of influence in law and
in practice. The trade union movement, which, following the political
parties, is divided into Social-Democratic, Christian-Social, and
Nationalist groups, has since the creation of the Republic attracted
large numbers of salaried employees and public officials.
In addition to this voluntary trade union movement which is
highly developed and reaches even into the highest grades of
"Freedom of Association
1Ó2
FREEDOM OF ASSOCIATION
intellectual workers, there are also — a peculiarity of Austria —
various compulsory organisations with extensive powers, industrial
guilds, with their " journeymen's assemblies ", chambers of commerce, chambers of wage earners and salaried employees ; and these
are of great significance.
Another feature peculiar to Austria is that the right of " combination " (Koalition) in the specifically Austrian sense is subject to
special legislation. "Combination" in this sense is a temporary
association among employers or employees by agreement to exact
certain labour conditions by the employment of militant measures
(discharge, lockout, strike, etc.).
Agreement for purposes of a strike or lockout (i.e. " combination ") is liable to no criminal penalty in Austria but has no force
in civil law. Militant trade union action itself is not a criminal
offence, so long as it remains within the bounds of ordinary criminal
law. Perceptible restrictions on the right of combination by police
or administrative measures are unknown in Austria.
On the other hand protection is given against enforced combination. The use of " intimidation or force " to restrict the individual's
right to employ or be employed is an infringement of the right of
combination under the Combinations Act itself. Further limits are
placed by criminal law and also by civil law in the case of unilateral
and premature termination of employment.
The right to strike is claimed also by public officials and salaried
employees of all classes. The organised officials in a vote on the
principle declared by a large majority in favour of the use of
militant trade union methods in case of need.
BIBLIOGRAPHY
ADAMOVICH.
Oesterreichïsches
BERNATZIK.
Die österreichischer!
BRAUN.
Die Gewerkschaften,
DEUTSCH.
FEGER.
Angestellten
Geschichte
Verwaltungsrecht.
Verfassungsgesetze.
ihre Entwicklung
der österreichischen
und
Kämpfe.
Gewerkschaftsbewegung.
Schaffen und Wollen des deutschen Handels- und
Verbandes in Oesterreich.
FEHIJNGER.
Die österreichische
Industrie-
Gewerkschaftsbewegung.
FLEINER. Institutionen
des deutschen Verwaltungsrechts,
jekte der verwaltungsrechtlichen Verhältnisse).
10 (Sub-
HEMALA. Geschichte der Gewerkschaften.
Die Gewerkschaften.
HERRNRIT.
Grundlagen des
INGWER. Das Koalitionsrecht
Verwaltungsrechtes.
der
Arbeiter.
- — and ROSNER. Volkstümliches
Handbuch des österreichischen
Rechtes : Part I, Section 2, Chapter V (Die allgemeinen Rechte der
Staatsbürger); Part V, vSection 1 (Das Koalitionsiecht), Section 5 (Das
Arbeitsverhältnis).
KAFF.
Die Unternehmerverbände
in
Oesterreich.
KRAINZ-EHRENZWEIG. System des allgemeinen österreichischen Privatrechts. General Part, Division III, Section 2 (Juristische Personen).
SOMBART. Dennoch ! Aus Theorie und Geschichte der
lichen
Arbeiterbewegung.
gewerkschaft-
TEZNER. Das österreichische
Administrativverfahren.
Oesterr eichisches Vereins- und Versammlungsrecht (Manz'sche
Taschenausgabe der österreichischen Gesetze, X X X I I I I . Band).
VERKAUF. Zur Geschichte des Arbeitsrechtes in Oesterreich.
ZWING. Gewerkschaftliche
Probleme.
Oesterreichisches
Staatswörterbuch.
Articles on " Arbeitsrecht,
Koalitionen, Arbeitseinstellungen und Aussperrungen, Organisation der
Arbeiter, Polizei und Polizeistrafrecht, Staatsdienst, Vereinsrecht. "
Arbeit und Wirtschaft.
Journal of the Vienna Chamber of Wage
Earners.
HUNGARY
§ 1. — Development since 1918 1
The Democratic Government which came into power in Hungary
immediately after the war at once abolished, by Order Z. 4.Ç78/MP
of 1918, the war regulations limiting freedom of association, assembly,
and combination in Hungary.
The Republic .constituted shortly afterwards granted explicit
legal recognition of the complete freedom to form associations (Act
No. I l l of 1919). Official authorisation was thus no longer required
for the formation of an association. I t was still necessary, however,
to submit rules for approval, elect a committee, and register the
association in order to acquire legal personality.
Then came the Communist Government (Rätediktatur)t
which
made no change in the law thus created, but in practice was not
favourable to the free development of civic life, including the activity
of associations. Workers were forced — though by indirect means —
to join the trade unions, but the free activities of the latter were a t
the same time restricted.
After the fall of the Communist Government, the constitutional
monarchy was restored in Hungary under a Regent. The more liberal
legislation affecting the right of association passed since the war was
repealed and the war regulations (as they stood on 30 October 1918)
were restored by Order Z. 5,084/MP of 1919.
Under these provisions, associations with regularly approved rules
might continue to exist, but associations created in the meantime
whose rules had not been approved were obliged to submit them for
approval to the Minister of the Interior within thirty days and to
1
Cf. Trade Union Conditions in Hungary. Documents presented
by the Mission of Enquiry of the International Labour Office (AugustSepjtember 1Ç20). Geneva, 1921. 189 pp.
i66
FREEDOM OF ASSOCIATION
suspend their activities until such approval was obtained. The decision as to the founding of new associations was thus left entirely to
the discretion of- the Minister, but the strictly enforced prohibition
of associations that existed during the war was replaced by at least
a possibility of their formation. The Minister of the Interior, in his
Order Z. 77,000 of 1922 consolidating the regulations for the rules
of associations, declared, however, that he would use his right to
permit the exceptional formation of associations only in cases
" deserving of special consideration in the public interest ". And by
Order Z. 44,126 of 1922 he instructed the principal municipal
authorities not to allow the establishment of branches even of duly
authorised associations except in cases where the formation of these
branches, too, appeared to be in the public interest, even though all
other conditions were satisfied.
This latter Order gave the provincial officials power to carry out
an exceedingly strict policy with regard to associations. Only very
seldom was the founding of a branch actually permitted. As a rule
applications were refused quite mechanically and without any
statement of adequate reasons. This arbitrary state of affairs aroused
growing discontent among the workers, and the trade unions drew
the attention of the public to particularly gross abuses.
This was not entirely without effect, inasmuch as the municipal
authorities were instructed, by Order Z. 115,112 of 1923 of the
Minister of the Interior, that the formation of branches of already
existing trade unions of industrial workers should in future be
prohibited only under certain circumstances, namely, when there
were serious objections to the existence of the branches arising out
of considerations of public safety or particular local conditions, or
when the majority of the leaders and members had been previously
convicted or appeared to be lacking in patriotism and national' loyalty.
This Order, moreover, provided that precise grounds must be
given for unfavourable decisions, and since the founding of branches
is an important element in the effective development of trade union
organisation, it may be regarded as a withdrawal from the policy of
strict prohibition hitherto followed in Hungary. This, however, is
true only for industrial workers, as the Order does not apply, for
instance, to agricultural workers. In view of the practice still pursued
by the provincial administrative officials, even industrial workers
cannot obtain permission to found a branch organisation without loss
of time and money, having to appeal to the Minister of the Interior.
HUNGARY
167
There are further regulations which most seriously interfere with
the free activity of associations, particularly those of workers. For
example, by Order Z. 6,622/M.P. of 1920, all assemblies and
meetings, even those of the committee, must be announced to the
police authorities three days in advance ; there are penalties for
disobedience of this Order. The authorities are free to forbid the
meeting or to attend it and dissolve it. In practice the Hungarian
authorities do not allow even scientific lectures held in connection
with the educational activities of trade unions to take place without
the presence of the police. It is only recently and with regard to the
meetings of the executive committee that the authorities have shown
indulgence in respect of the practice introduced by the trade unions
— in spite of the Order — not to give notice of such meetings.
A further instrument for severe treatment of associations accrues
to the Hungarian authorities from the provisions of the Treaty of Peace
concerning disarmament ; on this ground Act No. X I of 1922 enabled
close supervision of associations to be carried on. Section 7 of this
Act states that all associations and all organisations of citizens, under
whatever name, may act only on the basis of rules approved by the
competent Minister. Apart from these regularly approved rules, associations must have no other public or private rules, regulations or
statutes. The activities of an association not based on approved rules
and membership in such an illegal association are punished by
imprisonment and fine, involving the dissolution of the association
concerned and the confiscation of its property for public purposes.
These provisions expressly apply to all associations and therefore
to employers' organisations as well as to trade unions (section 8),
though the enforcement of the Act is in practice hardly likely to
affect the former.
The present legal position of trade associations in Hungary may
be summarised as follows : the formation of new trade unions depends
on the decision of the Minister of the Interior, against which there is
no appeal, and the founding of branches on the permission of the
head of the municipal authorities, against whose decision, however,
an appeal may be made to the Minister of the Interior ; this is known
as the " concession system ". The activity of the unions is subjected
to very close police supervision. It is clear from this review of the
legal situation that the workers' associations, which after the breakup of the old Empire and the establishment of a Republic in Hungary
168
FREEDOM OF ASSOCIATION
had begun to develop rapidly, suffered a considerable set-back in the
course of further developments.
The Hungarian law on associations makes no distinction between
manual and intellectual workers, apart from the special regulations
for "workers' unions ", which only refer to manual workers. The
treatment of trade unions at the hands of the authorities depends
on their politicial character rather than on any other criteria. In
this connection an attempt was made immediately after the fall of the
Communist Government to win over the workers to the peaceful
(" yellow ") organisations, which were rapidly founded. This was
one of the steps in the campaign against the Social-Democratic unions
begun at that time. Under this policy many unions were prevented
from existing by the seizure of their premises, which led to their
dissolution. A Committee was also appointed by Order Z. 62,590
of 1920 (Ministry of the Interior) to investigate their financial
condition ; in addition to official members, this Committee included
representatives of the non-Socialist trade unions. The effects of these
events will appear from the statistics of membership of the free
Hungarian unions :
1913
1914
1915
1916
1917
1918
1919
107,488
43.381
55.338
215,222
721,437
2I2.408 1
1920
I92I
1922
1923
1924
1925
152,441
152,741
202,956
176,401
127,526
125,024
1
This is the figure for the last quarter of 1919 ; in the three preceding quarters it
was 800,936, 1,422,420, and 452,670. These fluctuations were occasioned by the political
events of that year (Communist Government).
Although the destiny of the trade unions in Hungary is very
closely bound up with that of the corresponding political parties,
membership in a union does not involve belonging to a political party.
This would, in fact, be illegal, since the Order of the Ministry of the
Interior Z. 1,508 of 1875 provides that " associations whose objects
are fundamentally different cannot be formed under the same name
with the same 'constitution ; associations for political, charitable,
educational, or economic objects, or formed for purposes of gain
must be constituted separately with separate rules ". Trade unions,
which are naturally economic organisations, are prevented by this
Order from pursuing political aims and all the more from requiring
any political creed on the part of their members. By virtue of the
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IOC
Act on their rules of service (Act XVIII of 1914) employees of the
railways run by mechanical power and serving for public traffic may
not form an association or institution of any kind — not even a cooperative society for welfare purposes — except with the permission
of the Minister of Trade. Further, they may not be members of an
association the aims of which are directed against the country or the
nation, or which, in the opinion of the Minister of Trade, run counter
to the interests of the railway service. An employee who fails within
fifteen days to comply with an order to leave an association covered
by this prohibition is automatically dismissed from the staff.
Public employees are organised in an association divided into
sections according to branches of service, e.g. railways, post office,
central and local administrative officials, etc. ; the sections are in
turn composed of occupational groups, e.g. lawyers, technicians,
accountants, etc. ; the total membership is about 75,000. It is a
non-militant organisation ; a stoppage of work by common consent
among public employees is punished as a crime by severe penalties
under the Hungarian Penal Code!
Employers, including large and small manufacturers and independent merchants, may form free associations called " industrial or
commercial associations " according to the terminology of the Industrial Act of 1884.. According to the wording of the Act, these organisations may include journeymen and factory workers. This rarely
happens in practice ; in 1911, out of 26,143 members of the 53 larger
industrial associations only 216 were not employers. If the rules of
these free associations of industrial and commercial employers comply
with the relevant conditions laid down by the Industrial Act, the
Minister may not, according to law, object to their being constituted.
The larger territorial or trade federations of employers are united in
a special alliance, the National Confederation of Employers' Organisations, for t i e purpose of dealing with labour problems affecting
their trades.
Although the law provides for no special representation of
workers' interests, apart from free organisations, there are two types
of compulsory associations for employers : the chambers of commerce
and industry, and the industrial corporations, similar to the Austrian
industrial societies (Gewerbegenossenschaften).
They call for some
notice here by reason of their effect on the development of free trade
unionism.
170
FREEDOM OF ASSOCIATION
The scope of the Hungarian chambers of commerce and industry
is defined by Act No. VI of 1868. The country is divided into eight
districts. The chambers are compulsory associations representing all
independent manufacturers and merchants. Each chamber has two
sections, one for manufacturers and one for merchants. The members
are elected for five years by the manufacturers and merchants domiciled
in the district who have been in an independent position for at least
one year. Iu addition to representing the interest» of their members,
the chambers are called upon by different laws to exercise various
administrative functions.
The expense of the upkeep of the chambers is covered by contributions from all manufacturers and merchants. The amount of the
contributions is determined by reference to certain taxes and collected
in the same way as the public revenues.
The organisation of the industrial corporations (Gewerbekorporationen) is prescribed by the Industrial Act (Act No. X V I I of 1884).
They must be created in every city and also in all communes or districts in which the number of artisans exceeds one hundred and in
which the formation of a corporation is demanded by two-thirds of
the number. Membership and payment of contributions are obligatory for all artisans domiciled in tne commune or the district. Small
manufacturers in an industry for which no certificate of competency is
required and factory owners are eligible for voluntary membership,
but are under no obligation to join. The contributions are collected in
the same way as the public revenues. The corporations serve as an
industrial authority of first instance (Gewerbebehörde I. Instanz) in
matters concerning the conditions of employment of members and
their employees and apprentices. They have authority to issue
instructions regulating conditions of labour and apprenticeship ;
when approved by the Minister these regulations have the force of
law. Together with workers' representatives the corporation may set
up a conciliation committee presided over by a Government official.
This committee acts as the industrial authority of first instance in
disputes arising out of the contract of employment.
The central federations of trade unions must take the form of
associations and are thus governed by the law on associations and the
competent authorities.
Formerly the Christian-Socialist Federation of Trade Unions and
the Social-Democratic General Council of Trade Unions were loose
federations of delegates from the individual unions and the trade union
HUNGARY
1 II
press. They were recently compelled to become associations of the
component unions. Employers' federations also have the form of
associations, including the National Confederation of Employers'
Organisations, which is composed of various trade associations. The
Federation of Hungarian Manufacturers, on the other hand, is an
association of individual undertakings and persons, divided into
sections corresponding to the branches of industry.
There are special laws providing for compulsory associations or
chambers of barristers, notaries and engineers ; these organisations
exercise administrative functions with reference to their members.
On account of the agricultural character of Hungary, agricultural
committees and chambers occupy a special position. They comprise
both workers' and employers' representatives. Act No. X V I I I of
1920, respecting representation of agricultural interests, provides for
the formation of communal agricultural committees in communes,
district agricultural committees in districts and towns with magistrates, county agricultural committees in counties (Komitaten) and
municipalities, agricultural chambers for groups of counties, and,
finally, a national agricultural chamber for the whole country. Exofficio members of the county agricultural committees are : the ViceGovernor ( Vizegesfian) of the county, the Vice-Governor'sé advisers
for agricultural and labour matters, and the heads of the State authorities subordinate to the Ministry of Agriculture which have their
seat in, or have competence for, the county. Other ex-officio members are the president and the principal officer of legally constituted
agricultural associations and agricultural workers' unions extending
over the whole county. The other members of all these committees
and chambers are elected in five groups. The electors for the com- •
munal committees are divided into the following five electoral divisions :
(1) agricultural workers, domestic servants and all agricultural
employees not covered by any of the other groups ;
(2) persons whose property does not exceed 10 Katastral Joch
(1 Kat. Joch. = 1.42203 English acres);
(3) owners of more than 10 and not more than 30 Katastral
Joch ;
(4) owners of more than 30 and not more than 100 Katastral
Joch :
(5) owners of more than 100 Katastral Joch.
I72
FREEDOM OF ASSOCIATION
Leaseholders and tenants are classified in the same way ; salaried
agricultural employees belong to the electoral division of their
employer. These five electoral divisions elect equal numbers of
members. The members of the district committees, county committees, chambers and national chamber are elected from the committee
members of the corresponding territories.
"
The agricultural representative bodies represent the common
interests of the agricultural population and the agricultural workers
(section 16) and have to propose and carry out the administrative
orders and measures that appear necessary.
The Ministry of Agriculture may entrust the agricultural
committees with the carrying out of any measures connected with
agriculture. In such cases the committees acquire the status of
administrative authorities (section 22).
§ 2. — The Legal Position of Trade Associations
GENERAL
Apart from the Industrial Act (Act No. XVII of 1884), regulating the so-called industrial and commercial associations of employers,
the Act on Rules of Service of Railway Employees (Act No. X V I I I
of 1914), and, finally, the Act respecting the carrying out of certain
provisions of the Treaty of Peace (Act No. X I of 1922), both already
mentioned, voluntarily formed trade associations are governed exclusively by Ministerial Orders. The regulations, so far as they have
not already been discussed, are analysed below.
Ministerial Orders may be withdrawn, modified or repealed by
subsequent Orders. The legal status of associations in Hungary is
thus very uncertain. They are not protected by the Constitution and
only slightly by general legislation, and receive no support from the
courts as far as their constitution and their activities are concerned.
In addition to this precarious position, there is also the fact
that they lack recognition in civil law. In spite of numerous attempts,
the body of civil law has never been codified in Hungary. The
position of trade unions in civil law is therefore not yet legally
regulated ; it is rather determined by the decisions of civil courts.
Legal personality is granted to regularly formed associations ; trade
unions, employers' associations, and federations of both categories
are all corporate bodies.
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I73
FREEDOM OF MEMBERSHIP
There are no regulations in Hungary protecting the freedom
to join an association, but freedom not to join is guaranteed.
Section 152 of the Industrial Act of 1884 expressly states that no
manufacturer, assistant, or industrial worker shall be compelled to
belong to an industrial or commercial association A Ministerial
Decree of 1906 on the founding of branches of trade unions also
formulates the condition that the recruiting of members shall not
be carried out by means of threats or force.
While no penalties are provided for compulsion of this kind, freedom of adherence, abstention and withdrawal from agreements
within the meaning of the Industrial Act of 1884 is expressly protected
with penalties for compulsion, as has already been pointed out.
CONDITIONS OF ADMISSION
The rules of the association generally specify the conditions on
which persons are admitted to membership : in many respects,
however, this is also regulated not by legislation, but by Government
Orders.
The Ministerial Decree Z. 122,000 of 1906 on the formation of
branches of trade unions, already referred to, limits membership to
the trades expressly enumerated in the rules. Although according
to the general law of association (Order of the Minister of the Interior
Z. 77,000 of 1922) only Hungarian citizens are eligible for membership in any association, in virtue of Order of the Minister of the
Interior Z. 36,700 of 1923, this does not apply to trade associations
of employers or workers. Foreigners who " are continuously and
actually occupied in the same or related industrial work " may be
members of Hungarian trade unions provided the same right is
granted to Hungarians in their respective countries. Such foreign
members, however, are only entitled to participate in welfare institutions and financial assistance. They are excluded from other rights
of membership, especially from eligibility for office, except in associations, and therefore also workers' unions, exclusively devoted to
science, literature or sport ; in these, foreigners may be granted
the same rights of membership as Hungarians with the consent of
the Minister of the Interior (Order Z. 77,000 of 1922 and Z. 9,900
of 1923).
174
FREEDOM OF ASSOCIATION
Minors are not allowed to be members of any associations except
with the consent of their parents or guardians. Exceptions are made
in the case of sports associations and young people's associations,
which do not require such consent. Minors who are apprentices
may not form any associations nor be members of them. There is an
exception to this rule also in favour of apprentices' associations and
educational and other young people's associations organised in
connection with training schools and under the direction of the head
of the school or his representative (Proclamations of the Minister of
Commerce Z. 5,554 of 1914 and Z. 101,213 of 1918).
The only regulation as to domicile is that branch associations may
be formed only in places where at least twenty members of the
central association are permanently resident (Order of the Minister
of the Interior Z. 77,000 of 1922).
FOUNDING, EXISTENCE, AND DISSOLUTION
The formal condition for the founding of a trade union or of a
branch is the approval of the Minister of the Interior or that of the
municipal authorities respectively. This approval is preliminary to
the legal existence of the association. The founders of an association
are at present not legally entitled to such approval even though all
other conditions are fulfilled. On the contrary, the principle of
prohibition of the founding of new associations, introduced during
the war (Government Order Z. 5,479 of 1914) is still adopted as
the rule, exceptions to which may be granted by the Minister of the
Interior only in the interest of the State (Order Z. 5,084 of 1919
and Order of the Minister of the Interior Z. 77,000 of 1922). The
Minister is free to interpret the public interest ; the head of a
municipal authority, however, as regards the founding of branches
is bound to refuse approval only when certain specified reasons
indicated in Order of the Minister of the Interior Z. 115,112 of 1923
are present.
Approval of the formation of commercial and industrial associations is granted by the Minister of Commerce and not by the Minister
of the Interior. His power, however, is less exclusive than that of the
Minister of the Interior and his approval is not restricted to exceptional
cases. As in the case of the founding of branches of trade unions,
the conditions under which approval may not be refused are specified,
i.e. when the rules submitted comply with certain regulations.
HUNGARY
I
75
Under sections 150 and 151 of the Industrial Act of 1884 the rules
must contain clauses covering the conditions of membership, rights
and obligations of members, contributions, administration of the
association's property, the committee, dissolutions of the association,
and the disposal of its property ; they must, also " contain no clause
limiting or impeding the exercise of the rights guaranteed to members
by the Industrial Act ".
Similarly, the rules of the freely constituted trade unions must
comply with prescribed regulations, if the exceptional approval by
the Minister of the Interior is to be obtained.
Order Z. 77,000 of 1922, already mentioned above, supplemented by Orders Z. 9,900 and 36,700 of 1923, gives the legal
conditions with which the rules must comply. The great importance
of this Order for the trade union movement calls for a brief survey
of its contents.
The first part of the Order deals under four headings with the
conditions to which the rules must apply : (1) general, (2) membership, (3) organisation, (4) miscellaneous.
In the general category the rules must state (1) name, address,
field of activity, language, seal, and badge, (2) object) (3) methods,
(4) property and administration. Respecting membership the rules
must state (5.) the various categories, (6) conditions of membership,
(7) method of joining, (8) rights and obligations, (9) cessation of
membership through death, resignation, expulsion and exclusion.
Respecting organisation, the rules must cover all questions concerning the general meeting, the committee, method of auditing,
and the staff, e.g. composition, competence, meetings, procedure,
methods of voting. In this connection the Order prescribes in great
detail the provisions to be incorporated in the rules.
Of the miscellaneous clauses the most important is that alteration of the rules and other measures affecting the main activity of
the association must first be submitted for approval to the Minister
of the Interior.
The Order carefully prescribes not only the drawing up of the
rules to be submitted by the founders, but also, in the following
sections, the procedure to be followed in submitting them and the
method of dealing with them to be followed by the authorities. These
detailed provisions are all calculated to define clearly and precisely
the limits of the activity of workers' unions. Finally, the rules must
176
FREEDOM OF ASSOCIATION
invariably contain the following clause, the wording of which is laid
down in Order of the Minister of the Interior Z. 1505 of 1875 :
If the association departs from the object or procedure laid down in
the rules, enters upon seditious activities, or commits a grave offence
against public safety and order or threatens the material interests of its
members, the Minister of the Interior may order an investigation of it,
suspend its activity or permanently dissolve it.
To facilitate this momentous supervision of trade unions, the
rules must in each case be deposited in several copies with the several
supervising authorities ; the latter are instructed to keep registers
showing the names, addresses, and lists of officials of the associations.
Both these measures are simply means of supervision. Neither
registration nor deposit of the rules has any legal effect.
Approval of the rules is also subject to the important negative
condition that they must contain no provision for decisions to stop
work or the organisation of stoppages of work, or for granting assistance to strikers. The funds accruing from the contributions must
not be applied to such objects. The unions were thus compelled to
raise the necessary funds for these purposes by devious means, e.g.
for libraries, running of trade union journals, social purposes, etc.
These obligations were defined outside the rules. Since such special
regulations affect the material interests of the members, the Minister
of the Interior took occasion in Order Z. 9,829 of 1907 to order the
authorities not to permit such special arrangements and to see that
no money was collected from members of unions apart from the dues
provided for in the rules. In the case of branches of trade unions
the practice described above may even involve.compulsory dissolution.
This extensive State supervision of associations in Hungary has
in practice had very little effect on employers' associations, but has
been distinctly felt by workers' unions.
The supervision is carried out by the administrative and police
authorities. Government Order Z. 6,622/MP of 1920 provides the
practical means for State supervision. According to it, the competent
police authorities must be notified in writing of every meeting at
least three days in advance with a statement of the subject, place, and
time of the meeting. They may forbid the meeting within twentyfour hours in the interest of public order, peace, and safety ; they
may also be present at the meeting and disperse it for the same reasons.
if necessary with the help of force. Failure to give notice of the
HUNGARY
I77
meeting is not only punished with fine and imprisonment as a
misdemeanour, but may also involve the dissolution of the association.
The consent of the competent Minister is required for voluntary
dissolution, including amalgamation. Branches may not be dissolved
by the central association. If they propose to dissolve themselves,
the resolution must be brought to the knowledge of the Minister of
the Interior through.the municipal officials. The assets and liabilities
of the branch are ipso jure transferred to the central association.
Suspension and compulsory dissolution are in general in the
competence of the Minister only. The municipal authorities may
under Order Z. 122,000 of 1906 proceed independently to suspend
branches of trade unions if " there is certain evidence that the branch
is pursuing a policy which conflicts with the rules and threatens
the interests of the State or of the members ".
§ 3. — Activities of Trade Associations
INTERNAL
As to the actual scope of the cultural or industrial activities of
trade unions for the benefit of their members( there is little reliable
information. Asurvey of-the-expenditure .of. the free. trade unions _ ._ _.
for purposes of mutual aid shows that their principal activity of a
financial nature is concentrated on the work of unemployment relief
During the period 1901 to 1921, out of a total expenditure, under
the rules of the organisations, of 26,209,790 crowns, 13,067,462 crowns
went to unemployment benefits.
The expenditure for unemployment relief in subsequent years
was as follows :
Yfar
Gold crowns
1922
f-923
77.367
73.204
Year
' I924
I925
358.422
715,682
Other outlay is for travelling and removal expenses, funeral
benefit, sickness and maternity benefit( and support of widows and
orphans.
The Hungarian trade unions are very active in the matter of
procuring employment, as appears from the following table :
Freedom of Association
12
i78
FREEDOM OF ASSOCIATION
Year
1923
1924
I925
Number of persons
seeking employment
Number engaged
through the
unions
95»5o6
77>464
65.301
44.450
33,945
57,123
Percentage
68.3
57-3
59-4
The economic activities of the unions consist in the maintenance
of highly developed consumers' co-operative societies, the most
important of which is the Allgemeine Konsumgenossenschaft.
They
also run several co-operative production societies, and have recently
founded a joint stock savings bank and a workers' insurance company.
The unions also render noteworthy assistance in technical and
general education. Expenditure of the unions affiliated with the
Central Council has been as follows :
1922
1924
1923
Paper crowns
Teaching and library
Trade union press . .
Legal assistance . . .
4,IOI,000
7,062,000
I,602,000
65,683,000
55.997.000
40,381,000
606,723,000
652,462,000
328,130,000
The number of scientific lectures arranged in Budapest by the
Trade Union Council rose from 100 in 1920 to 341 in 1921 and 367
in 1922. Visits to museums and picture galleries are arranged ;
special attention is given to the education of young persons ; libraries,
sports grounds, etc., are maintained. Free legal assistance is also
provided by the unions for their members.
For the period 1917 to 1920, the expenditure of the unions
affiliated with the Central Council was as follows :
Pa"er crowns
Teaching and library
1,858,851
Trade union press
2,492,323
Legal assistance
1,558,862
In most of these spheres the employers' associations or the
industrial corporations also strive to be active, by establishing
industrial educational institutions, arranging for continuation courses,
employment exchanges, libraries, shelters, etc.
HUNGARY
I79
PARTICIPATION IN STATE ACTIVITIES AND P U B U C L I F E
No legal provision is made for co-operation in legislation by the
trade unions. It is customary, however, for the competent Ministers
to submit Bills, and occasionally also drafts of Orders, which affect
the economic interests of particular trades, to the representatives of
the employers, as well as to the trade unions, for consideration.
More important is the part played by the trade unions in the
constitution of certain official bodies, particularly the industrial courts
and the agricultural representative bodies.
Order Z. a;i8o of 1920 on jurisdiction in labour matters lays
down that in certain types of disputes arising out of the contract of
employment the first proceedings shall be heard before a court
attended by assessors representing employers and workers. These
assessors are designated by those associations of employers and workers which appear in a list compiled by the Minister of Commerce for
this purpose. This list, and any changes in it, must be published
periodically in the official journal. The list contains only associations which carry out official or economic activities of public interest
in pursuance of an Act or in virtue of rules authorised by Government officials. It also includes all employers' and workers' associations which have fulfilled the necessary conditions. Each asso=
ciation or corporation included in the list appoints four and in some
cases a larger number of assessors, either for all the industrial courts
of the country or for the local industrial court, according to the scope
of the organisation.
Under Act No. X V I I I of 1920, relating to agricultural representation, the presidents and principal officers of the agricultural
associations and agricultural workers' associations representing whole
counties are ex-officio members of the County Agricultural Committee. Similarly,, the president and one other official of agricultural
associations and agricultural workers' iassociations representing a
territory not less than a municipality are ex-efficio members of the
agricultural chambers representing several municipalities. Finally,
the presidents and directors of these agricultural associations of
employers and workers representing the whole country, which are
designated for this purpose by the Minister of Agriculture, on the
advice of the National Chamber of Agriculture, are ex-officio members
of the National Chamber of Agriculture.
18o
FREEDOM OF ASSOCIATION
PARTICIPATION IN DETERMINING AND ENFORCING CONDITIONS
OF LABOUR
In Hungary, collective agreements may be concluded between
trade unions and employers' associations. The term " collective
agreement " is, however, not defined by law, and the responsibility
of the trade unions arising therefrom appears doubtful. In the
absence of any special legal regulation of the responsibility of the
association for agreements concluded by its representatives, procedure
is governed by the provisions of civil law relating to representation,
as in the case of civil responsibility for tortious actions.
The reluctance of the employers' associations to enter into collective agreements and the limited scope in many respects of the trade
unions have prevented collective agreements in Hungary from developing into an effective legal institution. Only very rarely do the parties
go to court on a question arising out of collective agreements, and
consequently no legal practice has grown up in this field. The parties
to a collective agreement who really intend to carry out its terms
more usually institute joint conciliation committees for settling
disputes arising out of the terms of the agreement and for its uniform
application. A good example of this is the system in use in the
printing and allied trades.
There is likewise hardly any legal provision for the participation
of trade unions in conciliation. In practice, however, the unions
exert a certain influence in the sphere of conciliation, as in the case
mentioned above. The only legal regulation is section 163 of the
Industrial Act of 1884, which empowers the industrial authority who
learns of an " agreement " within the meaning of that section, to
appoint ad hoc conciliation committees composed of six employers
and six workers from the industry concerned. In industries in which
industrial corporations exist, the latter are entrusted with the formation of the conciliation committee, which must include six independent industrialists and six journeymen. If the negotiations of these
committees are unsuccessful, the Minister of Commerce may, under
section 35 of Act No. X X V I I I of 1893' (Factory Inspection Act),
instruct the factory inspector to constitute the conciliation committee
and bring about the peaceful settlement of the dispute. The increased
necessity for avoiding far-reaching industrial disputes in the postwar period gave rise to Order Z. 6,405 of 3 September 1923, which
provides for the appointment of professional conciliators, according
HUNGARY
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to the German system. When a wages dispute is reported by one side
only, it is the duty of these officials to attempt conciliation ; if the
other side joins in the conciliation proceedings, a conciliation committee is formed from representatives of both parties, with the conciliator
presiding. The trade associations may in such cases choose their
representatives.
COLLECTIVE D I S P U T E S
In discussing the part played by trade associations in labour disputes, it is necessary to bear in mind that the organisation of strikes
or lockouts may not be included among the objects of the association
specified in its rules. Such procedure is forbidden in Hungary under
the penalty of dissolution of the association by the authorities. It
is clear, however, that the trade associations do actually engage in
such activities from the fact that according to the official Hungarian
statistics the number of strikes and lockouts organised by the
employers' and workers' associations during the period 1Q05-1912
amounted to about half of all collective disputes. Since the trade
unions may be prevented by law from publishing information of such
irregular activities, these official statistics, which ceased after 1912,
may be not altogether reliable. According to the data of the Trade
.Union Council there were in 1922 360 strikes and 40 lockouts in the iron
industry, and in 1923 306 strikes and 163 lockouts involving 307 works
and 66,779 participants ; in 1924 the numbers fell to 247 strikes and
41 lockouts involving 196 works and 38,458 participants. While the
trade unions have thus no legal right to organise an industrial dispute,
the legal position of individuals in respect of freedom to act collectively in such disputes is secured in principle by the Industrial
Acts of 1872 and 1884, which lay down the principle of freedom of
association. There are, however, many limitations to this right,
imposed by the Penal Code and also by administrative' law and police
regulations.
The Hungarian Penal Code (Act No. V of 1878) in sections
^IS-^n provides penalties of imprisonment up to six months for the
offence of acts of violence against private persons, i.e. for any person
who
for the purpose of procuring an increase or decrease of wages carries out
acts of violence against an employer or a worker or abuses him by word
or deed or threatens him with violence.
The same penalty is also provided for any persons who assemble in
l82
FREEDOM OF ASSOCIATION
front of factories, workshops or workplaces where work is going on, or
before the dwelling or place of residence of the employer or manager in
order to hinder the beginning or continuation of work or persuade
workers to leave off working.
Mere picketing as such is subject to n o penalty.
I n cases where the stricter provisions of the Penal Code do not
apply, resort is h a d to section 164 of the Industrial A c t of 1884, which
provides penalties of fine and imprisonment for a n y person who
for the purpose of bringing about, extending or enforcing agreements
and compacts as defined in section 162 hinders or seeks to hinder by
threats or ill-treatment the employers and workers from exercising their
free will.
T h e s e legal t e x t s are similar to the corresponding Austrian
legislation, b u t in the matter of agricultural associations, which is
particularly important for H u n g a r y as an agrarian country, noteworthy special provisions are laid down in sections 65 and 66 of Act
N o . I I of 1898 concerning the conditions of service of agricultural
workers and in section 57 of Act N o . XL,V of 1907 concerning the
conditions of service of agricultural servants.
T h e first of these Acts provides penalties of fine and imprisonm e n t up to 60 days for any person w h o , in the course of organising
or promoting combination in agriculture,
hinders or seeks to hinder the workers, day labourers or servants from
exercising their free will ; or for the same purpose spreads false reports
among hired workers, collects money, holds meetings with them, allows
premises to be used or such meetings or takes part therein ; or for this
reason threatens or abuses by word or deed hired workers, day labourers
or servants or such as desire to be hired ; or publicly praises workers
who have broken their contract of service and collects subscriptions for
•them.
T h e second Act further provides penalties of fine and imprisonm e n t u p t o 60 days for a n y person
who abuses by word or deed or threatens hired servants or such as
are willing to be hired, for this reason, or incites or induces hired servants
to force the farmer, by refusal to carry out the duties they undertook,
to grant concessions. The servant, however, who, according to an agreement, refuses for such a reason to fulfil his contract commits an offence
and shall be liable to imprisonment up to 10 days and to a fine. This
shall not affect the farmer's right to dissolve, without preliminary notice,
the contract of service of the servant sentenced for such an offence and to
claim damages.
Section 60 of Act N o . X L V of 1907 adds :
Should the farmer be willing to reinstate the servant who has been
sentenced but is already willing to carry out his contract, then the
HUNGARY
183
authorities may, on the joint application of the farmer and the servant,
consider the circumstances and suspend the proceedings in respect of the
offence or repeal the execution of the penalty already imposed.
A u o t h e r occupational group for which there are special regulations respecting the right of combination is t h a t of railwaymen, w h o ,
under Act N o . X L V I I of .1914 (Dienstpragmatik),
are to be regarded
as public employees for the purposes of the interpretation of the
Penal Code. U n d e r section 480 of the Penal Code a public
employee w h o neglects his official
duties is guilty of a
misdemeanour, but under section 481 he is guilty of a crime
if such neglect is the result of an agreement between two or more
public employees. T h e A c t of 1914 makes it, moreover, a breach of
discipline involving immediate dismissal to
take part in a strike or to neglect duty collectively for the purpose of
impeding traffic or bringing it to a standstill (passive resistance) or
to excite, encourage or instigate such behaviour.
F o r practical purposes the police have a convenient instrument
for limiting free collective activities in the Ministerial Order mentioned above, providing for the breaking u p of meetings a t which
matters connected with the organising of a strike are being discussed.
A Ministerial Decree of 1897 (No. 35,100), concerning the collection
of subscriptions, may be invoked t o prevent the collection of money
a m o n g workers for collective purposes. T h e Regulations of 1895
concerning deportation, has frequently made it possible to get rid of
alien elements involved in disputes. A s it is n o longer possible in
H u n g a r y to use the pre-war method of military mobilisation of railwaym e n in case of a strike, there is for the railways and other industries of
public importance, a National Organisation for the Protection of
Labour, under t h e Ministry of the Interior principally composed of
public employees, for the purpose of replacing striking workers and
preventing possible acts of sabotage.
CONCLUSION
The right of association in Hungary is not based on legislation,
but on a system of Ministerial Orders. It is, therefore, without any
legislative or constitutional guarantee, but depends entirely on the
discretionary powers of the Government.
The position at present is in general the same as at the end of
the war, except that it has been defined in greater detail by à
number of Ministerial Orders. The prohibition of associations which
was in force during the war no longer exists, but there is no freedom to
form associations, except under the " concession system ", which
applies to all associations, with special provisions for trade unions.
The formation of an association in Hungary requires the approval
of the competent Minister, which is given only in cases which are
"deserving of special consideration in the public interest". The
decision is left entirely to the discretion of the Minister. The same
applies to the founding of branches of existing associations, except
that the approval is granted by the head of the municipal authorities
and may be refused only under certain circumstances defined by
Orders, and that an appeal to the Minister against the decision is
allowed.
The contents of the rules and regulations of the association are
regulated by a special Order. They must include express mention of
the right of the Minister to carry out an investigation and to proceed
to suspend and dissolve the association if it departs from the objects
laid down in the rules, endangers the property interests of its members, comes in conflict with the public order and safety, or pursues
a policy which may cause danger to the State. The rules must
contain no provision for the declaration or organisation of a strike or
for the granting of assistance to strikers.
Under these circumstances the enforcement of the rules involves
a far-reaching supervision of the work of the associations on the
part of the authorities. Such supervision is also specially ordained
by Act No. X I of 1922 concerning the enforcement of the provisions
HUNGARY
'
1
^5
of the Treaty of Peace relating to disarmament. Supervision is
assisted by the regulations contained in an Order concerning notice,
approval and supervision of meetings. Trade unions were, moreover,
made subject to special regulations by an Order of 1898, giving
the authorities the right not only to attend meetings at any time but
also to enter premises and inspect minutes of proceedings, documents;
and financial records.
Concerning membership, the Hungarian law contains the special
provision that foreigners may participate in trade unions only to a
limited extent (in welfare institutions, etc.) and then only on condition of reciprocity. In other matters trade unions are in the same
position as other associations, which have no legal basis either in
public or in civil law. Legal personality has so far been recognised
by the courts only in the case of associations and federations of
employers and workers regularly formed and approved.
As in Austria, compulsory trade associations organised by law
are very important. This is especially so in agriculture, where the
workers and employers are represented in common organisations to
protect the needs of the agricultural population and agricultural
workers.
While the compulsory organisations have considerable scope for
activity, free trade associations in Hungary have legally a comparatively small share in the collective regulation of conditions of labour,
the settlement of disputes or the tasks of social legislation and
administration. Participation in industrial disputes is forbidden to
trade unions by the provision already mentioned that the organisation
of strikes, etc., may not appear in the rules as one of the objects
of the association.
Freedom of combination (as defined in Austrian law x) is,
however, guaranteed to individuals by the Industrial Acts of 1872 and
1884. But this right to come to an agreement for the purpose of
exerting an organised influence on conditions of work is subject to
various limitations, based partly on the Penal Code and partly, on the
administrative and police regulations. This is particularly so in the
case of agricultural workers and railwaymen.
1
vSee p . 113.
BIBLIOGRAPHY
The sources principally consulted in the compilation of this article,
apart from monographs dealing with the history of individual unions, are
as follows :
FERENCZI, Imre. Munkásaink
neti Kialakulásában.
1906.
GAL, Beno.
A szakszervezetek-
K E N E D I , Dr. Laszlo.
TONEIXI, Sandor.
mükodése
Munkaviszályok
RENYI, Jozsef. A gyülehezeti
köreböl. Budapest, 1900.
Joga es Mozgalina
a háboru
jóg tannimâny
Törte-
idején.
Magyarorszagon.
A Magyar Közgazdasagi
VITA, Emil. Egyesületi
kir.
Szakszervezeti
a rendärl
1915.
közigazgatas
Erdekképviseletek,
1914.
jóg. Budapest, 1907.
Ipari Eredekképviseletek
Magyarorzágon
Központi Stdtistikai Hivatal, 1921.
içn-ben
Kiadja
a
Magy-
Comprehensive reports of the Hungarian Trade Union Council.
The annual reports of the Royal Hungarian Police Department,
containing much information, which appeared up to 1914 : A Magyar
Socialistikus
Munkasmozgalmak.
Annual reports of the Royal Hungarian Factory Inspectors.
Annual volumes of Szakservezeti
Ertesitö.
Report on the draft for a Hungarian General Ilegal Code, Vol. I, 1901.
CZECHOSLOVAK REPUBLIC
Since the Czechoslovak
Republic
consists exclusively
— with
the exception of a small area formerly part of Germany — of territories which belonged to the old Austro-Hungarian
Monarchy,
the
history of trade combination and legislation on the subject before IQI8
is identical with that given for " Kingdoms
and States
represented
in the Imperial Parliament " {page 103) or the " Territories of the
Hungarian
Crown"
{page 125).
The separate report for the
Czechoslovak
Republic
which
follows
therefore
deals with
the
evolution of trade combination since içi8
only.
§ 1. — Development since 1918
LEGAL BASES
On the establishment of the Czechoslovak Republic all the Acts
and Orders of Austria, H u n g a r y , a n d G e r m a n y t h e n i n force within
its territories were taken over, under section 2 of the Act of 28 October 1918 ( G . V . S . 1 , N o . n ) . E x c e p t where they have been repealed
by subsequent Czechoslovak legislation, therefore, these measures are
still in force. T h e law so taken over included that affecting combination for trade purposes. T h i s h a s already been described in t h e
studies on the right of combination in A u s t r i a - H u n g a r y and in
Germany, to which reference should be made.
E v e n before the creation of the new Republic, national divisions
had appeared within the labour movement of the Czechoslovak territories, leading t o t h e creation of a National-Socialist trade union
movement side by side w i t h t h e purely Social-Democratic unions 2 .
On the birth of the Republic there was sharp conflict between the
trade unions of different views, in which the more recent Christian-
1
2
G.V.S. = Collection of Acts and Orders.
See p. 191.
188
FREEDOM OF ASSOCIATION
Social movement also took part. T r a d e union compulsion in all its
forms was much discussed. T h e frequent stoppages and disturbances
of work resulting therefrom led t h e G o v e r n m e n t to set u p workers'
arbitration courts to deal with " disputes due to displacement from
employment " by Order of 19 December 1919 ( G . V . S . , N o . 662).
These joint arbitration courts, under the chairmanship of a
professional judge, were established at the seat of each district court.
Territorial jurisdiction was determined by the situation of the undert a k i n g in which a worker subjected to unlawful trade union pressure
had worked or wished to work.
T h e court had first to establish whether such coercion did in fact
exist. I t m i g h t take the form of pressure exerted by a trade union to
compel the discharge or prevent the engagement of a worker who
would n o t join the organisation in question or would not leave his
own organisation. In such cases, if n o compromise was reached, t h e
court m i g h t award the injured worker damages equal to t h e wages
lost and refer him to the ordinary courts for any claim to further
damages. Section 6 of the Order carefully demarcated the liability of
the trade union federation, the craft union,, the local body, or the
trade union official responsible. T h e trade union a n d the employer
were bound to allow or to secure the further employment or engagem e n t of the worker in question.
T h e workers' arbitration courts w e r e in operation for only a year
and a half, for they were abolished by the Act of 12 A u g u s t 1921
( G . V . S . , N o . 309) " t o prohibit coercion and to safeguard the r i g h t
of assembly ".
T h i s so-called " anti-terrorisation Act ", which
supplemented the Criminal Code and repealed the relevant provisions
of Austrian 1 and H u n g a r i a n 2 legislation on combination, gave a new
definition of " coercion ", which is punishable with imprisonment as
a contravention of the Act. I t is deemed to be coercion if any person :
(a)
(6)
maltreats another person or his relatives ;
" injures him or threatens him with injury to his person,
liberty, honour, property, or means of livelihood " ;
(c)
1
" takes advantage of any imminent distress
another " ;
threatening
Section 3 of the Combination Act of 7 April 1870 (R.G.B1., No. 43).
Section 177 of Act No. V of 1878 and section 164 of Act No. XVIT
of 1884.
2
CZECHOSLOVAK
(d)
REPUBLIC
i£o
" makes use of his position as . . . employer " to compel
another to perform, omit, or suffer any action.
That this definition >f coercion was intended to cover infringements of the right to work is clear both from the simultaneous abolition of the workers' arbitration courts and from section i, subsection 2,
of the Act, which expressly states that a strike or lockout shall not
be deemed to be an injury the causing or threatening of which
constitutes coercion.
In the same sentence, however, the legislator excepted from this
provision, which indirectly admits the right to strike, militant trade
union measures " directed against individual workers from national,
religious, or political motives ". These come under the definition of
criminal coercion and may also in some cases be punishable under more
severe provisions of criminal law (e.g. as public violence, extortion).
Both the protection of the worker's liberty by the workers'
arbitration courts and the new definition of the offence of coercion,
with the special exception for strikes and lockouts, mark an advance
on the legal position taken over at the creation of the Republic. They
follow on the lines of the principles concerning the right to form
associations, the rights of assembly and combination as laid down in
Articles 113 and 114 of the Constitution established by the Act of
20 February 1920 (G.V.S., No. 121).
Article 113 guarantees the right " to form associations ", together
with freedom of the press and of assembly. In order further to strengthen the guarantee of this constitutional right to form associations,
the constitutional charter adds in a special paragraph :
An association may be dissolved only if its activity constitutes a
breacli of the Criminal Code or of public peace and order.
Article 114 guarantees the " right of combination " for the protection and maintenance of employment and economic conditions.
The right so granted obviously goes further than that recognised by
the Austrian Combination Act of 7 April 1870 (R.G.B1., No. 43). The
Constitution secures not only for the individual but also for the trade
combination the right to defend economic and class interests by
uniting in an association. Article 114, paragraph 2, provides a
special guarantee of the right to combine for trade purposes ; it
prohibits ". any action by individuals or associations which constitute
a deliberate infringement of this right ".
These constitutional guarantees imply that the right to combine
ICO
FREEDOM OF ASSOCIATION
for trade purposes can be restricted only by an a m e n d m e n t of the
Constitution. Such a m e n d m e n t is subject to the conditions laid down
in the Constitution itself (Articles 33, 42 a n d 54) : a three-fifths
majority of the Chamber of Deputies and of the Senate, identical
resolutions by both Houses, a n d the t e x t of acceptance as constitutional by the Constitutional Court.
A l t h o u g h the right to " combine for trade purposes
(pravo
spolcovací = right of association) is t h u s secured in the Czechoslovak Republic by special constitutional guarantees, there has been
n o special legislative regulation of trade combination, which is subject
simply to the general law of associations (pravo spolkové).
Article 113 of the Constitution, it is true, foreshadows the enactment of a
law on the exercise of the right to form associations and the right of
assembly, b u t a s no such law has yet been enacted, the legislation
governing associations — and therefore trade associations also — in
Czechoslovakia is still the Austrian Associations Act of 15 November 1867 ( R . G . B L , N o . 134) or, for the areas which were formerly
H u n g a r i a n , t h e collection of special Orders (1873, 1875, and 1906)
regulating the right to form associations in H u n g a r y before October 1918. Consequently the formation of an association in the districts
formerly belonging to Austria requires merely " non-prohibition " by
the authority for associations and in Slovakia and Sub-Carpathian
Russia a special Ministerial authorisation.
T h i s legislative regulation of the right of trade combination can
at any time be amended or repealed — according to Article 113 of
the Constitution by an ordinary Act — without disturbing the basic
rights which are guaranteed by the Constitution 1.
A p a r t from the possibility of an a m e n d m e n t of the Constitution,
these fundamental rights may be temporarily restricted by " emergency orders " only during a war or if within t h e country events
occur which in a h i g h degree imperil the integrity of the State, t h e
republican form of government, or public peace and order. T h i s is
stated in Article 113 of the Constitution and governed by the Act of
14 April 1920 ( G . V . S . , No. 300), section 8 of which runs as follows :
Associations and branch associations — with the exception of profitmaking associations — may be subjected to special supervision by the
authorities or to special conditions ; their activities may be suspended
and the creation of new associations and branch associations may be made
dependent on authorisation by the competent authorities.
1
Cf. section 1 of the Act of 29 Feb. T920 (G.V.S., No. 21).
ICI
CZECHOSLOVAK REPUBLIC
The Act lays down various conditions for the issue and repeal
of such exceptional orders.
PRESENT STATE OF DEVELOPMENT OF T R A D E ASSOCIATIONS
Workers
The national divisions within the trade union movement already
mentioned, which had appeared in the territories now forming the
Czechoslovak Republic long before the war 1 , are still to be found.
Both the Czech and the German workers have built up comprehensive
trade union organisations of varying political colour. The Polish and
Magyar workers have not f01 med separate trade unions, but have
joined those of other nationalities or the Communist unions.
In addition to the division of the movement by national differences
there are political distinctions, exemplified particularly in the splitting off of a Communist trade union movement since 1922. This
division of the radical elements from the more moderate Social-Democrats and a certain accession of strength to, the Christian-Social unions
clearly show the close relation between trade unionism and politics
which exists in Czechoslovakia also.
The establishment of the republican form of government, together
with the industrial boom which set in soon after the end of the .war,
led to rapid and marked expansion of the trade unions'. In 1922,
owing to the divisions which have been mentioned and to economic
and financial difficulties connected with unemployment, they suffered
a perceptible but comparatively slight setback. These developments
are shown in the following figures of the total number of workers
organised in trade unions :
i9 T 3
i9!9
1920
1921
318,000
1,306,000
1,817,000
1,976,923
1
1922
1923
1924
1925
. . . . .
1,712,934
1,627,506
1,669,456
1,693,891
1
Covering only Bohemia, Moravia, and Silesia ; but the number of trade unionists
in Slovakia at that time cannot be estimated at a very high figure.
At the peak of trade union membership, in 1921, trade unionists
represented 50.25 per cent, of the total number of workers in
Czechoslovakia.
1
See p . 120.
FREEDOM OF ASSOCIATION
192
The strength and activities of the Czechoslovak trade unions
which are affiliated in central federations are indicated by the following summary.
1. Federation of Czechoslovak Trade Unions (Odborové sdruzerii ceskoslovenské). — Membership at the end of 1925, 347,923.
This is the independent Social-Democratic trade union organisation of
the Czech and Slovak nation which was set up in 1897 after the
separation from the Vienna Trade Union Committee. The majority
of the Polish workers belong to it. At the end of 1924 (with 343,750
members) the Federation included 43 subgroups with 3,153 local
unions and 513 pay-offices. It is affiliated to the International Federation of Trade Unions of Amsterdam. In 1924 members' contributions
amounted to 26 million koruny and expenditure to about 25 million
koruny. More than 8 million koruny was spent on' benefits to members, including 3 million koruny to 15,160 unemployed, 2 million
koruny to 6,324 strikers, and 650,000 koruny to 1,145 locked-out
members. Among other expenditure may be mentioned 3.2 million
koruny for trade union journals, 1.25 million koruny for propaganda,
congresses and conferences, and 520,000 koruny for education and
libraries. The trade union journals published included 52 in Czech
(circulation of 290,000), 12 in German (37,000), 5 in Hungarian
(10,000), and 3 in Polish (7,000).
2. Central Federation of National-Socialist Trade Unions (Ceskoslovenská obec delnická). — Membership at the end of 1925,
307,152. This trade union organisation, also founded towards the
end of the nineteenth century, differs in policy from the preceding one
in that it rejects internationalism and bases itself on Czech nationalism. At the end of 1924 it included 50 unions and 2,932 local groups
(with 306,000 members). Members' contributions amounted to
18.5 million koruny and the total expenditure to 18 million koruny,
of which 500,000 koruny went to strike benefit, 870,000 koruny to
unemployment benefit, and 2.6 million koruny to trade union journals.
In that year the Federation took part in 92S wage movements and
28 strikes and was involved in 5 lockouts. The activities of the
Federation are indicated by the existence of 34 employment bureaux,
864 workers' libraries (with a total of 100,000 volumes), 36 cooperative societies, and 50 journals (with a total circulation of
300,000).
3.
Central Trade Union Committee of the German Trade Union
103
CZECHOSLOVAK REPUBLIC
Federation (Zentralgewerkschaftskommission des deutschen Gewerkschaftsbundes) \ — Membership at the end of 1925, 226,911. This,
the third in size of the federations, came into being only on the
establishment of the Czechoslovak Republic, since previously the
German workers in the Sudeten provinces had belonged to the Vienna
trade union federation. It included 23 unions. Though not affiliated
to the Amsterdam International it followed its principles. According
to statistics for the years 1920-1923 presented to the second ordinary
Trade Union Congress held at Karlsbad in 1924, members' contributions during these four years amounted to about 98 million koruny.
Expenditure included 18 million on unemployment benefit, :ibont
5 million in strike and lockout pay, n . 5 million for education,
4.5 million for the resistance fund.
During the same period 560 strikes (120,000 workers), 68 lockouts (70,000 workers), and 4,392 wage movements (1,122,000
workers) took place within the German Federation's sphere of
operations ; 3,678 collective agreements (1,287,000 workers) were
concluded.
4. International Trade Union League (Mezinárodní vseodborovy svaz). — Membership at the end of 1925, 201,035. This is
the federation of Communist unions which follow the international
trade union policy of Moscow. In the financial year 1924 its income
amounted to 10 million koruny, of which 5.3 million were members'
contributions. The expenditure of 9 millions included 2 million for
benefits to members, 1,250,000 for educational purposes, and 620,500
for propaganda. In that year 61,000 members of Communist trade
unions took part in 119 strikes in 178 undertakings ; 1,000 members
were affected by 8 lockouts in 12 undertakings. Eighteen Communist
trade union journals were published, with a total circulation of
200,000.
The membership of the Communist organisations (apart from the
independent unions) is distributed by nationality as follows :
Czechs
Germans
Slovaks
116,000
19,000
1.S1O00
Hungarians . . .
Ruthenes . . . .
5,000
1,000
5. Central Trade Union Federation of _ Christian Workers
(Vsedborové sdruzení krestanského dëlnictva). — Membership at the
1
At the end of 1926 this federation amalgamated with the Czechoslovak Federation (see No. 1 above).
Freedom of Association
!•>
194
FREEDOM OF ASSOCIATION
end of 1925, 113,969. Founded in 1902 with 9 groups, the Christian
trade union movement now includes 16 unions. It is not confined
to Roman Catholic workers but also includes Christians of other
churches. Seven trade union journals are published, with a total
circulation of 70,000.
In addition to these five important trade union federations —
Social-Democratic, National-Socialist, Communist, Christian, and
German — the following smaller organisations may also be mentioned
(the figures giving the membership at the end of 1925) :
Czechoslovak Federation of Trade Unions of Officials and Salaried
Employees ( Ceskoslovensky svaz úrednickych a zïizeneckych organisaci), 87,799.
Federal Association of German Trade Unions (Reichsvereinigung
der deutschen Gewerkschaften), 49,690.
Central Federatïon of Estate Employees (Zentrale der Gutsangestellten), 47,722.
Slovak Trade Union Federation (Slowakische Gewerkschaftsunion), 46,363.
National Trade Union Federation (Nationale Gewerkschaftsunion), 25,759.
Federation of German Christian Trade Unions (Union der
deutschen christlichen Gewerkschaften), 20,185.
Union of Higher Officials and Educationists
(Verband der
höheren Beamten und I,ehrpersonen), 11,279.
Union of German Employees of the State in Czechoslovakia (Verband der deutschen Staatsangestellten der Tschechoslowakei), 8,058.
The total number of workers organised in trade unions which was
given earlier includes 155,773 members of Czechoslovak unions and
44,373 of German unions which are not affiliated to any of the central
organisations enumerated above.
Employers
Before the war the majority of employers in what are now the
territories of the Czechoslovak Republic belonged through branch
associations to the central federations in Vienna, Budapest, and
Pressburg (Bratislava). Even at that time, however, there were
independent provincial unions, such as the Bohemian Building
CZECHOSLOVAK REPUBLIC
J
95
Contractors' Union (founded in 1906), the Manufacturers' Union of
Moravia and Silesia, the Engineering Industry Association of Bohemia, the Agricultural Machinery Producers' Union, etc.
These organisations formed the nucleus from which sprang in
1918 the Central Association of Czechoslovak Manufacturers (with
about 6,000 members). The manufacturers' groups of Slovakia and
the manufacturers' unions of Pressburg and Lucenec joined it. The
German Central Federation of Industry (Deutscher Hauptverband
der Industrie), founded in 1919 at Reichenberg (Libérée), which
includes the German industrialists of Northern Bohemia, Moravia,
and Silesia, maintains looser relations.
In agriculture and forestry the employers are organised in two
great associations : the Large Landowners' Association (founded
in 1919) and the Union of Tenants of Large Estates (founded in 1920).
Compulsory
Organisations
On taking over Austrian and Hungarian legislation, the Czechoslovak Republic also inherited the compulsory trade organisations
which played so important a part in the industrial constitution of the
old Monarchy : in Austria the industrial guilds, with the characteristic
journeymen's assemblies (forerunners. of . the trade unions and
sometimes substitutes for them), the mining guilds (Act of 14
August 1896, R.G.B1., No. 156), of special importance in the Czechoslovak provinces, and the chambers of commerce and industry ; in
Hungary the so-called industrial corporations (analogous to the
Austrian guilds), chambers of commerce and industry, and the
agricultural committees and chambers.
For the legislative regulation and other details concerning these
trade organisations reference should be made to the relevant sections
of the report on the former Dual Monarchy of Austria-Hungary.
§ 2. — Legal Conditions of Combination
The legal bases of trade combination and trade union rights in
the Czechoslovak Republic have already been described in the report
on Austria-Hungary and in the foregoing chapter on development
since 1918. It remains to show what are the legal conditions of combination according to these principles.
io6
FREEDOM OF ASSOCIATION
T H E INDIVIDUAL R I G H T OF ASSOCIATION
Here the Austrian Act of 7 April 1870 (R.G.BL, No. 43) and the
Hungarian Act No. V of 1872 are still in force, with the amendments
introduced by the " anti-terrorisation " Act of 1921. As was shown
in the previous chapter, these amendments, with their sharper definition of the offence of " coercion ", provide further guarantees of the
individual's right to join or not to join a trade association as he wishes.
The individual right of association is further safeguarded by
section 3 (/) of the Works Committees Act of 12 August 1921 (G.V.S.,
No. 330), under which the works committees have to " act as independent conciliators in disputes arising out of membership of different
religious, political, or industrial organisations ". Further guarantees
are afforded by section 3 (g), which protects the right of organisation
against encroachment by the employer. If on a complaint by the
works council against the discharge of a worker the arbitration committee set up by the Act arrives at the conclusion " that the wageearning or salaried employee was obviously dismissed on account of
his membership or non-membership of a political or industrial,
national or religious organisation, or on account of political or
industrial, national or religious activities unconnected with his
activities in the works ", the arbitral award may impose one of three
obligations on the employer :
either to reinstate the discharged worker on the previous
conditions and pay him compensation for loss of earnings during
the interval ;
or to procure him other employment in the same occupation,
in the same district, and at the same remuneration ;
or to pay him an indemnity for dismissal equal to from one
to four weeks' wages.
INTERNAL AND EXTERNAL WORKING OF T H E T R A D E ASSOCIATION
Persons Included
From the very general wording of the provisions of the Constitution guaranteeing the right to form associations and the right of
combination, it is clear that no restrictions are imposed as to the
persons to whom these rights are granted, at any rate so far as
nationals are concerned. Women also enjoy these rights. The right
CZECHOSLOVAK REPUBLIC
I97
of officials and employees in State undertakings and the public services — including the police and the military — to combine for trade
purposes is also derived from these provisions.
The law regarding foreigners is the same as in the old AustriaHungary. In the former Austrian provinces they are therefore
exclused from political associations (section 30 of the Associations
Act, 1867), but in Slovakia they are excluded not only from political
associations but from trade associations also, under a decision of the
Supreme Court dated 15 June 1923 (No. 10,298) confirming the validity of the Hungarian Ministerial Order of 1875 (Z. 1,508/präs.).
The only provisions concerning the personal applications of the right
of association are those of the Civil Code regarding legal capacity and
capacity to enter into a legal transaction. (The minimum age for
membership of an association is fourteen.)
Formation,
Working, and Dissolution of the Trade Associations
In the absence of more recent regulation, the conditions governing the foundation and internal working of a trade association are those
laid down in the relevant provisions of former Austrian and Hungarian legislation. Details of these have already been given in their
respective place, and a summary account will therefore suffice here.
In all cases the rules must be submitted-by the founders, and
must be examined by the administrative authorities of second instance
or by the Ministry of the Interior (if the activities of the association
are to extend to the whole territory of the Republic).
If the proposed association is found to be in accordance with the
provisions of the law on associations, one copy of the rules is attached
to the register òf associations, the other returned to the founders with
the official ruling. This empowers them to form the association,
either — under Austrian law — negatively, by " non-prohibition ",
or — under Hungarian law — positively by " authorisation ". " Nonprohibition " need not be expressly stated ; if no prohibition is in
fact pronounced within four weeks, the association quite simply
comes into being, ipso jure, as a legal person. To that extent the
Austrian system is more liberal than the Hungarian. Under Hungarian law the association acquires legal personality by its establishment, but loses it if the authority for associations' does not approve
the rules. Under Hungarian law the authority can act " at its discretion " ; under Austrian law it can prohibit only if the objects of
ICS
FREEDOM OF ASSOCIATION
the association are " contrary to law or dangerous to the State "
(section 6 of the Associations Act of 1867). Under Czechoslovak law
there is the further obligation to prohibit the formation of an association which, if it were in existence, would be dissolved under the
Constitution because its activities might be " contrary to criminal law
or to public peace and order ".
A special note is needed on the branches of trade associations,
whose relation to the parent body is regulated by the rules. If according to these the branch union is financially and administratively
independent of the main union, it must comply with the law on associations like a separate union. Branches must be distinguished from
mere " sections " of the main union (pay-offices, etc.) which have
no separate status in relation to third parties. In Slovakia, under a
Circular of the Hungarian Minister of the Interior dated 9 November 1906 (No. 122,000), which still remains in force, branches of
workers' associations may be formed only under the rules of the
main association and may not have separate branch rules.
Federations to which the trade associations affiliate constitute
associations in themselves, and as such must comply with all provisions
of the law on assocation.
Stipulations for admission to membership are laid down in the
rules. In the workers' trade unions members have to pay an entrance
fee and a weekly contribution, which is fixed according to the size
of the membership and the capacity of the members to pay. Contributions are devoted partly to the constitution of a so-called " workers'
protection fund", partly to unemployment benefit, partly to other
forms of benefit.
The internal activity of the association is also governed by the
rules, subject to the limits of the association laws. The association
may pursue only the objects laid down in the rules, within the area
of operations fixed by the rules, and only by the means prescribed in
the rules. The financial resources may include, besides members'
contributions, the proceeds of co-operative undertakings, donations,
bequests, collections, grants in aid, and so on. The legal relation
between the association and its members is purely one of civil law.
Members' rights against officials of the association cannot be enforced
against the association itself. The number, grade, duties, and rights
of the association's officials are laid down in the rules, which also
determine who shall be authorised to sign on behalf of the association
and to represent it in relation to third parties. A court of arbitration
CZECHOSLOVAK REPUBLIC
Ì9<)
must be set up by the rules to settle disputes. The association a^
such is not liable for illegal acts of its officials, even when they commit
them in the discharge of duties entrusted to them.
If a member infringes the rules he is frequently deprived of
benefits. Usually a grave breach of the rules, injury to occupational
interests, arrears in the payment of contributions, etc., involve expulsion from the association.
Meetings of a trade association are subject to the general law of
assembly, contained in the Austrian Assemblies Act of 15 November
1867 (R.G.BL, No. 135) and the corresponding Hungarian Orders of
1848, 1868, and 1898 \ Under the Austrian Act a distinction is drawn
between open-air meetings and those in enclosed premises. The latter
cannot be prohibited unless they constitute a breach of criminal law
or might endanger public safety. Open-air meetings require the
explicit authorisation oF the police authorities, which may prohibit
the meeting for other reasons. In all cases notice of the meeting
must be given beforehand and the authorities may send a representative to attend the meeting. In the Slovak part of the Czechoslovak
Republic the previous notice of public meetings is fixed at twentyfour hours by a Ministerial Order of 6 June 1920 (No. 4,916/präs.).
Foreigners are not allowed to act as conveners, organisers, or chairmen of meetings to discuss public matters. The chairman of a meeting is responsible for its conduct in accordance with the law. Either
he or the representative of the authorities, if present, may dissolve
the meeting.
The existence of an association may be terminated by voluntary
dissolution, by expiry of the period or attainment of the objects for
which it was formed, by resignation of all the members, etc. Voluntary dissolution must be effected in accordance with the rules. In the
other cases, deletion from the register of associations and disposal of
the association's property in accordance with the rules is all that is
required. A special case arises when all thé officials of the association
resign and the rules do not state who is authorised to call a general
meeting ; here the dissolution of the association may coincide with
the resignation of the officers.
The association may be compulsorily dissolved by the authorities,
as mentioned above, under Article 113 of the Constitution, if its
1
Admitted as part of Czechoslovak law by decisions of the Supreme
Court on 13 June 1924 (No. 7,254) and 5 March 1925 (No. 4,281).
200
FREEDOM OF ASSOCIATION
activities constitute a breach of criminal law or of public peace and
order. This new condition has taken the place of the corresponding
provisions of Austrian and Hungarian law regarding compulsory
dissolution of an association. The association may also have its operations suspended, or under Hungarian law be cautioned, as a warning
of or preliminary to subsequent dissolution. In both cases the circumstances giving ground for dissolution must be stated at the time
of the suspension or caution.. In case of compulsory dissolution the
dissolving authority is also empowered to dispose of the association's
property.
This power of dissolution, the right to send representatives to the
meetings of the association, and the provisions requiring the submission of the names and addresses of officials, all financial reports, and
minutes of proceedings, notification of meetings of the association
twenty-four hours in advance, etc. — all these enable the Government
to exercise supervision over the activities of associations.
§ 3. — Activities of the Trade Association
INTERNAL ACTIVITY
The activities of trade associations have been largely indicated by
the statistical data in Chapter I. The figures illustrate not only the
extensive assistance given by the Czechoslovak trade unions to their
necessitous members, especially in case of labour disputes and unemployment, but also their vigorous efforts in education (lectures, college
classes (Hochschul-Kurse),
libraries, exhibitions, etc.) and in
recruiting members (trade union journals). Sport and athletics in
all forms are also carried on energetically by the Czechoslovak trade
unions. The material and personal welfare of their members is
fostered by the trade unions' efforts in the spheres of employment
exchange work, the co-operative movement, workers'- housing, and
the utilisation of leisure.
The trade unions' share in the relief of unemployment deserves
special mention. By an Act of 19 July 1921 (G.V.S., No. 267) the
so-called " Ghent system " was introduced for the State relief of
unemployment in Czechoslovakia. Under section 2 of this Act the
receipt of State benefit is made conditional on the receipt by the
unemployed person of a trade union benefit from the " workers'
trade organisation " to which he belongs. Section 3 describes the
State contribution explicitly a s a " supplement to the unemployment
CZECHOSLOVAK REPUBLIC
201
relief paid by the trade organisation ". The Act constitutes an indirect statutory recognition of the trade unions, and in addition confers
certain functions of government upon them, since under sections 3
and 4 the trade organisations are responsible for the grant and payment
of the State unemployment benefit. The trade organisation does this
in accordance with its own rules, which are thus given a certain
status in public law. It is hardly necessary to point out that this
linking of State unemployment relief with that of the trade unions
has not only raised the public status of the trade unions but has
greatly increased their power to attract adherents.
PARTICIPATION IN STATE AND PUBLIC ACTIVITY
As in the sphere of unemployment relief, the influential position
of the trade associations in the public life of the Czechoslovak Republic is also shown by the important part they play in joint bodies.
Among these may be mentioned, in addition to the various insurance
institutions : the trade price associations set up under the Government
Order of 26 February 1919 (G.V.S., No. 101) ; the people's price
courts set up by the Act of 28 May 1919 (G.V.S., No. 299) ; the
arbitration committees to regulate conditions of service for salaried
employees in the metal industry, established by the Act of 5 December 1919 (G.V.S., No. 655) ; the mining arbitration courts (Act of
3 July 1924, G.V.S., No. 170) ; the joint arbitration committees
(Order of 24 April 1919, Z. 7,991); the Advisory Council for Agriculture, reorganised on a joint basis (Resolution of the Administrative
Committee of 12 November 1919, Z. 112,988); joint committees in
forestry and for agricultural officials and salaried employees ; and
finally the National Advisory Council and the three provincial advisory councils on the conditions of employees in the sugar industry,
which is so important in Czechoslovakia.
In all these bodies the trade associations — those of employers and
workers in equal degree — must be represented. The associations
have generally the right of nomination only and not of appointment ;
but in some cases the right of nomination is so absolute that it amounts
to that of appointment. This is so, for example, in the wage arbitration courts and price courts in the building industry (Act of
25 January 1923, G.V.S., No. 35), which are characteristic of the
Czechoslovak Republic.
'
Apart from this official participation in public joint bodies (especially arbitration bodies), the trade associations have also voluntarily
202
"REEDOM OF ASSOCIATION
united to form central joint committees for industry as a whole.
T h e s e have their headquarters in P r a g u e , Bratislava, a n d Uzhorod
respectively. Their function is to adjust collective labour disputes
arising between trade associations or federations. If the parties agree
beforehand to submit to them, the committees issue arbitral decisions ;
otherwise they confine themselves to conciliation. T h e trade associations appoint the assessors to the committees (an equal number on the
employers' and on the workers' s i d e ) . I n the proceedings they are
represented by trade union or association officials a n d not by professional lawyers.
Outside the sphere of trade affairs proper, t h e trade associations
have gained a considerable influence in general economic problems
in t h e public affairs of Czechoslovakia. T h i s has been achieved not
merely t h r o u g h their close relations w i t h t h e parliamentary parties
in both Houses, but more especially through the Advisory Council
for Economic Questions set up by a Government Order of 29 December 1921 ( G . V . S . , N o . 3 of 1922) in accordance with Article 90 of
the Constitution. Sixty representatives of employers and sixty of
the workers are members of this Council. T h e y are appointed by the
Government, it is true, b u t t h e Government is bound to follow the
nominations of the central organisations representing the interests of
employers and workers. T h e s e organisations are mentioned by name
in t h e Order, which also gives the exact proportion in which seats
are to be distributed to the various groups.
A p a r t from this Council, which assists both in legislation and in
administration, whether in an advisory or in a decisive capacity, there
is no provision in Czechoslovak law for participation by the trade
associations in the work of government. I t is nevertheless a frequent
practice of the Government to discuss economic and social question
with them.
P A R T I C I P A T I O N I N T H E E S T A B L I S H M E N T AND O B S E R V A N C E
OF LABOUR CONDITIONS
Participation in the establishment of labour conditions t h r o u g h
the conclusion of collective agreements is highly developed, especially
in the areas which were formerly Austrian \ But hitherto there has
:
The number of collective agreements concluded was as follows :
T919 . . . . .
1,087 (786,335 workers)
192°
1,254 (946,409 workers)
1921
554 (520,621 workers)
T
922
354 (510,502 workers)
CZECHOSLOVAK REPUBLIC
203
been no legislation on the collective agreement. A Bill providing for
regulation similar to that adopted in Austria and Germany is now
before Parliament. Until any such Act comes into force, however,
the provisions described in the study on Austria-Hungary whichwere in force before the creation of the Czechoslovak Republic still
apply to the collective agreement. The only statutory form for collective regulation of labour conditions is therefore that provided in section 114 of the Industrial Code of 1907 : under this section the
industrial guilds have to lay down provisions for hours of work,
breaks, remuneration, and period of notice for the industrial workers
concerned, in agreement with the journeymen's assembly.
In more recent Czechoslovak legislation, however, more farreaching regulation of labour conditions by collective agreement is
explicitly admitted by three measures :
1. Sections 20 and 21 of the Home Work Act of 12 December 1919 (G.V.S., No. 29 of 1920) declare that collective (wage)
agreements respecting remuneration, the prices of goods delivered,
and other conditions of employment and of the delivery of work which
have been concluded by associations of employers and workers shall be
deemed to be component parts of any individual contract concluded
between members of the associations party to the collective agreement.
2. Under section 19 of the Act of 25 February 1920 (G.V.S.,
No. 143) concerning works and pit councils in mining, the pit councils have inter alia to assist in the conclusion of collective .wage and
labour agreements and to supervise their observance.
3. By section 3 of the Works Committees Act of 12 August 1921
(G.V.S., No. 330) the works committees are allowed (as in the Austrian Works Councils Act of 1919) " with the assistance of the trade
organisations of employers and employees " to " bring about agreements respecting supplements to the collective agreements concluded
between the said organisation, in so far as the collective agreements
in question admit thereof ". This constitutes an express recognition
of the trade organisations' right to conclude collective agreements.
The Act also (section 3a) gives collective agreements concluded by
the trade organisations precedence over the competence of the works
committees to make agreements respecting works regulations.
The collective agreement in Czechoslovakia still, however, lacks
the element in modern law on collective agreements which gives the
trade associations a powerful means of securing uniformity in labour
conditions — the possibility of making it universally binding. In
204
FREEDOM OF ASSOCIATION
fact, a recent plenary decision of the Supreme Court, dated 25
November 1925 (Präs. Z. 544), ruled t h a t t h e parties were free to
m a k e individual contracts deviating from a collective agreement, even
if both parties were members of the organisations w h i c h concluded the
said agreement, regardless of whether the deviation was to the advantage of the employer or of the worker. T h e sensation caused in
m a n y circles by this decision, prior to which the practice of the
courts h a d varied, seems to have revived t h e parliamentary discussion
of the Bill mentioned above. Suggestions are now being made that
t h e idea already embodied in German a n d Austrian legislation should
be adopted a n d that it should be m a d e statutorily possible to declare
t h e contents of a collective agreement to be in some degree universally binding.
A C T I V I T Y IN C O L L E C T I V E D I S P U T E S
A s was pointed out earlier x , the " anti-terrorisation " Act of 1921
indirectly admitted the right to strike and to lockout, provided that
these measures are taken solely for the purpose of improving economic a n d labour conditions. If they arise from national, religious, or
political motives they come under the criminal provisions of the Act.
T h e more severe provisions of the Criminal Code (section 98) apply
• to all kinds of militant action if force is used. Several decisions of
the Supreme Court 2 have drawn the distinction t h a t t h e use of minor
methods of intimidation (insults, boycott, etc.) constitute a breach of
the " anti-terrorisation " Act, while the actual employment of physical or moral force directly or indirectly against the person it is desired
to coerce is punishable under the Criminal Code. According to a
decision of the Supreme Court on 17 F e b r u a r y 1923 (Zl. I . 56),
blacklisting is also deemed to come under section 1 of the " antiterrorisation " Act.
A special legislative measure against collective disputes, which,
even when lawful are injurious to the community a n d should be
avoided as far as possible, has been enacted in the building industry.
T h i s very significant provision of Czechoslovak law first embodied
1
See, pp. 188 et seq.
Decisions of 10 Sept. 1921, Z. II, 363 ; of 16 Dec. igar, Z. I, 286 ; of
29 Dec. 1921, Z. I, 480 ; of 5 Ma}' 1922, Z. II, 664 ; nnd of 15 Jan. 1926,
Z. II, 3372
CZECHOSLOVAK
205
REPUBLIC
in section 17 of the Building Act of 11 March 1921 (G.V.S., No. 100)
in the form that neither employers, workers, nor their organisations
might declare a lockout or strike until the wage arbitration court set
up by- the Act had given its decision. In the succeeding Building
Act of 25 January 1923 (G.V.S., No. 35) the provision was less strongly
worded : " The arbitration court shall also be competent to decide
collective disputes if both parties submit to its decision, even if one of
them is already involved in a strike or lockout. "
The effects of a dispute on the continuance of employment is
determined by the provisions of the Austrian Industrial Code (sections 82 and 82a) concerning discharge or resignation without notice,
by section 120 of the Hungarian Industrial Code, and section 27 of
the Austrian Commercial Employees Act of 16 January 1910 (R.G.B1.,
No. 20). If none of the statutory reasons mentioned in these provivisions applies to a stoppage of work without notice by an individual
worker in the course of a strike, the employer has the right to dismiss
the striker forthwith for unauthorised quitting of work (section 82/).
According to the practice of the industrial courts, not only unauthorised quitting of work but also " ca'canny " is a ground for immediate
dismissal.
In practice, however, this rule is not generally enforced ; on the
termination of the collective dispute the document restoring industrial
peace usually contains a clause securing the unaltered continuance
of individual employment contracts as though there had been no
interrruption.
The extent to which militant measures are resorted to is indicated
by the following statistics of strikes and lockouts :
Year
I919
1920
I92I
1922
!923
1924
1925
Number of
strikes
329
2801
180
Number of
workers
affected
87,289
22I.7951
28,210
Number of
lockouts
27
27
22
Number of
workers
affected
22,424
6,824
l6,309
1 Including the one-day general strike in Prague and Sub-Carpathian
Russia.
206
FREEDOM OF ASSOCIATION
These figures do not include the comparatively small number of
labour disputes in agriculture, forestry, and on the railways, or those
in mining, which are shown in the following table :
Year
1919
1920
1921
1922
1923
I924
1925
Number of
strikes
95
42
19
16
]
1
Number of
lockouts
3
1
1
Number of
workers
affected
-
97,896
215,787
146,126
«1,341
The " workers' protection fund " intended by the trade unions
for the support of strikers and the amounts devoted to this purpose
have already been mentioned in § r.
CONCLUSION
The first point to be noted in a survey of developments in the
subject here discussed since the creation of the Czechoslovak Republic
in iQi8 is that the Constitution gives express and far-reaching recognition to the right to form associations and the right of combination.
The legislation on the subject, however, Eas undergone no very
noteworthy change. The legal principles which governed the law of
association, assembly, and combination in the old Austria or Hungary
are therefore still in force, with the amendments and additions which
have been noted in detail ; some of these provide a surer guarantee
of the right to combine or not to combine.
Under this system of regulation trade associations in Czechoslovakia have made great progress and acquired a growing influence.
National divisions, which seem latterly to have lost some of their
rigidity, and the Communist secession have split the trade union
movement into many subdivisions. The growing importance of trade
associations in Czechoslovakia is further shown by the frequent inclusion of their representatives in joint bodies, arbitration courts, etc.,
in the influence exerted on conditions of labour through the collective
agreement, and in the successful use of militant trade union measures.
For purposes of international comparison certain peculiarities of
Czechoslovak law are of interest, such as the wage arbitration courts
and price courts in the building industry, the provisions of the " antiterrorisation " Act, and the relations between the works committees
and the trade unions.
BIBLIOGRAPHY
INTERNATIONAL
Application
LABOUR
OFFICE.
The
Eight-Hour
Act
and
to Agriculture in Czechoslovakia.
Geneva, 1921.
Hours of Labour in Industry : Czechoslovak Republic.
its
Geneva,
1924.
BOHUSLAV, Dr.
Rukovët
DusiL, Dr. V.
Ceskoslovenské
práv.o
Kollektivní
smlouvy
DUNDER-HAMPL.
EHLEMANN, Dr. Franz.
LAMBERG, Dr. H. W.
èivota spolkovêho.
Prague, 1923.
spolkové.
pracovni.
Betriebsausschüsse.
Handbuch
Prague, 1924.
Reichenberg, 1924.
des Arbeitsrechts.
Prague, 1922.
R E I F , Dr. G. " Kollektivní smlouvy pracovni 1919-1922. "
tin de Statistique tchécoslovaque, 1924, Nos. 3-6.
Bulle-
TELTSIK, R. " Le mouvement syndical en Tchécoslovaquie ".
nouvelle Revue socialiste, Paris, 1926, No. 10.
ToBOLKA, Dr. Z. Pocátky
TucNy, A.
Ceskoslovenské
dënického
hnuti.
Vyvoj dëlnické a zrízenecké
republiky.
Prague, 1924.
W E Y R , Dr. F. Soustava ceskoslovenského
La
Prague, 1924.
otázky
v prvém
pétileti
prava ústavnlho'.
Brunn,
1921.
Ceskoslovenské
pravo správní.
Cást vseobecná.
WINTER, Dr. L. Pocátky hnutl dëlnického
Protokoly sjezdû odborovych
.organisaci. Odborové casopisy.
organisacl.
Brunn, 1922.
(Académie, roc I, st. 319).
,Zpravy sjezdû
odborovych
POLAND
CHAPTER I
E V O L U T I O N AND P R E S E N T POSITION OF T R A D E
UNIONISM
§ 1. — Trade Unionism before the Reconstitution of Poland
as an Independent Country
T h e evolution of trade unionism in Poland falls naturally into
two periods, one before t h e reconstitution of Poland as a n independent
country a n d one after, the second being so short t h a t it almost merges
into the present situation. Both will be briefly examined in. the
following pages.
Before the war Poland was ruled by three Powers — Russia, Germ a n y , a n d A u s t r i a - H u n g a r y — and therefore three different forms
of legislation were in force.
Consequently this period m u s t be
studied in three parts.
I t is particularly important that trade unionism should be studied
separately in each of the three divisions that now constitute Poland.
in view of the fact t h a t the position under the three Powers varied
considerably.
WORKERS'
Former
O R G A N I S A T I O N S •'•
Russian
Poland
U n t i l 1905 neither freedom of association in general nor freedom
of trade unionism were recognised even in principle in the Russian
1
This outline of trade unionism in Poland before the reconstitution
is taken from " Syndicats professionnels de la classe ouvrière en Pologne ", by M. K. DAGNAN, in Praca i Opicka Spoleczna, fourth year,
No. i.
Freedom of Association
4
2 IO
FREEDOM OF ASSOCIATION
State. Associations could not be formed without the sanction of the
administration. T h e movement a m o n g the workers was regarded,
moreover, as a serious danger to t h e existing constitution in so far
as it was affected by revolutionary tendencies.
I t was practically impossible to organise workers' associations :
a permit could only be obtained with the utmost difficulty and even
if it was granted t h e organisers and members of t h e association were
at once suspected by the police and probably fell into their hands
sooner or later.
I n these conditions the protection of the economic interests of
the w o r k i n g classes was taken up under great difficulties by illegal
organisations. These organisations, although of a somewhat economic n a t u r e , were mainly political. I n this way, secret Socialistic
organisations grew u p in former Russian Poland during the last two
decades of the nineteenth century.
These organisations created
" resistance funds " (caisses de resistance) to be used in case of need
for the organisation of strikes. T h e y were persecuted by the police
a n d severely repressed when any signs of their existence were
discovered.
D u r i n g the revolutionary movement from 1905-1906, the Russian
Government introduced reforms of a liberal tendency. One of these
reforms consisted of t h e Act entitled " Provisional Regulations concerning Unions and Associations " of 4-17 March 1906. T h i s Act
already recognised freedom of association in principle although with
m a n y restrictions. I t will be discussed later since it is still in force
in an amended form in those parts of Poland that were formerly
Russian.
' I t was at this period that the first legal trade unions were
founded in Russian Poland. Some of them had a Socialistic tendency
and were connected with the Polish Socialist P a r t y or the SocialDemocratic P a r t y of the K i n g d o m of Poland 1 and of Lithuania (this
p a r t y united later with a section of the .Socialist P a r t y to form the
Communist P a r t y ) or with the Jewish Socialist P a r t y " Bund ".
Others, of a more national radical tendency called Polish trade unions,
were connected with the political party k n o w n as the National
W o r k e r s ' Union (to-day the National L a b o u r P a r t y ) .
1
It should be remembered that the name " Kingdom of Poland " or
" Kingdom of the Congress " is given to the territory constituted as a
kingdom and attached in this form to Russia by the Congress of Vienna
111 181 v
POLAND
211
However, the trade unions did not put much faith in the constitutional privileges t h a t were granted, and considered it wiser,
at any rate to some extent, to retain their character of secret
organisations.
T h e sudden development of trade unionism from 1906-1908 is
evidence of the need felt by the masses of the working classes for
trade unions. T r a d e unionism rapidly penetrated into all industrial
centres and various economic activities sprang from it, and in a short
time several publications were regularly issued.
I n 1908 trade unionism reached the height of its development
in former Russian Poland. Immediately afterwards it. was almost
entirely crushed by the reactionary policy of the Government, which
withdrew all t h e liberal promises it had made, and there was a
wholesale r e t u r n to t h e old despotic methods of government.
No accurate statistics concerning the position and strength of
trade unionism at this period are available.
T h e publications
mentioned above are scanty and deal only with one part of t h e
movement. Also the trade unions had n o central offices for the whole
of Russian Poland. Therefore no records or statistics of trade unionism
as a whole were made 1.
I n consequence of this reactionary movement, which steadily
increased from 1908, a considerable number of the most important
trade unions were dissolved b y t h e Russian authorities. T h e i r most
outstanding leaders and active members were imprisoned or deported
to Siberia. Only a few trade unions managed to escape repression.
Being under constant threats of dissolution it was impossible for t h e m
to develop their economic or trade union activities. T h e y w e r e
only able to organise mutual-aid funds for their members and to
promote friendly relations between them and to devote their energies
within very narrow limits to educational purposes.
1
According to approximate estimates the membership of workers'
organisations in 1908 was about 120,000, of which 50,000 members belonged
to the " Polish " trade unions and 50,000 to the " class " trade unions.
The Jewish trade unions (those affiliated to the " Bund " and others)
had a membership of about 20,000. As yet there were no Christian trade
unions ; there were, however, " associations of Christian workers " whose
objects were educational and religious. These societies form the nucleus
of the Christian-vSocial trade unions which were subsequentl}- created
after the reconstitution of Poland as an independent country.
212
FREEDOM OF ASSOCIATION
Former
Prussian
Poland
I n former Prussian Poland, trade associations and trade unions
were subject until 1918 to the same system of legislation as those in
the German Empire. T h i s system of legislation is examined in detail
in the study on Germany and will not be discussed here. I t is
sufficient to observe that the Act of 19 April 1908 concerning the
right of association considerably checked the activity, of Polish trade
unions. Section 12 of this Act, which is k n o w n as the " languages
section ", prohibited the use of any language other than German at
public meetings, except in districts where at least 60 per cent, of the
population did not speak G e r m a n .
However, the working classes in former Prussian Poland were
none the less covered by a constitutional system that recognised
freedom of trade unionism although subject to certain reservations.
F o r some time Polish workers in these districts belonged to
German trade organisations either Christian or Socialist (free). T h e
. first exclusively trade union organisation of Polish workers in t h e
G e r m a n E m p i r e was founded in 1902 not on former Polish territory
b u t in Westphalia a t Bochum, where there was a large population of
Polish workers. This organisation took the name of Federation of
Polish T r a d e Unions (Zjednoczenie
Zawodowe Polskie).
I n the same
year an organisation called the Polish T r a d e Union was founded
in Poznan (Polski Zwiazek Zawodowy).
Both these associations
included workers in various trades. I t should be added that a society
known as the Mutual-Aid Society ( Wzajemna Pomoc) had been in
existence in Upper Silesia since 1889. I t was a society for education
and mutual aid.
T h e most active of these societies, the Federation of Bochum,
later took the initiative in uniting all the Polish workers' associations
in a single association. T h i s scheme was realised in 1909 and the
new organisation took the name of the organisation of Bochum —
" Federation of Polish T r a d e Unions ".
T h e Federation of Polish T r a d e U n i o n s was run upon national
a n d Christian principles. Besides its exclusively trade union functions, it developed considerable activity with regard to education and
patriotic propaganda, and consequently came into frequent conflict
with the German authorities.
T h e following table taken from a report on the activity of t h e
213
POLAND
Union t h a t appeared in 1911 gives an idea of the development of the
Federation of Polish T r a d e Unions between 1903 and 1910.
Year
Membership) . .
1903 1904 1905 1906
1907 1908 1909 1910.
5,000 11,500 25,000 40,000 47,000 48,000 56,000 66,970
I n the first half of 1914 the Federation of Polish T r a d e Unions
had a membership of 50,903 miners, 12,268 metal workers and
12,000 artisans.
Besides the Federation of Polish T r a d e U n i o n s , there were i n
former Prussian Poland sections of the German trade unions with
Christian-Social and Socialistic tendencies to which a certain n u m b e r
of Polish workers belonged ; no accurate statistics concerning the
membership of these organisations are available.
I n 1913 Polish workers in Upper Silesia w h o had until then
belonged to the German Socialist trade unions seceded from these
organisations and formed independent trade unions under the
influence of the Polish Socialist P a r t y . Reliable information concerni n g these trade unions is also not available.
Former Austrian
Poiand
T h e Government of Austrian Poland was certainly from the
middle of the last century t h e most liberal of the three Governments
to which Poland was subject x . T h e administration of the country
was entirely in the h a n d s of the Poles, a n d Polish was the official
language. I t is therefore natural that the relations between, the
authorities and associations should be entirely different from those
existing under the two other Governments mentioned above.
T h e first legal trade organisations of Polish workers were founded
in Austrian Poland about the year 1890. T h e s e trade u n i o n s were
founded by the Socialist P a r t y in Austrian Poland and were affiliated
to the central trade union organisation of Austria in Vienna.
T h e development of these trade unions in the two provinces
where there was a Polish population, Galicia and Austrian Silesia,
is illustrated by t h e following table :
1
See study on the former Dual Monarchy of Austria- Hungary,
p . 130.
FREEDOM OP ASSOCIATION
214
GALICIA
Year
. . . .
Membership .
1905 1906
1907
1908
1909
1910
1911
. 5,915 8,017 12,805 12,555 !6,079 15,500 16,923
Year
. . . .
1912
1913
1914
1915
I
Membership . . 17,196 16,759 13,749 i7°4
AUSTRIAN SILESIA
Year
. . . .
Memoership .
Year
1905
1906
1907
1908
1909
1910
1911
. 6,675 14,496 18,570 25,706 23,559 22,286 18,573 .
. . . .
1913
1913
1914
1915
Membership . . 17,093 17,941 19,078 11,293
On 1 J a n u a r y 1914, 44 trade unions were in existence in Galicia
and Austrian Silesia. I t should be noted t h a t in the Socialist trade
unions in Austrian Silesia, Polish, Czech and German workers formed
separate groups.
F r o m 1900 trade unions of a Christian tendency began to be
formed in Galicia. T h e y were united in a central organisation,
the Federation of Polish Trade Unions of Christian Workers (Polskie
Zjednoçzenie
Zawodowe
Chrzescijanskich
Robotnikow),
vAth t h e
head office at Cracow. Subsequently, nine trade sections were constituted within this organisation, the development of which from 1907
to 1914 is shown in the following table :
Year
1907
1908
1909
I910
I9II
1912
1913
1914
Number of
sections
37
47
56
45
46
44
52
53
Membership
2,500
4,000
5,000 •
6,276
3,000
2,820
3.800
4,300
POLAND
2
I 5
EMPLOYERS' ORGANISATIONS
The fact that different Powers governed the three divisions of
Poland did not play the same rôle with regard to the employers'
movement as with regard to the workers' movement. No serious
difficulties were encountered in any quarter in connection with the
constitution or activities of employers' organisations. Consequently,
a central employers' organisation existed in Russian Poland called
the " Society of Industrial Employers in the Kingdom of Poland ",
besides local organisations that were able to develop their activity
without any 'particular restrictions, as also those that existed at the
same time in Prussian and Austrian Poland.
It was natural that, during the war of 1914 to 1918 the question
of freedom of trade unionism in the three divisions of Poland was
affected by the unusual situation of Russia, Germany and Austria.
The powers of the administrative authorities with regard to
associations increased as constitutional privileges were withdrawn,
and apart from any effect that the attitude of the public authorities
may have had, trade unionism automatically disappeared in consequence of difficult conditions of life and the effect of the war in
general.
There is no need to dwell upon the restrictions put upon freedom
of trade unionism or the inevitable decline of trade unionism at this
time. This decline was, however, not general. Thus in Russian
Poland at a certain period during the occupation of the Austrians
and Germans in 1915, the administrative authorities became in some
respects more liberal than the Russian administrative authorities
before the war. From 1916 Polish trade union organisations that
since 1908 had barely been able to exist, and were for the most part
illegal, were reorganised and showed a certain degree of activity.
Several central trade union organisations were formed in Warsaw :
the Regional Council of Polish Trade Unions (under the influence of
the National Labour Party) ; the Central Committee of Polish Trade
Unions (under the influence of the Polish Socialist Party) ; the
Council of Trade Unions of Warsaw (under the influence of the
Social-Democratic _Party).
It should be noted that in Prussian Poland the legislation
controlling associations was considerably modified during the war ;
section 12 of the Act concerning associations of 1908, known as the
" languages section ", was abolished by an Act of 19 April 1917.
2l6
FREEDOM OF ASSOCIATION
§ 2. — Trade Unionism after the Reconstruction
of Poland as an Independent Country
The reconstruction of Poland as an independent State coincided
with the end of the war, but the different districts that compose
present-day Poland only came gradually under the Polish Government. For the first few months Polish authority was limited to the
former Kingdom of Poland (also called the Kingdom of the Congress)
and to former Austrian Poland. Former Russian Poland remained
attached, to Germany for some time : the territory of Posnania
(approximately the present-day voievode of Poznan) until the revolt
of 28 December 1918 ; Pomerania (the present day voievode of
Pomerania) until the Treaty of Versailles was enforced in
January 1920 ; and Polish Upper Silesia until the decision of the
Ambassadors' Conference of 21 September 1921. It was during this
period that German revolutionary legislation was introduced into
these territories, where in a general way it remained in force. In
particular the Proclamation of the Council of the People's Commissaries of 12 November 1918, that established complete freedom of
association and assembly, was retained. The Polish territories
situated in the east of the Kingdom of Poland came gradually into
the power of Poland during the war between Poland and Russia from
1919 to 1920, and were definitely attached to Poland by the Treaty
of Riga of 18 March 1921.
Freedom of association in general and freedom of trade unionism
were definitely established in the Polish State immediately after it
was reconstituted. The legal basis of this freedom is to be found
in the Decree concerning associations of 3 January 1919, the Decree
concerning workers' trade unions of 8 February 1919, and the Constitution of 17 March 1921.
Since the legislative Acts concerning freedom of trade unionism
promulgated since the reconstitution of the Polish State have generally
remained in force until to-day, they will be examined in Chapter II,
which deals with the present conditions governing the existence of
trade associations.
POLAND
217
§ 3. — Present Position of Trade Unionism
EMPLOYERS' ORGANISATIONS
There are flourishing employers' associations in Poland in
connection with every branch of national economy. The great
majority are affiliated to large central organisations.
The most important central organisation at present is the Central
Union of Polish Industries, Mines, Commerce and Finance (Centralny
Zwiazek Polskiego Przemyslu, Gomictwa, Handlu i Finansow),
affiliated to the International Organisation of Industrial Employers..
the headquarters of which are in Brussels.
This Union was created in 1920 on the initiative of the Society
of Industrial Employers of the Kingdom of Poland, which was the
chief employers' organisation in former Russian Poland. As members
of the Union, there are 43 organisations representing the various
types of industry in connection with production, manufacture, extraction, commerce and finance that are, in their turn, organised
nationally or by district. In accordance with the first section of the
rules, the aim of the Union is to improve " the economic conditions
of the country, to develop all branches of industrial activity, and to
organise the industrial, commercial and financial life of the community ". Part of its policy is to organise employers' trade unions "
and to remain in close contact with them. It takes an active interest
in questions of social policy and endeavours to establish a common
line of action for employers with regard to trade unionism. The Polish
Government usually selects the employers' representatives for the
sessions of the International Labour Conference in accordance with
suggestions from this organisation.
There are several powerful central organisations in existence in
connection with agriculture, such as the Union of Polish Agricultural
Organisations (Zwiazek Polskich Organizacji Rolinczych)
which
unites nine regional associations and one important national association, the Central Agricultural Society (Centralne
Towarzystwo
Rolnicze) and the Controlling Council of Landed Proprietors
Organisations (Rada Naczelna Organizacji Ziemianskich).
Landed proprietors are generally represented in discussions •
concerning the conclusion of collective agricultural agreements by
regional organisations such as the Unions of Landed Proprietors in
the Central Voievodes of Posnania, Pomerania, the Cracow district,
2l8
FREEDOM OF ASSOCIATION
the I,wow district, Volhyniea, the Eastern Provinces, and such as
the Union of German Landed Proprietors in Western Poland.
Polish artisans have a central organisation • called the Central
Society of Artisans in the Polish State (Centraine
Towarzystwo
Rzemieslnicze w Panstwie Polskient), to which eleven regional and
local organisations are affiliated covering about 45,000 undertakings.
Besides these organisations constituted according to the general rules
for associations, Polish artisans have corporations (cechy) that are
subject to special legal provisions and that will be dealt with later.
These corporations are not properly speaking employers' institutions,
but are mixed organisations composed of bodies or parties of masters
and journeymen. However, the general administration of these
corporations is in the hands of the masters. The rights of the
journeymen are strictly limited.
In former Prussian and Austrian Poland there were certain
institutions of public law representing the interests of industry,
commerce and agriculture : the Chambers of Industry and Commerce, and the Chambers of Agriculture in former Prussian Poland,
the Chambers of Commerce and Industry in former Austrian Poland \
There is one national union of all these Chambers. Preparations for
the creation of Chambers of Industry and Commerce and Chambers
of Agriculture in former Russian Poland are at present in progress.
A certain number of employers' organisations and local organisations are not affiliated to the central organisations mentioned above.
WORKERS'
ORGANISATIONS
Trade unionism among workers developed considerably after the
reconstitution of Poland as an independent State. Local or regional
trade groups were formed in connection with the main tendencies of
trade unionism in all industrial centres of any importance. This
was also the case with regard to agriculture in a great many districts.
These local groups are combined in national trade federations, and in
central organisations in which federations of the same tendency are
amalgamated. The proportion of workers belonging to the trade
unions is probably less in agriculture than in the principal industries,
but it is none the less of importance.
1
See " The Former Dual Monarchy of Austrian-Hungary ", p. 116.
POLAND
219
The main tendencies in the present development of trade
unionism, which could already be foreseen in a general way before
the reconstitution of Poland, are represented by three large groups :
the Federation of Trade Unions of Poland, the Federation of Polish
Trade Unions, and the Federation of Christian Trade Unions of the
Polish Republic. These three organisations should be briefly mentioned before dealing with the less important groups in trade
unionism.
The Federation of Trade Unions of Poland (Zwiazek Stowarzyszen Zawodowych w Polsce) is affiliated to the International Federation
of Trade Unions of Amsterdam, and is mainly under the influence
of the Socialist Party. A certain number of Communist workers,
however, belong to the Federation, but they are in the minority. The
Jewish workers who support the Jewish Workers' Party " Bund "
now belong to trade unions in the Federation, after having for some
time formed separate organisations.
The trade unions belonging to the Federation, call themselves
" class " trade unions (syndicats de classe) as an indication that they
are founded on the Marxist theory of class warfare. Their programme
is to establish a collectivist system that can only be realised by means
of a social revolution. So long as it is impossible to attain this end,
the function of- the trade unions is to improve the material and moral
position of workers by means of class warfare. However, " class "
trade unions endeavour, in so far as is possible, to conclude collective
agreements, and to settle disputes by means of negotiations without
resorting to strikes . In cases where the interests of the nation are
at stake, the Federation of Trade Unions considers it necessary to
subordinate the special interests of the workers to the national
interests.
The attitude adopted by the Federation of Trade Unions as
described above explains why the Jewish trade unions in connection
with the " Bund " party, and even groups with Communistic tendencies, were able to affiliate themselves to the Federation. All these
different groups follow the principle of class warfare and the maximum collectivist programme. However, in certain cases in which
the trade unions had to adapt their behaviour to the demands of
national interest, and in others where they were obliged to express
their desire to avoid strikes and anticipated disputes, the tendency
described above, that in a general way determines the policy of the
Federation of Trade Unions, came into conflict with the groups that
220
FREEDOM OF ASSOCIATION
were more or less under the influence of the Communist P a r t y .
Copious statistics, in particular for 1924, are given in the report drawn
u p by t h e Central T r a d e Union Committee (executive committee of
the Federation) on the activity of the Federation and the position
of the trade unions that were affiliated to the Federation during
1922, 1923 and 1924. T h i s report was submitted to the T h i r d Congress of the Federation held in Warsaw from 11 to 14 J u n e 1925 1.
T h e statistics for 1925 were collected by means of an enquiry
•instituted by the Ministry of Labour and Social Welfare (the figures
are provisional) 2 .
T h e economic crisis that occurred in Poland in 1924 was
accompanied by a very marked decline in trade unionism.
The
membership of the trade unions affiliated to the Federation was
20 per cent, less in 1924 than in 1923. T h e economic situation
became still more serious in 1925, particularly during the
latter half of the year. T h e numbers of trade unions a n d of the
local sections in the trade unions steadily decreased. T h e following
table gives the membership of the trade unions and of their local
sections for 1919 to 1925 :
Year
1919
192O
1921
1922
1923
1924
1925
Members
255.469 '
397.986
445,774
377,351
377,938
300,221
242,084
Sections
655
792
911
1,129
1,708
1,210
—
T h e number of trade unions in 1925 was also less t h a n in 1923,
but this is due to the centralisation of trade unionism, and a tendency
to establish national trade unions each comprising the workers of
one given industry in accordance with the programme adopted by
the First Congress of the Federation in 1920. T h i s programme countenances the continued existence of certain regional trade unions, of
1
Report of the Central Trade Union Committee, Warsaw, 1925, p. 220.
The figures obtained through the enquiry of the Ministry of Labour
and Social Welfare need to be explained : a very careful method was used
to establish the figures for the membership of the trade unions in this
enquiry ; in particular, only those workers who had paid their subscriptions for the six months in question were counted as members of the trade
unions. The figures for the years preceding 1924 are taken from the
reports drawn up by the trade unions themselves.' The difference in the
methods used to establish these figures explains in part the decline
for 1925.
2
221
POLAND
the special trade unions in connection with minor racial groups, and
some other special forms of trade unions. T h e trade unions in the
latter categories were merged later in the national federations that
were all constituted on the same lines.
T h e National Council of Jewish T r a d e U n i o n s became affiliated
to the Federation of T r a d e Unions of Poland on i J a n u a r y 1922.
T h e r e has been a gradual amalgamation of the Jewish trade unions
with the unions affiliated to the Federation, and at present this
process is almost complete. T h e Central Jewish Council h a s become
the Central Jewish Section of the Central Committee, and deals with
education a n d propaganda.
T h e Federation gives particular attention to the special needs
of German workers in Poland.
T h e following table shows the advance in centralisation of the
trade unions affiliated to the Federation.
Total
Year
1919
1920
1921
1922
1923
1924
1925
number
of
trade unions
67
49
41
36
35
31
32
Number of trade unions :
National
7
Regional
31
14
19
22
22
21
16
29
19
II
11
8
7
6
5
27
t,ocal
7
6
4
—
I t is also interesting to note the membership of the most important national trade unions affiliated to the Federation as given in the
following table for 1921 to 1924 * :
1921
1922
1923 .
1924
1925
Trade Union of Agricultural
Workers
110,532 80,556 62,037 50,000 76,012
Trade Union of Miners, head
office at Cracow 2 . . . .
39,046 27,82s 24,129 20,313 10,506a
Trade Union of Metal Workers
26,890 23,768 28,288 10,624
7,663
Trade Union of Textile Workers
68,394 43,091 35,345 28,552 18,339
Trade Union of Railwaymen .
77,141 70,454 67,390 58,701 • 58,209
T h e total receipts of the trade unions affiliated to the Federation
were 2,299,948 zloty in 1924, and 3,560,364 zloty in 1925 4 .
1
pp.
Report of the Central Trade Union Committee, Warsaw, 1925,
210-211.
2
The report does not give the -complete figures for the membership
of the other miners' trade union that has its head office at Katowitz,
and amalgamated with the former in December 1925.
3
The trade union of miners at Katowitz is included.
4
Report of the Central Trade Union Committee, op .cit., p. 220.
222
FREEDOM OF ASSOCIATION
The Federation of the affiliated organisations publishes nineteen
periodicals, of which 2,300,000 copies were issued in 1925 as against
1,600,000 in 1924 and 1,100,000 in 1923.
The programme of the Federation of Polish Trade Unions
(Zjednoczenie Zawodowe Polskie) is to protect the material and moral
interests of the Polish proletariat, and gradually to improve their
position without resorting to revolution, and finally to replace the
present social regime by a system based upon collective ownership of
the means of production. Its maximum programme is founded on the
same principle as the maximum Socialist programme. On the other
hand, the Federation of Polish Trade Unions lays great stress upon
its national tendencies, and is opposed to international solidarity of
the proletariat, and substitutes the motto " Workers of the World,
unite ! " by that of " Workers of Poland, unite ! ". The organisation
considers its national character from an exclusively racial point of
view, and undertakes to represent the interests of a racially Polish
proletariat and not of the entire proletariat of Poland. It also upholds
Christian theories.
The difference between the methods of this organisation and of
the trade unions under the influence of the Socialist Party is that the
Federation of Polish Trade Unions, as has been shown above, does
not admit social revolution. On the other hand, it emphasises the
necessity for solidarity among all parties of the nation in questions
where national interests are at stake ; but in cases where national
interests do not enter, it recognises the principle of class warfare.
The Federation of Polish Trade Unions organises strikes or takes
part in their organisation t although it endeavours to avoid them as
far as possible.
In 1924 this organisation included fourteen trade unions on
Republican territory (excluding a few minor, unimportant organisations) . In addition, two German trade unions of Polish workers
were affiliated to the Federation. Almost all the affiliated trade
unions have a national character ; only a few include workers in
different trades.
According to its official report, the Federation had a membership
of 550,382 in 1924. According to the figures established by the
Ministry of Labour and Social Welfare, the membership of the
Federation was 221,330 in 1925. The following figures show the
number of trade unions (and their sections) affiliated to the
Federation.
POLAND
Number of affiliated
trade unions
1921
1924
1925
io
' 14
I
3
223
sections
2,652
2,498
2,629
T h e membership of the most important trade unions in 1924 was
as follows :
Trade
Trade
Trade
Trade
Trade
Trade
Union of Miners
Union of Metal Workers
Union of Workers and Artisans (various trades)
Union of Workers in the Building Trade . . . .
Union of Agricultural and Forestry Workers . .
Union of Railwaymen .
21,675
5,827
11,153
7,771
140,030
28,502
T h e following table indicates the number of trade unions and the
local sections of the Federation for 1921 and 1924 :
1921
Number
Number
Average
Average
Average
1924
of trade unions
10
14
of sections
2,652 2,498
number of members per trade union . 51,540 39,313
number of members per section . . .
194
189
number of sections per trade union . .
265
208
I t will be observed that there were four more trade unions in
1924 than in 1921. These new trade unions were formed in Warsaw,
b u t former Prussian Poland still remains the most important centre
of the trade unions of the Federation.
Both the number of sections and t h e membership of trade unions
have decreased. T h i s is attributable to the economic crisis and t h e
consequent wave of emigration.
I n 1924, the amount of the subsidies granted to members in
connection with unemployment, strikes and decease was 138,840 zloty
for the T r a d e Union of Miners, 162,847 zloty for the T r a d e Union
of Metal Workers, 42,637 zloty for the T r a d e Union of W o r k e r s and
Artisans and 17,508 zloty for workers in the building trade. T h e
figures for the other trade unions are not available.
T h e organisations affiliated to the Federation publish ten journals
(monthly, fortnightly and weekly) a n d issue a total of 2,500,000
copies.
T h e Federation of Christian T r a d e Unions of Poland
(Chrzescijaiiskie Zjednoczenie
Zawodoive w Rzeczyposvlitej
Polvskiej)
and
the other centrals of the Christian movement uphold the doctrine of
the international Christian movement, more particularly that of t h e
224
FREEDOM OF ASSOCIATION
Catholic movement based upon the Papal letter Rerum novarum.
They also follow patriotic and national principles. They resolutely
oppose the preparation of a social revolution and the spirit of class
hatred, and fight against any anti-religious tendencies in the workers'
movement. However t the Christian organisations are ready to
protect other definite interests of the working classes in common
with the other trade unions, and their methods are not far removed
from those of the more radical organisations mentioned above. They
frequently take part in the organisation of strikes, or organise them
themselves.
At the Congress held on 3 February 1925 at Katowitz, the
Christian trade unions of Upper Silesia were amalgamated with those
of the voievodes of Cracow and Lwow.
The following table shows the degree of organisation and the
membership of the six Christian centrals :
Head office of the Central
Trade unions
Warsaw
vilna
Poznan
Katowitz
Cracow
Lwow
. .
Totals
32
—
24
10
6
4
76
Sections
151
1
82
142
40
3
419
Membership
44.744
3.555
5,085
14,980
4.583
877
73,824
T h e sphere of action of the Christian T r a d e Union Federation
extends over the Central and Eastern voievodes. Central organisations connected with the Warsaw Central, but which up to the present
have remained separate organisations, exist in Cracow, in L w o w ,
in Polish Upper Silesia, at Poznan and Vilna. I t is probable that
these regional organisations will shortly be amalgamated. A n organ
for co-ordination has already been instituted in the form of the
Central Christian T r a d e Union Committee.
I n 1924 the central organisations at Warsaw, Cracow, Vilna
and Poznan had a total membership of 158,385, according to the
statistics of the Federation of Warsaw, counting only members w h o
had paid their subscription during the last quarter of the year. T h e
organisations at Warsaw and Cracow are the most numerous. T h e
four central organisations mentioned above include twenty-one trade
unions, seven of which are national.
I n 1925 the Christian trade unions published six periodicals, of
which about 400,000 copies were issued.
POLAND
225
Besides these important central organisations, standing respectively for different views on trade unionism and politics, there are a
few independent trade organisations, among which are the following :
the Central Organisation of Trade Unions of Intellectual Workers,
the Associations of Employees of Autonomous Bodies, and the
Associations of Civil Servants and Employees in Public Services.
In conclusion of this brief outline of the present position of trade
unionism, the following details concerning each of these organisations
are given.
The Central Organisation of Trade Unions of Intellectual Workers, created in 1925 by the amalgamation of two central organisations
of intellectual workers, includes twenty trade unions, with a total
membership of 15,383. Some of these trade unions are not organised
nationally. For example, eight independent trade unions of commercial and industrial employees are in existence in different towns.
Besides the commercial and industrial employees, the most
important categories of workers organised in the trade unions affiliated to the Organisation are as follows : technicians, engineers,
private teachers, co-operative employees and insurance clerks.
The trade unions affiliated to the Central Organisation of Trade
Unions of Intellectual Workers published ten periodicals in 1925,
of which 200,000 copies were issued.
The present central organisation publishes a monthly journal
entitled : Bìuletyn Centralnej Organizacji Zwiazków Zawodowych
Pracoivników Umystowych.
The intellectual workers are also grouped in the Polish Confederation of Intellectual Workers. This is affiliated to the International
Confederation of Intellectual Workers. The majority of the trade
unions that are affiliated to it are associations of civil servants. The
Polish Confederation of Intellectual Workers is not exclusively a trade
union central, in view of the fact that it also contains non-trade
associations.
The membership of the trade unions affiliated to the Confederation in 1925 was 68,272.
The employees of autonomous bodies are grouped in three organisations, the activity of which is co-ordinated by a common executive
committee. This committee publishes a periodical. The three organisations in question are : the Trade Union of Employees of Autonomous Bodies in the towns in the Polish Republic ; the Trade Union
of Employees of Autonomous Bodies in the provinces ; the Trade
Freedom of Association
15
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FREEDOM OF ASSOCIATION
Union of Employees of Administrative Authorities in communes in
the Polish Republic. In 1925 these three trade unions had a membership of 6,479.
Civil servants and employees in public services are very highly
organised. Their principal trade unions are the following : the Civil
Servants' Association, with a membership of 8,268, and one periodical ; the Federation of Polish Teachers, with a membership of
36,020 and five periodicals ; the Trade Union of Teachers in
Secondary Schools ; the Society of Teachers in Secondary and High
Schools, with a membership of 6,438 ; the Union of Inspectors of
High Schools, with a membership of 216 ; the Union of Teachers
in High Schools, with a membership of 124 ; the Trade Union of
Postal Employees and Telegraph and Telephone Operators, with a
membership of 19,587 ; the Trade Union of Railway Employees
affiliated to the Federation of Trade Unions, with a membership of
58,209 ; the Polish Trade Union of Railwaymen, with a membership
of 30,818 ; the Trade Union of Railwaymen of the Polish Federation
of Trade Unions, with a membership of 28,507 ; the Trade Union
of Engine Drivers, with a membership of 8,538 ; the Trade Union of
Railway Guards, with a membership of 7,315.
CHAPTER II
CONDITIONS GOVERNING THE EXISTENCE
OF TRADE UNIONS
§ 1. — The Legal Basis of the Right of Association
Before discussing the legal conditions governing the creation and
functions of trade unions, a short summary of the main legal texts
concerning this question will be given. Distinction is made between
those texts taken from the legislation of the former States governing
Poland, that has remained more or less in force in the three parts
of Poland, and those that belong only to the legislation of the
reconstituted State of Poland.
LEGISLATION OF THE STATES FORMERLY RULING POLAND
The principal Acts applying to the foundation and activity of
trade unions in the Russian legislation are as follows :
i. The Act entitled " Provisional Regulations concerning Associations and Trade Unions ", of 4 to 17 March 1906.
This Act is composed of two sections, the first dealing with
associations in general, and the second with trade associations both of
employers and workers. The second section is no longer in force in
Poland. It was replaced immediately after the reconstitution by a
new legislation. The first part, on the other hand, has remained in
force in a somewhat amended form, and, together with the new
legislation amending it, constitutes the general regulations concerning
the right of association in former Russian Poland.
2. The Decree of the Viceroy of 13 December 1816, concerning
corporations of artisans ;
3. The Russian Penal Code of 1903, that remains in force with
certain amendments in former Russian Poland. Certain provisions
of this Code will later be analysed in detail.
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FREEDOM OF ASSOCIATION
The principal Acts concerning this question in the German
legislation are as follows :
i. The Federal Industrial Code (Gewerbeordnung) of 1867.
2. The Federal Act concerning associations (Vereinsgesetz), of
1908, with the amendments that have been made since that date.
3. The Order of the Council of the People's Representatives, of
23 December 1918, concerning collective agreements, workers' and
employees' councils, and the settlement of industrial disputes.
4. The Federal Penal Code.
All these Acts remain in force in former Prussian Poland in a
slightly amended form.
The principal Acts concerning this question in the Austrian
legislation are as follows :
1. The Industrial Code (Gewerbeordnung) of 1859.
2. The Act concerning associations of 1867.
3. The Act concerning the right to combine of 1870.
4. The Austrian Penal Code.
These Acts have remained in force in former Austrian Poland.
However, the Act concerning associations has to a certain degree
ceased to be applied to workers' trade unions, as a result of a new
Polish Act.
P O L I S H LEGISLATION
The purely Polish system of legislation concerning trade associations is based upon two types of texts, one applying to the Republic
as a whole, and the other applying to certain districts in the Republic.
Thus Article 108 of the Constitution of 17 March IQ21, applying,
needless to say, to the whole country, states that :
Citizens have the light to combine and the right of assembly, and the
right to found associations and unions. The application of this right is
regulated by the Acts.
This general principle is taken into account when applying former
laws.
Among the legislative texts that do not apply to all parts of the
Republic, the following may be mentioned : the Legislative Decree
of 3 January 1919, concerning associations (Dziennik Praw, 1919,
No. 3, Text 88), was supplemented by the Act. of 3 December -1924,
and applies to former Russian Poland, where it replaced the second
part of the Russian Act of 4 to 17 March 1906, and particularly the
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229
Decree of 8 February 1919 (Dziennik Praw, No. 15, Text 209),
concerning associations of paid workers, applies to the former Kingdom of Poland and to former Austrian Poland. It applies to former
Austrian Poland particularly in accordance with the Act of 4 July 1923,
under certain conditions that will be indicated later.
This Decree is the most important of the Polish legislative Acts
concerning the right of association of workers. Special attention will
be given to the clauses of this Decree in this study.
A special system of legislation concerning the right of association
in general was instituted in the Eastern Territories by the Order of the
Commissary-General of the Eastern Territories, of 25 September 1919
(Dziennik Urzedowy, No. 25, Text 255).
Polish legislation proper applies in particular to former Russian
Poland, whereas the former legislations have remained in force
without any considerable amendment in the other districts.
Besides the Acts dealing directly with the right of association
and the functions of trade unions a certain number of legislative Acts
included in this study should be mentioned, either because they deal
with the right to combine and the right to strike, or because they deal
with the part played by trade unions in the settlement of industrial
disputes. They are as follows : the Act of 17 February 1922, concerning the regulations dealing with civil servants and salaried employees
(civil service), certain clauses of which apply to the right to combine
and the right to strike, with regard to civil servants ; the Acts of
1 August 1919, of n March 1921, of 14 February 1922, of 24 March
1923, of 18 July 1924, and the Order of the Supreme Council of the
People of former Prussian Poland, of 15 June 1919, that specifies the
part to be played by trade unions in the settlement of industrial
disputes in connection with agriculture ; and the Acts of 23 January
1920 and of 16 May 1922, concerning the settlement of disputes
between owners of buildings and caretakers.
§ 2. — Conditions governing Legal Existence of Trade Associations
The following pages deal with the conditions governing trade
associations, as laid down in the texts mentioned above. In
this analysis, the former legislation that is still in force in Prussian
Poland and in Austrian Poland, and which has not been amended to
any considerable degree, will be omitted. The reader is referred to
the studies on Germany and Austria. Further, the Acts concerning
23°
FREEDOM OF ASSOCIATION
right of association in general will not be dealt with, but only the
regulations concerning trade associations.
The general law concerning association leaves a great deal to the
personal decision of the administrative authorities. This is the case
in former Austrian Poland and particularly in the eastern territories,
where, under the Order of the Commissary-General of 25 September 1919, these authorities have considerably more extensive powers
with regard to registration and dissolution of associations than in the
rest of the country. However, employers' associations that are covered
by the general law concerning associations have, it appears, never
encountered any difficulties, and those experienced by workers'
organisations in former Austrian Poland have already ceased to exist,
since, as will be shown later, the Act of 4 July 1923 placed these
organisations under another system of legislation.
Since right of association is the object of this study, having
examined the legislations of the States that governed Poland the
important Legislative Decree of 8 February 1919 remains to be
analysed. This Legislative Decree was supplemented by the Act of
4 July 1923. It regulates the right of association of paid workers and
applies, as has been shown, to former Russian Poland and, in one
sense, to former Austrian Poland and to the eastern territories.
Under the Act of 4 July 1923, workers' trade unions created in
accordance with the Legislative Decree of 8 February 1919, whose field
of activity, as laid down in their rules, extends over the whole of
the Republican territory, may open local sections in former Austrian
Poland that are not subject to the Austrian Act of 1867 and the Order
concerning the eastern- territories of 25 September 1919. Notice of
the creation of a local section need only be given to the
local competent office of the Inspectorate of Factories and the
Starostia 1 concerned. Workers' trade unions that so desire thus
come under the provisions of the Legislative Decree of 8 February
1919, provided that they belong to a national organisation with its
head office in the former Kingdom of Poland.
Trade associations or local trade unions in former Austrian Poland
and in the eastern territories are registered by the authorities of the
voievodes, in conformity with the above-mentioned legal provisions.
If registration is refused, the persons concerned may appeal to the
1
Administrative, authority of first instance.
23I
POLAND
Ministry of the Interior. F r o m 1921 to 1927 this Ministry dealt with
eighteen cases of appeal.
T h e most important principles influencing t h e constitution and
functions of trade unions in new Poland will now be examined, as
reflected in the fundamental legislative text. T h e trade unions under
consideration, it must be repeated, are exclusively workers' trade
unions, for trade unions of employers are subject to the general
legislation concerning associations.
CONSTITUTION OF T R A D E
ASSOCIATIONS
T h e Legislative Decree of 8 February 1919 containing the regulations governing the constitution of a trade association applies to
" workers' trade unions whose aim is the protection and promotion of
t h e economic and educational interests of t h e workers in a specified
branch of labour or in related or similar branches " (section 1).
I n accordance with section 19 this Decree does not apply to trade
associations of employees of the State.
T h e conditions concerning the constitution of a trade union or
a federation of trade unions a n d t h e formalities to be fulfilled will
now be discussed.
..._._.
Conditions
relating
. . Basic
Conditions
to Persons
I n accordance with section 1 of the Legislative Decree, the following persons may become members of the same trade union : (1) paid
workers in t h e same industry ; (2) paid workers in related industries
(galezie pracy pokrewne),
a term t h a t appears to refer to industries
in connection with one and the same form of economic activity — for
example, a trade union of employees in public services that naturally
includes workers in different trades and m a n y trade unions of workers
in municipal services have been formed ; (3) paid workers in similar
industries (galezie pracy podobne) — for example, the trade unions
of workers in the building trade, clothing workers, and food a n d
drink workers include members w h o are workers in different b u t
similar trades.
I t should be observed that the term worker (pra'cownik)1
used
1
The word pracownik • also has another meaning : " salaried
employee " (German, Angestellte)
as opposed to " worker ".
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FREEDOM OF ASSOCIATION
here as meaning any person engaged in paid work, including both
manual labourers and intellectual workers, denotes in the Legislative
Decree persons who m a y belong to a trade union.
T r a d e unions m a y group themselves in federations of trade
unions, in virtue of section n of the Legislative Decree which r u n s
as follows :
Trade unions of workers in the same branch of labour or in
related or similar branches, whose head offices are in different
towns, and trade unions of workers in different branches of labour
that carry on their activity in the same town or in the same region (okrag)
may form federations of trade unions. Federations of trade unions are
registered in the same way as the separate trade unions.
I n accordance w i t h this provision, trade unions may unite to
form larger groups on the basis of two principles : ( i ) ordinary
trade unions whose scope of activity is geographically limited may
form federations of similar trade unions whose activity extends over
a larger area, or possibly over the whole territory of the State ;
(2) trade unions representing different industries may unite to form
one body for a certain area, such as a town or a district.
U n d e r the Legislative Decree, the only qualification demanded
of persons wishing to join a trade union are those concerning the
industry or trade to which they belong. One consequence of this is
that foreigners are fully entitled to become members of a trade union ;
also the Decree does not fix an age limit or require any condition
regarding domicile.
Conditions
concerning'Aims
of Trade
Unions
T h e aims of trade unions are defined in section 1 of the Legislative
Decree. T h e y are " the protection and promotion of the economic
and cultural interests of paid workers " (obrona i
popieranie
inter esow ekonomicznych
i kulturalnych
pracownikow).
T h i s definition, it will be observed, is very wide. T h e protection a n d promotion of economic interests may cover every form of activity destined
to improve the economic position of paid workers, in so far as these
forms of activity are not expressly forbidden by thè Penal Code or
other laws in force. T h e improvement of the economic position of
workers may involve the fundamental reorganisation of the economic
a n d social system ; consequently, the authorities m a k e n o difficulty
with regard to the registration of trade unions whose rules establish
the creation of a collectivist system as their m a x i m u m programme.
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233
The protection and promotion of cultural interests cover all
activities tending to raise the intellectual, moral or aesthetic level of
the workers, and to satisfy their needs in this connection. The
extent to which political activity enters into the normal activities
of trade unions constitutes one of the most difficult aspects of the
problem of freedom of trade unionism. It is not among the legitimate
aims defined by the Decree, but it is not expressly prohibited. It may
be inferred that certain activities of a political nature would be
regarded as lawful if they were used as a means of attaining the
ordinary aims of a trade union. However, as far as can be ascertained,
there is as yet no definite decision of the courts on this subject.
Trade unions are in practice connected with political parties and
reflect their influence.
Upon several occasions resolutions of a political nature have been
passed at trade union meetings, and trade unions take part in electoral
campaigns and make collections for this purpose, and generally seek
to influence the political views of their members, although in a more
indirect way than political parties.
Several cases have occurred where general strikes of a political
as well as industrial character have been organised and declared by
trade unions, without proceedings being taken on these grounds
against the trade unions.
A dispute of this kind, that was of as great political as industrial
importance, took place in Poland on 13 October 1923, lasted until
15 November, and towards the end of this period gave rise to serious
problems concerning the right to strike in public services. At this
time a series of strikes had been declared in various branches of
industry for economic reasons, particularly in order to obtain an
increase of wages corresponding to the considerable rise in the cost
of living. At the end of October the railwaymen on several
railway systems came out, and the strike threatened to spread to all
the railways in the State. The Government then decided partly
to militarise the railways, calling up the workers who were
on strike for their military service, and at Cracow the Commander-General of the Army Corps announced that courts
martial had been created to judge railwaymen who had been
called up and refused to obey orders. The trade union centrals and
the workers' Socialist and National Radical Parties protested violently
against the militarisation and particularly against the creation of
courts marti"1.!, denouncing these measures as illegal and contrary to
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FREEDOM OF ASSOCIATION
the Constitution. A general strike was proclaimed. Blood was shed
in Cracow, and in some other localities. However, an agreement was
reached on 6 November between the Government and the representatives of the Socialist Party. T h e railwaymen and other workers
resumed work. T h e Government withdrew the militarisation order,
a n d agreed that n o worker would be dismissed for having taken part
in the strike \
Formalities
to be
Fulfilled
T h e Legislative Decree of 8 F e b r u a r y 1919 established a system
for the registration of t r a d e ' u n i o n s . I n no case is permission made
to depend upon the private approval of the authorities granting such
permission.
According to section 8 of the Legislative Decree, " registration
m a y only be refused in the following cases : (1) if the rules of the
trade union do not conform to t h e requirements of sections 1 and 5
of the Legislative Decree ; (2) if these rules are against the law. "
Section 1 specifying the trade unions t h a t are subject to the
provisions of the Legislative Decree has already been given above.
Section 5 requires that the rules of a trade union shall contain
t h e following :
(a) the name of the trade union, the geographical sphere of its
activity and its head office ;
(b) the aims and forms of activity of the trade union ;
(c) the conditions upon which members are admitted or asked to
resign ;
(d) the way in which subscriptions are collected from members ;
(e) the rights and duties of the trade union officials ;
(/) the election, the period of office and the forms of activity of these
officials ;
(g) the way in which the trade union funds are administered ;
(h) the procedure for amending the rules and for winding up the
trade union, and the way in which the funds shall be disposed of in case
of dissolution.
T r a d e unions are obliged to draw up a special programme that
comes under the head of the protection and promotion of t h e economic
and educational interests of workers in certain specified industries.
T h e y are also required to accept as members workers in related or
similar branches of industry a n d their rules m u s t contain provisions
concerning certain points as stated in the Legislative Decree, but they
1
Official communiqué on the strike as a whole published by the
Ministry of Labour and Social Welfare in the Monitor Polski.
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2
35
are left entirely free to decide the way in which they deal with these
questions.
Besides these special conditions, the constitution of trade unions
is subject to one general condition, that their rules shall not be
against the law, that is to say, against any law of the country.
If all these conditions have been fulfilled, the authorities are
obliged to register the trade union.
Should the competent authority refuse to register a trade union,
the persons organising the trade union have the right to appeal to an
ordinary competent court within a period of one month from the day
upon which notice of the refusal, together with reasons explaining
it, was received (section 9 of the Legislative Decree).
If no reply is given within a period of twenty days from the date
upon which application for registration was made, the trade union
ma5T automatically be considered as registered (section 10).
According to information received from the Ministry of Labour
and Social Welfare, up to the date upon which this information was
given, three complaints against the decisions of factory inspectors
refusing to register trade unions had been brought before the courts
in virtue of section 9 of the Legislative Decree. In two cases the
plaintiffs had been non-suited, and the third was still pending.
Before the adoption of the Act of 4 July 1923 concerning the
creation of sections of national trade unions in former Austrian
Poland and in the eastern territories, the administrative authorities in
these two regions, in accordance with the general legislation concerning associations, had the right to refuse to register trade associations.
Under this general legislation, the authorities were given considerable
freedom with regard to their decisions. Numerous complaints were
made by the organisations concerned. Among them may be mentioned the report of the Central Trade Union Committee that was
submitted to the Ministry of the Interior in October 1922, concerning
the difficulties experienced by trade unions under the administration
of former Austrian Poland \ Under the Act of 4 July 1923, trade
unions in former Austrian Poland and the eastern territories became
subject to the Legislative Decree of 8 February 1919.
1
Report of the Central Trade Union Committee, Warsaw, 1925.
P- 134-
236
FREEDOM OF ASSOCIATION
Administrative
Procedure
Trade unions shall be registered by the organs of the Ministry
of Labour and Social Welfare (section 2 of the Legislative Decree).
The application for registration shall be signed by at least three
of the foundation members, and shall be accompanied by two copies
of the draft of the rules of the trade union (section 3).
Applications for registration shall be sent to the inspector of
factories in the district (obwad) in which the trade union intends to
establish its head office (section 3).
Applications for registration of trade unions whose rules provide
for the formation of local sections in the whole of the State must be
sent to the head inspector of factories (section 4).
If a trade union of this kind is registered, its local sections do
not require to be specially registered. Notice of the creation of a
local section need only be given to the competent factory inspector
(section 4).
Federations or unions of trade unions are registered under the
same conditions, and according to the same procedure as ordinary
trade unions. Any amendment of the rules of a trade union or of
a federation of trade unions must be registered.
FUNCTIONS AND DISSOLUTION OF T R A D E UNIONS
Interior
Organisation
The provisions of the Legislative Decree relating to the interior
organisation of trade unions do not indicate the nature of this organisation. Section 5, the text of which has already been given in
connection with the constitution of trade unions, only requires that
the rules of each trade union shall contain provisions concerning the
points indicated above.
The Legislative Decree stipulates that although this is in no sense
compulsory, the rules of trade unions may include " provisions
concerning the penalties or fines to be imposed on members who fail
to comply with the rules of the trade union " (section 7 of Legislative
Decree). Thus trade unions have the right to inflict upon members
who contravene any rules of the trade union penalties such as the
suppression of certain rights and the payment of fines as provided
for in the rules. They are also entirely free to expel members in
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237
accordance with conditions laid down in their rules. N o restriction
is laid upon the choice of officials of a trade union.
Finally, under the Legislative Decree, trade unions are free to
decide t h e m a n n e r in which they shall be dissolved if necessary. T h e
Decree in section 5, as already quoted, simply requires t h a t the rules
of a trade union shall indicate the way in which a trade u n i o n shall
be liquidated and how to dispose of the property of the trade union.
Siate
Supervision
T r a d e unions are supervised by the Inspectorate of Factories,
depending exclusively upon t h e Ministry of Labour a n d Social Welfare
and the judicial authorities. T h e rules, concerning supervision of
trade unions as exercised by factory inspectors are contained in
a single provision t h a t requires the administrative committees of
trade unions to submit copies of the reports read at their general
meetings to the competent factory inspectors within fourteen days
after such meetings. A n y infringement of this provision renders the
trade union liable to a fine (section 13 of the Legislative Decree).
T h e right to inflict penalties upon trade unions is not within t h e
competence of the Inspectorate of Factories, but belongs to t h e courts.
Section 14 of the Legislative Decree states t h a t :
Should the activity of a trade union be directed towards any aim
that constitutes an offence or infringement of the law, the district court
constituted as a penal court may either impose a fine upon the offender or
suspend the trade union for a certain period or cause the trade union to
be dissolved 1.
According to a decision of the Supreme Court, decisions of the
district courts in this matter are final and no appeal can be made.
I n most cases accusations brought against a trade union will be found
1
In a Circular sent to the Ministry of Labour and Social Welfare by
the Ministry of Justice commenting upon section 14 of the Legislative
Decree of 1919, the Ministry of Justice regards the dissolution of a trade
union as a measure only to be adopted in extreme cases. " The activity
of a trade union that constitutes an offence such as an infringement of
the law is in most cases due to one important member of the trade union
and cannot always be considered as an expression of the spirit of the
trade union in general or of the majority of the members who, if the trade
union were dissolved or were temporarily suspended, would be deprived
of their trade organisation. " In such cases, in the opinion of the Ministry
of Justice, the penalty provided for in the general penal provisions should
be imposed upon the offending member or members.
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FREEDOM OF ASSOCIATION
to be based upon some form of the activity of the trade union that
is against the interests of the Statej for example, co-operation with
political organisations whose aim is to overthrow the existing constitution of the Polish State, lending premises to such organisations for
meetings and conferences, being in possession of illegal or confiscated
literature, lending premises to trade unions in the knowledge that
they have been accused and found guilty of pursuing unlawful
activity, hiding explosives, storing tangible proofs of connection
with revolutionary activities (flags, etc.).
In addition, trade unions have sometimes been dissolved because
they wished to assume the right of " exclusion ", and to force workers
to join the trade union. This was so in the case of the brass workers'
section in the town of Sicdlce, that was dissolved because its members
wished to use violence in forcing persons who were not members of
the trade union to go on strike.
Among the provisions of the laws at present in torce, with which
the activity of trade unions may clash to such an extent as to cause
them to be dissolved, the sections of the Penal Code dealing with
attempts upon the security of the State and those concerning civil
unrest and revolt may be mentioned (sections 99-102 and 120-137 of
the Penal Gode in force in former Russian Poland and amended by
the Polish legislation ; similar sections in the German and Austrian
Penal Codes).
According to information received from the Ministry of Labour
and Social Welfare, the following workers' trade unions and sections
of trade unions have been dissolved in virtue of section 14 of the
Legislative Decree of 8 February 1919, from the date upon which
this Decree came into force until 20 October 1926 ; (a) 3 councils
(rady), that is to say, trade unions whose activity is geographically
limited ; (b) 26 trade unions registered by the Inspector-General of
Factories ; (c) 2 trade unions registered by the Inspector of Factories
in the 26th district (arrondissement) ; (d) 16 local sections.
It would appear that in every case or in almost every case of
dissolution, the trade union in question had Communistic tendencies
and was engaged in harmful political activity. Only one case of
temporary suspension of a trade union (for a period of three years)
is recorded, that of the " council " (rada) of Kielce.
In the opinion that trade unions, whose founders had been
members of the administration of trade unions that had been dissolved
because their activity was not in accordance with the interests of the
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239
State, should not be re-registered, the Inspector-General of Factories,
acting upon the advice of the district court (arrondissement) and in
accordance with the opinion of the Ministries of Justice and of the
Interior, refused the applications for such registration. In the case
of one of these refusals, the trade union of workers in the building
trade (masons, carpenters, and similar trades) appealed to the
Supreme Administrative Court. On 23 February 1926 the Court
recognised the justice of the complaint, stating that registration could
only be refused under the Decree if the rules of a trade union did not
conform to section 1 (aim of the trade union) and section 5 (contents
of the rules), or if the rules were against the law. Consequently the
refusal of the Inspector-General of Factories was judged to be legally
unfounded. It would only have been justified if upon investigation
the new trade union had been proved to be a veiled form of the old
trade union that had been dissolved in accordance with the prescription of the Act, in which case its activity would come within the
jurisdiction of the Act if it were again proved to be illegal.
CHAPTER III
POSSIBILITIES OF TRADE UNION ACTION
§ 1. — Activity in the Sphere of Civil Law
A trade union that is registered under the provisions of the
Legislative Decree of 8 February 1919 has a legal personality. It may
acquire rights and assume obligations. In particular, it may possess
real estate, receive legacies and gifts, conclude collective agreements
and appear in court (section 6 of the Legislative Decree).
§ 2. — Activity in the Social and Economic Sphere
Under the Legislative Decree trade unions are expressly exempt
from the application of section 910 of the Civil Code in accordance
with which legacies and gifts to philanthropic institutions and
institutions of public utility must be confirmed by the head of the
State (section 6).
Trade organisations of employers and workers are completely free
with regard to the creation of various social and economic institutions
such as mutual aid funds, co-onerative societies, cheap dwellings,
vocational training centres. They are also free to subsidise such
institutions.
§ 3. — Representation of Occupational Interests in State
Institutions
The Legislative Decree of 8 February 1919 contains one most
important provision concerning the right of trade unions to representation in State institutions. Section 15 stipulates that :
When any collective institution in connection with the Ministry of
Labour and Social Welfare ór its organs is created, representatives of
trade unions shall be considered as representing the occupational interests
of the working classes.
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24I
Under this section workers' trade unions are regarded in one
sense as institutions of public law.
Up to the present section 15 of the Legislative Decree has been
applied when certain advisory bodies in connection with the Ministry
of Labour were created, in particular, the National Emigration Council, the Social Insurance Council and the Social Welfare Council.
The Ministry of Labour also consults workers' trade unions on
important questions directly concerning the working classes.
Moreover, workers' trade unions and employers' organisations
are represented on the advisory committees in connection with the
State labour exchanges in conformity with the Decree of 27 January
1919, concerning State labour exchanges.
Finally, the Bill concerning the creation of a Provisional National
Economic Council submitted to the Legislative Chambers by the
Government provides that the various trade organisations of employers
and workers shall appoint a certain number of the members of this
Council.
T H E P A R T PLAYED BY T R A D E UNIONS IN T H E CONCLUSION OF
AGREEMENTS AND THE SETTLEMENT OF COLLECTIVE DISPUTES
A Bill at present in preparation will be submitted to Parliament,
in which the part played by trade unions in the conclusion of collective agreements is defined in detail. Until this general Act comes
into force, the conclusion of collective agreements and the settlement
of labour disputes are dealt with in certain clauses to be found in
certain Acts applying respectively to the various branches of industry.
Thus, with regard to agriculture, trade unions are empowered
to take part in pronouncing final decisions in virtue of the Acts
concerning the settlement of collective disputes. A list of these Acts
has been given in Chapter II, § 1. They establish a system of conciliation and arbitration over almost the entire Republic. Under these Acts
delegates of employers' and workers' trade unions are considered as
representing the whole body of employers and workers 1 both in
connection with the conclusion of collective agreements and the
formation of conciliation and arbitration boards.
1
Under the Acts oí 23 Jan. 1920 and 16 May 1922, the provisions
of the Acts concerning agriculture apply to disputes between owners of
buildings in towns and caretakers.
Freedom of Association
16
242
FREEDOM OF ASSOCIATION
Should no trade union of the persons concerned exist in the
district or town in question, or should the existing organisations be
unable to agree upon the choice of representatives, or should these
organisations refuse to take part in the conciliation or arbitration
board called by the inspector of factories, a mass meeting of the
persons concerned must be officially convened for the election of
delegates.
All employers and workers in the districts and towns concerned
are legally bound by the collective agreements concluded and
decisions taken by the arbitration boards created upon agreement
between the parties concerned (sections 3 and 9 of the Act of
1 August IQIQ).
If individual contracts of employment contain less favourable provisions than the corresponding provisions in the collective agreement
or the decision of an arbitration board, these provisions are null and
are automatically replaced by the provisions of the agreement or the
arbitral decision (section 18 of the Act of 1 August 1919). The
collective agreements and arbitral decisions in question are
enforceable by execution in conformity with the general prescriptions of the civil law (sections 20 and 21 of the Act of August 1919).
A new principle has been introduced into this sphere by the
Act of 11 March 1921 and several later Acts : if a dispute cannot
be settled by means of optional conciliation or arbitration, the Ministry
of Labour and Social Welfare has the right to appoint an extraordinary
arbitration board. The decisions of this board are binding even without
first having obtained the consent of one or both parties. The power
of these boards may extend either over a district or a town or even
over the whole State.
These.boards must be composed of three Government representatives and equal numbers of representatives of the two parties concerned. This number shall be determined by the Ministry and must
not be less than three. Legally registered trade unions of employers
and workers whose sphere of activity extends over the territory
concerned in the dispute have the right to appoint representatives.
Should either party refuse to appoint representatives, or should the
representatives refuse to take part in the proceedings of the board,
the decision of the three Government delegates shall be valid.
Under the legal provisions concerning extraordinary arbitration
boards, trade associations have thus the right to take part in pronouncing final decisions affecting either a specified region or even the
POLAND
243
whole country, and in fixing the conditions of employment in a
specified branch of industry.
T H E RIGHT
TO COMBINE AND TO STRIKE
The right to combine and to strike is established and guaranteed
in a general way by the Constitution in Article 108, that states,
however, that " the application of these rights is regulated by the
Acts ". A more detailed regulation must therefore be established
through the legal channels, and since as yet no text has been
promulgated on this subject, other than the Act of 17 February 1922,
concerning the statute dealing with civil servants and employees, the
position is somewhat obscure and sometimes gives rise to protests on
the part of the associations and the press, either accusing the administrative or judicial authorities of unjustifiable restrictions, or on the
contrary, of complaining that the rights guaranteed by the Constitution have been abused.
Among the existing legislative texts on this subject the Act of
17 February 1922, regulating the statute dealing with civil servants
and employees, has been mentioned. One provision of Chapter II
of this Act stipulates that public officials shall be forbidden to take
part in associations or combinations which may interfere with-the
normal course of public administration or the normal performance of
their official duties.
Consequently State employees have the right to belong to associations that do not endanger the normal course of public administration
and the normal performance of official duties, but they are expressly
forbidden to combine in any way that might involve a strike.
Reference has been made in the chapter on the legal basis of the
right of association to the serious dispute that occurred in October 1923, beginning with a railway strike and ending in a general
strike. This strike was to some extent political, but also gave rise
to problems connected with trade unionism. In particular, it brought
up the question of the constitutional right to combine and the rule
forbidding public officials to combine.
The continued uncertainty regarding this question is due mainly
to the fact that certain sections of the Russian Penal Code of 1903
that clash with the principles of the Constitution have remained in
force in former Russian Poland. In particular, section 367 states :
244
FREEDOM OF ASSOCIATION
Workers in factories connected with the mining industry, in railway
workshops, at ports, and similar placesi, and, generally speaking, workers
in an undertaking the interruption of which may be detrimental to the
interests of the local population, who combine to cease working in order
to force their employer to increase their wages before the expiration of the
contract of employment, or to make any change in other conditions of
employment, shall be liable to a period of imprisonment not exceeding
six months.
According to section 368, persons inciting others to combine are
liable to a period of imprisonment not exceeding six years.
Section 509 lays down penalties for the use of violence or threats
in order to force workers to take part in any combined action.
T h e s e provisions have become more or less obsolete. However,
in several cases, particularly in agriculture, t h e courts have passed
sentences based on the principle reflected in the sections in question,
that is to say, t h e principle that strikes are illegal in so far as they
may be detrimental to' the interests of the community. As-a result
of these sentences, the Government in 1922 submitted a Bill to the
Constituent Assembly on " measures to ensure freedom to provide,
accept and execute employment ", annulling the sections of the
Russian Penal Code restricting the right to combine. T h e Bill did
not come up for discussion by the Constituent Assembly, and the
Government has again submitted it to the present Parliament.
Besides provisions guaranteeing the right to combine a n d to
strike, the Bill in question included clauses determining the limits of
this right, and assuring the freedom of the individual not to combine
or take part in a strike. T h e Bill provided for penalties in cases of
action to restrict the freedom of the individual to work during a
strike or other combined action.
T h e Bill was recently withdrawn by the Government, in view
of the protests raised in Parliament, particularly by the Tabour P a r t y ,
a n d a new Bill is now in preparation.
Until the legislation in preparation comes into force, the sections
of the Russian, German and Austrian Penal Codes concerning the
various forms of violence committed in connection with strikes remain
in force and continue to be applied.
CONCLUSION
The position of Polish trade associations may be briefly summarised as follows :
It has been shown that the right of association and the right to
combine are, in general terms, guaranteed by the Constitution, and
the principle of freedom of trade unionism is thus definitely laid down.
Distinction must be made between the two types of trade
associations as shown in the legal systems governing them :
(i) Employers' associations and associations of civil servants ;
(2) Associations of paid workers.
The former are governed by the general law concerning association in the whole of Poland. The latter are, in the greater part of
the country, subject to a special system under which they receive
certain rights and assume certain obligations.
The Legislative Decree of 8 February 1919, establishing this
special system, permits workers to unite " for the protection of their
economic and educational interests ". This definition may be taken
to cover very different forms of activity. Further, the legislation
expressly states that workers' trade unions shall be regarded as
representing the occupational interests of the whole body of workers.
A place has already been reserved for them in certain Government
organs, and, until the Act now in preparation concerning their share
in the conclusion of collective agreements come into force, several
Acts establish their right to take part, in drawing up agreements and
settling labour disputes in connection with agriculture.
Although not expressly mentioned in the fundamental Legislative
Decree, no restrictions are as a general rule placed upon the right to
combine and to strike, except in the case of civil servants, who, by
a special Act, are expressly forbidden to take part in any strike, on
the ground that such action might " interfere with the normal course
of public administration and with the performance of official duties."
246
FREEDOM OF ASSOCIATION
Upon the reconstitution of Poland, the question of freedom of
trade unionism was raised, and has been widely discussed. Special
stress has been laid upon the right to combine and the right to strike,
and on the freedom of the individual not to take part in action of this
kind. It is clear that there is a need for legislation on certain points.
In some places the old legislation still in force clashes with the
principles established by the new State, but certain Acts that have
already been adopted, such as the Act of 4 July 1923, bringing former
Austrian Poland under the trade union laws established in the former
Kingdom of the Congress, and other Acts in preparation, such as
the Bill to annul certain sections of the Russian Penal Code( constitute
an important advance towards unifying and perfecting Polish trade
union law.
BIBLIOGRAPHY
DAGNAN, M. K . " Syndicats professionnels de la classe ouvrière
en Pologne. " Praca i Opieka Spoleczna, fourth year, No. i.
LANDY, Adam. " Stan organizacji zawodowej klasy pracujacej w
Polsce. " Bulletin du ministère du Travail et de l'Assistance
sociale,
1919, No. 5.
N. N. Ruch zawodowy w Polsce.
PiETROwSKY, A.
wych. Poznan, 1910.
Powstanie
Warsaw, 1922.
i rozwoj polskich
zwiazkow
zawodo-
RYCHXINSKY, Stanislas. " Les syndicats professionnels des travailleurs en Pologne ". Bulletin du ministère du Travail et de l'Assistance
sociale, Warsaw, 1927.
Rocznik
Pracowniczych
Warsaw, 1927.
Sprawozdania
Komisji
Zwiazkow
Centralnej
Zawodowych
Zwiazkow
w
Polsce,
Zawodowych
1925.
za lata :
IÇI8-1Ç20, 1Ç20-IÇ2I i 1C22-1C2¡
Sprawozdanie
1919.
Zjazdii Polskich
Zwiazkow
Zawodowych.
Warsaw-,
BALTIC STATES
ESTONIA, LATVIA, AND LITHUANIA
INTRODUCTION
GENERAL HISTORY
The three Baltic States, Estonia, Latvia, and Lithuania, before
their declaration of independence formed a part of the Russian
Empire. The history of the trade union movement and its legal
vicissitudes in these countries is thus Russian history, and the formation and development of trade unions was hindered accordingly by
the stringent limitations of the former Russian legislation.
In the period when associations were absolutely forbidden, the
protection of trade interests was legally possible only through the
authorised temperance societies and cultural associations, or through
burial and sickness organisations. The former class was made up of
intellectuals and craftsmen as well as other workers, and was the
starting point of a national and political Socialistic movement. The
burial and sickness organisations may be regarded as the origins of
trade unions. The printers' union in Tartu (Dorpat), for example,
originated in the printers' burial and sickness association founded in
1819, which was made up of employers as well as workers.
Secret societies were also founded, and rapidly expanded here
as in other parts of Russia.
The Russian revolution of 1905, andl the legal relief which it
temporarily brought, had considerable results, in the Baltic States.
Trade unions could now openly be organised, and it appears from a
report of the Russian Minister of Commerce for the years 1906 and
1907 that in Estonia 16 unions, with a membership of about 2,500,
250
FREEDOM OF ASSOCIATION
were registered. The Riga Manufacturers' Alliance was founded
during this period. A Baltic printers' union, extending over a large
part of the Baltic area, was also organised.
The reaction which followed soon put an end to this development.
The Courts weakened the effect of the laws by a narrow interpretation, and many obnoxious unions were dissolved by the authorities.
If, for example, the object of a workers' union was stated in the rules
to be " to struggle for the improvement of the economic and legal
position and to further the spiritual, moral, and political development
of the workers ", the union was declared to be political and therefore
illegal. A printers' union was dissolved on the ground that it possessed
a second library in one of its branches while the rules provided only
for " a library " and not " libraries ".
In a report of the Union of Industrial and Clerical Employees for
the commercial year 1911-1912, it is stated:
It is difficult for the workers to organise ; if a trade union becomes
individually fairly strong ana shows signs of some activity it is immediately dissolved. Most of the unions were dissolved because they gave
support to members on strike.
The majority of the trade unions were thus suppressed, and secret
societies were again organised. This was the state of affairs before
the war and during the war until 1917. The revolution of that year
once more brought about freedom of association, and the Act of
12 April 1917 gave all citizens the right of association and assembly.
This legislation, however, only partially and temporarily affected the
Baltic States. The war had resulted from 1915 on in the occupation
of a portion of Lithuania and Latvia by German troops. In the last
years of the war still further territories were occupied ; all freedom of
association and assembly was, of course, suspended during the military
occupation.
The end of the war gave the three States political autonomy, and
in their Declarations of Independence political and economic liberties
were assured.
T H E ECONOMIC, SOCIAL, AND POLITICAI, SITUATION
The three States, thus similarly affected by external events,
present also the same internal features. The Baltic States are agricultural. For centuries they were characterised by large landed estates
in the hands of the nobility, while the masses of Estonian, Lettish,
BALTIC STATES
25I
and Lithuanian population provided the necessary labour for the
owners. The political independence of these nations led to agrarian
reform, partition of the large estates and redistribution of the land
among the population. There still remains, however, a considerable
peasant proletariat.
Important differences exist between Estonia and Latvia on. the
one hand and Lithuania on the other. Estonia and Latvia were
formerly the dominions of a German order of knighthood. Both countries extend along the Baltic Sea and have broad open coasts and good
harbours. During the feudal regime they contained great cities,
ancient marts, and seats of industry. The extensive maritime and
commercial relations which cities like Riga and Reval enjoyed
even during the Middle Ages are well known. They were
members of the Hanseatic League; the guild's flourished here as in
other European cities, and vestiges of them remain even to this day \
Before the war Riga was one of the greatest cities of Russia, and a
most important industrial and commercial centre, where, according to
the statistics of the Treasury, there were 372 establishments employing
87,606 workers. The war had a particularly devastating effect on
the city. In 1915 by order of the Russian military authorities the
industrial installations were removed to Central Russia in order to
avoid their falling into the hands of German troops, and at the same
time about 70,000 industrial workers with their families were removed
to Russia. On account of the changed political situation after the war
and the suspension of commercial relations with Russia, economic
equilibrium has not yet been restored, and the relative importance
of agriculture in the economic life is at present greater than before
the war.
Most of Lithuania formerly belonged to the Kingdom of Poland.
It is an inland State, and had no seaport until Memel was joined to
it. It is also an agricultural State in the sense that its incipient
industries and its commerce are entirely built up on agriculture. There
are wood and leather industries, distilleries, breweries, etc. The cities
are small in number and size; out of a population of 2,000,000 only
about 330,000 are workers, and two-thirds of these are agricultural
workers.
The workers' element is thus stronger and more highly organised
in Estonia and Latvia than in Lithuania.
1
A brotherhood of journeyman bakers is shown by documents to
have existed in Riga as early as the year 1235.
252
FREEDOM OF ASSOCIATION
The politics of these young countries are naturally most concerned
with the maintenance and preservation of their newly-acquired independence. This motive has led them to encroach on the political and
other liberties of their citizens. The proximity of the Russian Soviet
Empire, Communist propaganda, and even to some extent internal
Communist uprisings, gave the Governments an excuse for strong
measures against movements which bore any kind of political character and for drastic steps when the existing order was considered
to be in danger, and, finally, even for the proclamation of martial law
when it might be believed that there was no other way of maintaining
the existing constitution of the country.
EFFECTS ON T R A D E UNIONISM AND I T S LEGAL STATUS
If all these facts are borne in mind it is clear that the trade
union movement is bound to be in a very primitive stage. It practically dates from the independence of the three States. In view
of the economic conditions of.the countries, it cannot be very strongly
developed. It is stronger and more centralised in Estonia and Latvia
than in Lithuania, where racial and religious differences impede its
development. Finally, it is a well-known fact that an incipient and
rather feeble workers' movement easily becomes radical and pursues
political as well as industrial ends. This involves great dangers and
difficulties, for the policy of government outlined above is bound to
react especially against the trade unions. At the time when the States
were founded their attitude was apparently friendly to trade unionism,
but this soon changed and the subsequent trade union legislation became harsher, the existing laws were not interpreted favourably to
the unions, the founding of unions was impeded in many ways (in
Lithuania), numerous unions were dissolved (especially in Estonia),
members and leaders of unions were prosecuted, and the existing unions
were kept under close supervision. In detail, however, the scope of
the limitations differs in the three countries according to the extent
to which the responsible causes are present.
Many circumstances have thus interfered with the development
of trade unionism, and this will appear in the legal position of the
unions. There are signs, however, that the internal and external
security of the States will do away with the obstacles and relieve the
situation.
ESTONIA
§ 1. — The Present Position of the Unions
When the Russian revolution of 1917 did away with the barriers
to freedom of association, numerous trade unions were founded in the
territorj' which is now Estonia and began to develop zealous activities.
This movement, however, came to a standstill as a result of the occupation of the country by German troops. After their withdrawal in
November 1918, the first independent Estonian Government, in its
proclamation of 16 November, announced that all political and civil
rights, including freedom of association, assembly, and striking, were
recognised to the widest extent. The movement then was revived.
Its legal basis was the Russian Act of Kerenski dated 12 April 1917,
which was supplemented by an Act passed on 21 Marclrigïg regulating
the registration of associations. Trade unions were now able to
develop freely. But the struggle against Communism, which in the
following years brought violent disturbances in the young State,
affected precisely the workers' organisations, in which at that time
political tendencies far outweighed strictly industrial aims. It is not
yet possible to present an objectively accurate statement of these
events and their relations. A few occurrences will be recounted in the
manner in which they became known.
In 1919 the Federation of Estonian Unions in Tallinn (Reval)
was dissolved, having come under Communist leadership. It was then
replaced by a local central organisation.
In 1920 the Estonian Union of Railwaymen was dissolved by the
Government ; the committee of the Postal, Telegraph, and Telephone Employees' Union was arrested and banished from the country.
The occasion for this was the proclamation of a general strike.
In 1922 a revolt took place on 1 May, in the suppression of which
a Communist leader lost his life.
254
FREEDOM OF ASSOCIATION
Since a close supervision was exercised over associations in Tallinn, the unions moved their central office to Tartu (Dorpat). In
1924 a Communist conspiracy was discovered there, martial law was
declared in the city, and the Minister of the Interior was granted
extraordinary powers. Many houses were searched, members of unions
were arrested, and most of the trade unions in the country were dissolved. Towards the end of 1924 only ten of the dissolved unions
had been able to resume their activities.
This was a severe blow to the trade union movement in Estonia,
but it was not the only one. The end of 1924 brought a new Communist revolt, with the result that a great many unions were again dissolved. In Tallinn almost all associations were affected. It has not
been possible to ascertain the figures for the whole country, but in a
single registration district 33 out of 82 registered associations were
dissolved 1 .
The trade union movement, which had been completely annihilated, began to reappear in 1925, when the internal situation appears
to have become settled. Finally in March 1026 new legislation governing associations was passed.
Precise information can hardly be given as to the present position
of the movement. According to the data of the Courts of Registration,
at the end of Februaty 1925 there were in Estonia altogether 370 trade
unions and 44 employers' organisations.
Of the latter, the most important is the Estonian Manufacturers'
Association, which is primarily an economic association of large-scale
industry, but which also represents the interests of the employers as
against the workers. It has branches in Tartu and Narva and in 1925
included 55 members. Small-scale industry and the handicrafts are
organised in the Association of Medium and Small Scale Manufacturers.
Of the trade unions, 113 belong to agriculture alone, according
to the figures of the Courts of Registration. Nineteen fishermen's
unions have been founded. Next come printers (9), textile workers (5),
commercial and clerical employees (6), woodworkers (3), longshoremen (3), railwaymen (9), domestic servants (4). Other trades and
branches of industry have only one or two unions indicated. There
1
In a memorial presented to the International Labour Office by
leaders of the Social-Democratic Party, trade unionists and other workers'
representatives of Estonia, it is stated that in Jan. 1924 alone about
300 workers' organisations were suppressed.
255
BALTIC STATES
are numerous associations of teachers (81). Officials have 9 unions,
not counting associations of railway officials.
Membership figures are more uncertain and defective. Questionnaires showed the following data for railwaymen's unions and several
Tartu trade unions :
RAILWAYMAN
Union
Members
Engine drivers
Clerical employees
Railway officials
Station masters
Employees and workers engaged in railway
construction
Trainmen
Station employees
Station officials
266
202
247
53
640
224
324
352
TARTU
Members
Union
Tailors
Printers
Domestic servants
Building workers
Metal workers
Food and drink workers
Painters
262
130
129
92
75
58
30
The Union of Postal, Telegraph, and Telephone Employees has
a membership of about 1,000 and the nine printers' unions 900.
The relations between individual federations are at present weak,
since the old central councils have altogether disappeared.
§ 2. — Existing Legislation
T H E FOUNDATION
The fundamental principle is expressed in Article 18 of the
Constitution, according to which " all citizens of Estonia have the
right to hold meetings without disturbing the public peace and without
weapons. The right of association is recognised. The right to strike
is guaranteed. These rights can be limited by legislation only in the
interests of public safety. " This is supplemented by the two Acts
2 s6
FREEDOM OF ASSOCIATION
of 26 March 1926, the one respecting associations and federations and
t h e other the registration of associations a n d federations *. T r a d e
unions come under associations in general a n d do not receive special
legislative attention.
I t is clear from the wording of the Constitution that freedom of
association and) assembly is in principle recognised. Freedom, of
assembly is, however, recognised by the Constitution only for citizens
of Estonia. Freedom of association of aliens is limited also by the
Act respecting associations, since the registration of associations
founded by them requires the permission of the Government (section 2, A . R . ) .
T h e rights of Estonians are limited merely in t h a t persons under
18 years of age have only an advisory voice in registered associations;
founders of an assocation must be adults (section 10, A . A . ) .
T h e Constitution seeks to guarantee freedom of association especially by the provision that legislation can limit such rights only in
t h e interests of public safety. According to the legal principle that
exceptions are to be interpreted in a narrow sense, this must be taken
to mean t h a t a general legislative limitation of freedom of association
is unconstitutional and only exceptional measures are permissible, in
cases where the interests of public safety can be protected in no other
way.
A p a r t from this guarantee of the Constitution there is no special
protection under civil law 2 .
T H E LEGAI, STATUS OF T R A D E UNIONS
T r a d e unions are regarded as associations within the meaning of
t h e Act when they are organisations of three or more persons whose
common activity does not pursue an object connected with material
profit (section i , A . A . ) . Federations are organisations of two or
more such associations.
T h e law distinguishes between registered and unregistered and
betweer. political and non-political associations. T h i s distinction must
also be observed here.
1
Act respecting associations = A.A. Act respecting registration = A.R.
The International Draft Convention concerning the rights of association and combination of agricultural workers was ratified with effect
from 8 Sept. 1922.
2
BALTIC STATES
257
Legal Regulations for Founding and Activity
Respecting the organisation of associations, the Act requires formalities only in the case of political and registered association.
A political association or federation must have rules and an executive or committee of management (section 3, par. 1, A.A.). The
•same applies to non-political associations and federations in so far as
they include political objects in their programme of action (section 5,
A.A.). In the case of trade unions the rules usually provide for an
auditing committee.
Political associations must state in their rules at least the name
and object of the association and the composition and headquarters
of the committee of management (section 4, A.A.) ; the rules of
registered associations must also contain information as to the general
meeting, conditions for admission, withdrawal and exclusion of members, contributions and the procedure for winding up the association
(section 6, A.R.).
Only adults can be members of the committee of management of
ii registered association. Foreigners may not be eligible for election ;
if the rules provide that they may, the approval of the Government
is required for registration (section 2, par. 3, clause 1, A.R.).
Respecting the objects.of associations, the Act draws certain
limits, which are for the most part irrelevant as far as trade unions
are concerned. The founding of associations for the purpose of military exercises (section 6, A.A.) or for the purpose of material profit
(section 1, A.A. ; section 2, A.R.) is not allowed without the approval
of the Minister of the Interior. For the rest, the object of the union
must not be contrary to the Criminal Code, otherwise the association
is forbidden (section 11, A.A.) 1 .
These material provisions are supplemented by certain formal
conditions which vary according to the category in which the association falls. For non-political unregistered associations, there are no
regulations. But the case is different with political associations. By
section 3, par. 2, A.A., the committee of the political association or
federation is obliged within two weeks after the founding to notify
the local police authorities of the rules and deposit a list of the
members of the committee. A similar procedure is required in case
of alteration of the rules or of the composition of the committee and
1
But cf. the •provisions of the Penal Code concerning strikes, infra,
p p . 262-263.
;Freedom of Association
17
2ïS
FREEDOM OF ASSOCIATION
for federations in case of alteration in the associations of which they
are made up.
It does not follow from the Act that an obligation is in general
imposed on associations to become registered. This is only expressly
provided for industrial associations for the purpose of material profit
(section i, clause i, A.R.).
If the association is registered (and this seems to be urged by the
law, since it grants rights only to registered associations) it incurs
the same obligations as an economic association. '
The registration of an association is governed by a series of formalities. The founders or other authorised persons must submit an
application in duly attested form accompanied by copies of the rules.
The decision as to registration now rests with the Minister of the
Interior (section 2, A.R.) ; under the Act of 1919 it was left to a
justice of the peace. The decision of the Minister must be given
within one month, otherwise the association may consider itself registered (section 8, A.R).
An application for registration can only be refused if the rules
fail to comply with the laws in force (section 10, A.R.), and an
unfavourable decision must state clearly what law is contravened by
the rules and in what the contravention consists (section 11, A.R.).
An appeal may be made to the High Court, and must be forwarded
to the Minister of the Interior for further action (section 13, A.R.).
The Minister is obliged to act on the appeal within one week. The
High Court hears the case in public and must decide within one month,
otherwise the association may regard itself as registered (sections 14,
16, 18, par. 3, clause 2, A.R.).
The entry in the register includes the name and headquarters of
the association, particulars respecting branches, and the decisions
of the competent courts (section 22, A.R.) *.
No further regulations are imposed by the Act on the activities
of the association. No special supervision of associations is provided
for by law. In practice, however, the Government sees that the activity of trade unions is not politically dangerous or directed towards
the overthrow of the existing political and social order 2 , also that
non-political associations do not pursue political objects.
1
Similar procedure is required in the case of amendments and additions to the rules.
2
In the memorial mentioned above a case is presented in which the
playing of the " International " by a workers' orchestra was forbidden
as a revolutionary act.
BALTIC STATES
259
Respecting t h e organisation of associations, t h e A c t makes only
the provision, very important for trade unions, t h a t associations and
federations m a y affiliate and negotiate with other federations. T h e y
m a y negotiate with associations and federations in foreign countries.
Affiliation with them, however, m a y only be carried out with t h e
approval of the Minister of the Interior if it would make them subject to decisions of foreign organisations (section 7, A . A . ) 1 .
T h e relations between the association a n d its members are not
regulated by t h e Act, but left to the rules of t h e association. T h e
rules of workers' associations concerning membership frequently
require security that the member is not subject to influence on t h e
p a r t , of employers. Higher employees are t h u s excluded and in
agricultural workers' unions relations of the employer are not
admitted. Unions of commercial employees require that two members of the association recommend new members and must vouch
for the fact that they are genuine employees.
T h e legal validity and enforcement of the contract of membership
is not limited and the association may impose unlimited penalities
in maintaining discipline. According to the rules of the Estonian
Manufacturers' Alliance, the Alliance has the right to impose fines
on its members and, to safeguard the execution of obligations undertaken by them, may require the deposit of securities or sums of money.
T h e only punishment customarily provided in the rules of work-.
ers' associations is expulsion from the union.
Dissolution
Voluntary dissolution is carried out according to the rules. If
this is impossible, a liquidation committee is appointed by the Minister
of the Interior to carry out the dissolution of the union and liquidation
of its property (sections 13, 14, et seq., A . A . ) .
T h e disposal of the property of the association is primarily determined by t h e rules. If they contain n o provision or it cannot be
carried out, t h e Government takes it in hand a n d must dispose of the
property according to the object of the association.
1
A railwaytnen's organisation which had affiliated with the International Transport Workers' Federation was, according to the above
mentioned memorial, refused registration on the ground that affiliation
•with a foreign organisation could not be permitted, since the strike might
be used as a weapon of war.
26o
FREEDOM OF ASSOCIATION
Compulsory dissolution of an association is primarily regulated
by the Act of 26 March 1926.
A registered association may be deleted from the register (section
12, A.A.). The Act gives two grounds for deletion : (1) if its activities aim at material profits or (2) if its activities are directed towards political objects, though the rules make no provision therefor,
i.e. if it no longer follows the principles under which registration
took place.
Deletion follows procedure in the civil courts on the application
of the Minister of the Interior or of individual members. It results
in the loss of the legal status of a registered association and the rights
associated therewith but not in the dissolution of the association
(section 12, A.A.).
The Act of 1919 provided that an association could only be dissolved if its activity was proved to be directed towards objects forbidden by the Penal Code ; section 11 of A.A. now states that
associations and federations the object or activity of which contravenes the criminal laws or threatens the public safety and peace may
be dissolved.
Associations which require approval of their founding may be dissolved if they are founded without such approval.
Under the former law dissolution could only be ordered by the
courts. The Minister of the Interior may now issue the order. An
appeal to the court of appeal against his order is permitted. Any
member of the dissolved association may be the appellant.
The new regulation is without doubt more unfavourably worded
than the former provisions, but this means nothing more than a
legalisation of past administrative practice.
The law is supplemented by the Act of 12 February 1925 for
the protection of the State, which prohibits any association the object
of which is the violent overthrow of the Constitution or of the
independence of the Republic of Estonia. Contravention of this law
involves dissolution. These provisions may be invoked against a trade
union which undertakes to translate into violent action its programme
of class war.
The procedure for dissolution is the same as that provided by
A.A. The property of the association is disposed of by a liquidation
committee appointed by the Minister of the Interior (section 15, A.A.).
But the property of suspended trade unions is alleged in many cases
BALTIC STATES
26I
to be summarily confiscated and put under seal by the administrative
authorities x.
POSSIBILITIES OF ACTION
Under the Act, only registered associations have legal personality.
They alone enjoy the rights of bodies corporate, i.e. the right to
acquire and dispose of property, conclude contracts, undertake obligations, sue and be sued (section 8, A.A.). They alone have the
right to found undertakings and institutions in conformity with their
objects (section 9, A.A.).
Although the Act, as mentioned above, imposes no express obligation for registration, and distinguishes between registered associations
and associations in general, the will of the legislators seems to be to
grant recognition only to registered associations. An unregistered
association has no legal existence; only registered associations are
able to carry out acts recognised by law.
The internal arrangements of the union for the benefit of its
members depend on the rules of the association. Several trade unions
have introduced benefit funds, e.g. unemployment, sickness, and
death benefits. There are also frequently provisions for the formation
of societies, information bureaux, employment agencies, and assistance
in building small dtwellings. Much of this, however, is still merely
a part of the programme.
Trade associations play practically no part in the Government.
The Act respecting employment exchanges, however, provides for
representation of employers' and workers' associations, to form half
of the membership of the council administering the exchanges.
While the Russian Act of 1917 on workers' councils, which is
still in force, does not provide for representation of trade unions 2,
the Decree of 22 January 1919 provides for representation of trade
unions on the National Economic Council, which corresponds to the
German Federal Economic Council. Neither law, however, has as
yet had any practical effect.
In Estonia also exists the practice of putting before the federations
of trade unions social and political draft legislation, in order to ascer1
According to the memorial mentioned above.
It should be remarked, however, that the rules of the Printers'
Federation impose on the members an obligation to make every effort to
have members of the Federation elected to the workers' councils.
2
2Ó2
FREEDOM OF ASSOCIATION
tain their views, or of inviting their representatives to take part in
committee meetings at which laws or other measures for the protection
of labour are discussed.
Fixed legal procedure has.hardly yet been determined for the
bargaining of employers or their federations with trade unions. For
the year 1924 only two wages agreements were published ; these
were made by the printers' unions in Tallinn and Tartu. Workers'
representation in industry is practically non-existent. Arbitration
and conciliation are under the circumstances still undeveloped,
although provisions for them are to be found in the rules or organisations.
The legal situation in case of an industrial dispute is peculiar.
On the one hand, Article 18 of the Constitution expressly states that
the right to' strike is guaranteed in Estonia. It adds that, together
with the rights of association and assembly (" these rights " ) , it can
be limited by legislation only in the interests of public safety. The
Constitution thus contains provisions which are hardly to be found
even in those countries which are industrially most highly developed
and socially and politically most advanced. On the other hand, the
regulations of the old Russian Penal Code have been taken over, limiting the right to strike in various respects *. Strikers who damage or
destroy the property of a factory or its employees are threatened with
punishment (section 1358, par. 1, Penal Code). The same applies
to strikers who compel other workers to stop work by physical force
or threats (section 1358, par. 2).
In addition to these general limitations, there is a special one for
so-called industries of public importance, and this concept is interpreted in the widest sense. It includes State undertakings, transportation, public and private railways, the mercantile marine, and especially all industries the cessation of which would threaten the safety
of the State or involve the possibility of public danger. Agriculture
is included in this class. The mere taking part in a strike in one of
these industries is not in fact prohibited, but intentional damage to
the property of such an undertaking or its employees is punishable.
It is also punishable to influence the workers in these industries to
stop work or to postpone the resumption of work. Finally, it is
1
The memorial already mentioned also states that the extraordinary
powers made available by the proclamation of martial law have been
invoked against workers on strike.
BALTIC STATES
,
2
&ì
punishable to compel other workers in industries of public importance
by force or by a boycott to t a k e part (section 1359, pars. 3 and 7,
of the Penal Code).
Another point which is most important for the unions is t h a t it
is punishable with imprisonment t o belong to associations if their
activity involves the aforesaid acts (section 1359, par. 8 ) .
Section 1359 threatens with imprisonment anyone w h o with
intent to inflict damage on a rival agricultural establishment incites
agricultural workers by common consent to stop work or not to
resume work.
Civil servants are absolutely prohibited from striking
(section
I35Q)•
Finally, a penalty of imprisonment is imposed on anyone w h o
influences the workers in industries of public importance or Governm e n t employees by publications in the press t o stop work (section
1034, par. 3, Penal Code).
T h e direct effect of these numerous provisions appears, however,
to be relatively small, since convictions on these grounds do not appear
to take place. T h e legal situation is, however, highly uncertain not
only for strikers, b u t also for the unions themselves, since m e r e
membership in associations, as has been shown above, may be punished
u n d e r certain circumstances, and an association which in its rules
provides for the illegal beginning or support of a strike in i n d u s t r i e s
of public importance must not be registered (section 10, A . R . ) \
1
The memorial which has several times been mentioned contains
information of cases in which registration was refused to railwaymen's
unions on this ground.
LATVIA
§ 1. — Survey of the Existing Organisations
A number of employers' organisations have been in existence
for some time. Their primary interests are economic, and they are
only secondarily occupied with the relations of employers and workers.
The following might be mentioned :
The Riga Manufacturers' Alliance, which before the war included
130 undertakings with about 13,000 workers ; its present membership
is 190. Its members are principally engaged in large scale industry
and most of them are of Baltic-German origin.
The Libau Manufacturers' Alliance is a similar organisation.
The Association of Latvian Industrial Employers and Handicraftsmen represents medium and small scale industry ; its members
employ from 8-10 workers each and are principally Lettish; its
membership is about 600.
Finally, the old Guild of St. John should be mentioned ; it is a
union of craftsmen founded in the fourteenth century, and now includes about 800 master craftsmen and a large number of journeymen
and apprentices.
Many employers are not organised at all.
The movement is weak on the workers' side also. It is difficult
to compile reliable information, since the membership fluctuates and
there is no basis for precise data. Conditions vary in different industries. In the printing trade, for example, almost all the workers are
organised, while in other branches of industry, e.g. the baking trade,
hardly 10 per cent, are organised. The Central Bureau of Latvian
Trade Unions in Riga included, on 1 January 1926, 16 federations
with 16,375 members, Another 15 federations with a Communist
policy are united in the Central Bureau of Riga Trade Unions with
5,249 members. The Courland Central Bureau, which has a similar
BALTIC STATES
265
policy, includes 6 unions with 683 members. Finally, there are 8
independent unions, the strongest of which is that of agricultural
workers with 9,000 members 1.
§ 2. — Existing Legislation
T H E LEGAL FOUNDATION
The fundamental law governing associations is the Act of 18
July 1923 respecting associations, federations, and political organisations, which is supplemented by the Act of the same date respecting the right of assembly 2.. It thus appears that there is no special
Act regulating trade unions but that they come under the general law
on associations. A reading of the Act shows that a distinction is made
between associations of a general nature and political organisations;
associations of the latter type are more strictly regulated. The Act
does not say when an association is to be regarded as a political organisation ; in practice no doubt appears so far to have been expressed
that trade unions are not to be considered political organisations.
Section 1 states that all inhabitants of Latvia have the right to
organise themselves freely in associations, political organisations, and
religious communities the objects and activities of which are not
contrary to the laws of the Latvian State. There are, however, certain
limitations of this fundamental right. By note 3 to section 1 the
authorisation of the Minister of the Interior is required for associations, federations, and political organisations founded by aliens. This
limits the freedom of association of foreigners, but they are free to
become members of existing unions founded by Latvians. Persons
under 18 years of age and those whose rights have been restricted by
a judicial verdict may not belong to associations ; but it is expressly
provided that persons under 18 years of age may belong to trade
unions but may not vote or be eligible for office. Pupils of training
schools, institutes, and other intermediate schools may only become
1
Data received from the federations.
Both Acts are published in the Legislative Series, 1923, Lat. 1
(published by the INTERNATIONAL LABOUR OFFICE). The Act respecting
associations was modified by a supplementary Act of 30 September 1926.
The Act respecting associations will be referred to as Act I and the Act
respecting the right of assembly as Act II. The International Draft
Convention concerning the rights of association and combination of
agricultural workers 'was ratified with effect from 9 Sept. 1924.
2
266
FREEDOM OF ASSOCIATION
members in conformity with instructions authorised by the Minister
of Education \ W o m e n are expressly allowed to belong to unions.
T h e fundamental right laid down in section i , Act I, is supplemented by section i , Act I I , which states that all citizens have the
right to convene meetings both i n closed rooms and in the open air a n d
to assemble peacefully a n d unarmed. I t should be noted that meetings
held b y aliens require permission from the local chief of police (note
to section i , Act I I ) .
Finally, associations and political organisations have the right
to unite to form federations and to amalgamate with other organisations of a similar character (section 3, Act I ) .
T H E L E G A L S T A T U S OF T R A D E UNIONS
Section 2, Act I, defines an association as an organisation of two
or more persons for t h e attainment of certain objects by common
action. Concerning these objects n o t h i n g is said except t h a t they are
not to be contrary to the laws of the Latvian State. I t has not been
possible to ascertain whether trade unions which in their rules provide
for strikes and the formation of strike funds would be adversely
affected, although, as will appear later, the old Russian criminal law
narrowly limiting the right to strike is still in force in Latvia 2 .
A federation is correspondingly defined as a joint body created in
order to co-ordinate t h e action of two or more associations (section 2,
Act 1).
Regulations
for Founding
and
Activity
T h e only formalities prescribed are t h a t t h e local police must
within two weeks of t h e founding b e informed of the headquarters
and also of the names and addresses of t h e members of t h e committee.
T h i s applies only to general associations a n d federations. Political
organisations must, under section 27, A c t I, be registered before their
activities begin. T h e y t h u s acquire t h e rights of bodies corporate
(section 7). Other associations m u s t also be registered if they are to
1
The age limit for membership of political organisations is 21 years.
Persons at school or serving in the army are forbidden to become members.
2
The object of trade unions is regularly stated in the rules as the
protection of the economic, legal, and cultural interests of the members,
etc.
BALTIC STATES
.
?ö7
acquire legal personality (section 7), but it is not expressly stated
that their activity, like that of political associations, must not begin
until they are registered. In practice, however,, registration seems to
be regarded in their case also as an essential preliminary to activity.
The regulations for registration of associations in general and of
political organisations are not the same.
The preliminary to registration (of general associations) is the
application of the association through its founders. It must be attested
by a public notary and accompanied by the rules of the association in
triplicate (section 9, Act I ) . The rules must contain the following
particulars : name and object of the association or federation ; composition, method! of election, powers, and headquarters of the committee; similar data of other administrative bodies of the organisation;
regulations concerning the admission and withdrawal of members ;
funds of the association or federation; method of dissolution.
Registration depends on the decision of the district court, which
must decide within a month from the date of reception of the application whether registration shall be approved or not (section 13). If
the court's decision is not given within this period the association
may be registered on the petition of the founders without special
authorisation. The public prosecutor may lodge a protest with inhibiting effect against the decision of the court by which registration is
• approved or against the petition of the founders in the case last
mentioned (sections 14, 15).
The decision as to registration takes place at a sitting of the court,
which the public prosecutor is invited to attend ; registration is then
officially published andl a copy of the rules with notification of registration is forwarded to the founders (sections 16, 17).
If registration is refused, the decision of the court shall state
clearly the legislative provisions with which the rules fail to conform.
Appeals to the Supreme Court are allowed and must be decided
within one month, failing which the association is registered. The
same applies in case of protest by the public prosecutor (sections 20,
21). The law also expressly provides for the possibility of a complaint
to the district court against the keeper of the register (section 24).
Similar procedure is provided for alteration of the rules; the
founding of branch associations must be reported for registration
through the central association. The application of a federation
must be accompanied by a list of the associations or federations uniting
to form the federation, together with their rules and resolutions
268
FREEDOM OF ASSOCIATION
concerning their entry into the federation. The list of federated
associations must also be entered in the register at the time of
registration (section 12).
The decision as to the registration of political organisations rests
with the Minister of the Interior, to whom the rules and programme
are forwarded. If no adverse decision has been given within one
month, the organisation is deemed to be registered. An adverse decision must state the legal provisions with which the rules fail to conform, or in what respect the requirements of the law have not been
complied with. An appeal may be lodged against an adverse decision
(sections 26, 27).
The law contains no positive regulation of the internal organisation of the association, which is determined by its rules. The law
merely states negatively that persons whose permanent domicile is
abroad shall not be members of the committees of organisations (note
2 to section 1), and that only adult persons shall be eligible for election (note to section 5).
The free right of assembly recognised in section i, Act II, is an
essential condition of any effective activity on the part of an association.
This principle is subjected to certain detailed limitations by Act II.
A distinction is made in section 2 between private and public meetings.
Private meetings are defined as those to which only persons belonging to a category specified in advance are admitted, e.g. meetings of
members of registered organisations, sessions of administrative bodies.
All other meetings are deemed to be public (section 2, Act I I ) . Private meetings require no previous notice or authorisation (section 3).
In the case of public meetings notice must be given (sections 6 et
seq)., otherwise they are forbidden or closed by the police (sections
14, 15). Preference is thus clearly accorded to registered associations
as against those which are not registered.
Congresses and conferences provided for in the rules as standing
organisations may be convoked and held without special authorisation.
Notice must be given, however, within a fixed period to the higher
administrative authorities. Special congresses and conferences must
be authorised by the Minister of the Interior and applications may be
refused if a contravention of the Penal Code or a disturbance of the
public safety is threatened (sections 16). An appeal may be lodiged
against an adverse decision.
BALTIC STATES
20Ç
Supervision and Dissolution
In addition to these regulations the Act respecting associations
contains special provisions under which the authorities supervise
associations and may directly interfere in their activity.
Illegally elected officials of associations may be deposed and
new elections ordered.
Resolutions which are illegal or contrary to the rules of the
association may be rescinded and the administrative authorities may order a new meeting to be convened to discuss them.
Illegal actions or contraventions of the rules may be rectified.
Rights provided in the rules may be withdrawn if exercised
unlawfully (section 6, Act I ) .
These prerogatives, which are of the greatest importance for the
associations, are in the hands of the district court, which takes action
at the request of the administrative authorities or in case of an appeal
from the members. The administrative authorities may not interfere
without a decision of the court.
It is clear from the foregoing that the Act, having given such
extensive powers of supervision to the authorities, cannot withhold
the ultimate weapon needed by them^ for the enforcement of their
decisions, i.e. the right of dissolution. While the regulation of voluntary dissolution is left to the rules of the association and becomes one
of the duties of a registered association (section i ) , the Act
respecting associations, in section 6, par. 2, expressly provides that
associations or political organisations may be dissolved if they contravene the laws or the provisions of the rules. Jurisdiction in the matter
of dissolution rests with the courts, which take action at the request
of the public prosecutor or the Minister of the Interior, and express
their decision in an Order. Pending the issue of this decision, the
activity of the association may be temporarily suspended. The
details of procedure are regulated by the Act concerning administrative courts (section 25).
In the supplementary Act of 30 September 1926, it is further
provided that the court, in dissolving an association, may prohibit
those members whose unlawful acts have been proved from belonging
to other similar associations for a period of not more than three years.
No cases are known of dissolution of trade unions.
270
FREEDOM OF ASSOCIATION
POSSIBILITIES OF ACTION
I t is unnecessary to point out that a registered association, which
possesses legal personality under section 7, A c t I, has the same rights
in civil law as a physical person, and can t h u s possess, acquire, and
dispose of property, sue a n d be sued, etc. T h e union is responsible
for its legal representatives ; t h e members of t h e u n i o n are not responsible. T h e activity of trade unions is, however, relatively small
a n d limited to their primitive objects, i.e. on t h e part of workers'
unions t h e struggle against the employers for better conditions of
•work, and on the part of employers and their organisations, qua employers' organisations, resistance to these efforts x . Representatives
of t h e organisations a r e , however, consulted as experts by parliament a r y committees or Government d e p a r t m e n t s ; b u t this happens only
occasionally and is not based on any legal regulation.
Collective agreements are, in the existing circumstances, practically very scarce. T h e pioneers in this, as in other countries, are the
printers, who in their wages agreement have even come to an understanding with t h e employers to the effect t h a t non-union workers are
not to be employed.
F o r t h e regulation of conciliation a n d arbitration Latvia has
adopted t h e provisions of t h e Russian revolutionary legislation (Act
of 25 September 1917). Apart from one unsuccessful attempt, however, the provisions appear hardly to have been p u t in practice. In
the spring of 1920, during a strike of longshoremen in Riga, t h e trade
unions applied to t h e Government for t h e establishment of a court of
arbitration.
T h e employers' organisations agreed and after long
discussions a court of arbitration was established in Riga. But the
court did not succeed in p u t t i n g an end to t h e longshoremen's strike,
which was t h e occasion of its establishment. T h e reasons for this are to
be sought partly in t h e legal provisions, which m a d e t h e procedure
dependent upon the agreement of all parties a n d gave no binding
force to t h e decisions, and especially in t h e fact t h a t t h e majority
of t h e workers and employers concerned were not organised, so that
a n y decision must have remained without effect.
U n d e r these circumstances arbitration is left to private arrangem e n t or practised b y industrial inspectors. I t is obvious, however,
1
The rules of trade unions provide numerous measures of relief for
their members.
271
BALTIC STATES
that workers' organisations hardly ever, and only when absolutely
necessary, avail themselves of this last resource.
T h e ultimate weapon of both workers and employers is t h u s the
industrial war, and strikes and lockouts have in practice frequently
occurred. According to the report of the Minister of Social Welfare,
the statistics of strikes are as follows 1 :
Year
Number
Number of strikers
of
establishments
1921
S,539
91
1922
3,554
41
1923
13,583
199
1924
9,599
89
1925
3,224
53
T h e legal situation in the case of strikes is not very clear. W h i l e
the temporary Constitution adopted by the National Assembly in
1920 guaranteed t h e right to strike, along with other fundamental
rights, to t h e citizens of Latvia, the existing Constitution contains
no such provision. T h a t does not mean that no right to strike exists,
but its scope is determined by the limits set by other legislation, particularly by t h e provisions of the Penal Code (especially sections 367
et s e q . ) , which were adopted as part of the old Russian Code of 1903.
By this legislation workers on strike in factories or other workplaces,
and in any establishments where the suspension of work is detrimental
to the interests of the population, are threatened with imprisonment
if they stop work b y common consent before t h e termination of their
contract or in contravention of other provisions, in order to procure an
1
The number of strikes handled by the factory inspection
thorities in 1924 according to their own figures is as follows :
(a)
(b)
(c)
Completely settled
Partially settled
Not settled
Total
Number of
establishments
Number of
strikers
29
20
41
4,753
2,466
2,500
90
9,"i9
au-
FREEDOM OF ASSOCIATION
2"]2
increase of wages. Strike breakers are protected, leaders are severely
punished, etc. Although the direct practical effect of these provisions is slight and sentences are seldom imposed \ the legal situation
is uncertain. Wide powers are thus beyond doubt placed in the hands
of officials, especially judges, who are able by a narrow or broad
interpretation of the existing regulations, to determine the destiny
of trade unions for good or ill. It should be mentioned, however,'
that the draft of a new criminal law is in preparation, under which
striking or suspension of work is to be punishable only when the
safety of the State or the general welfare is threatened.
1
Section 52 of the Factory Ordinance, under which a worker who
leaves his work prematurely is liable to arrest, is likewise not enforced.
LITHUANIA
§ 1. — Survey of the Present Situation
Political independence immediately resulted in the beginning of
a trade union movement in Lithuania. In 1919 and 1920 organisations
of metal workers, printers, mill workers, etc., were formed in Kaunas
(Kovno) and Chavli. In the rural districts agricultural associations
were formed ; these were by far the strongest of all. The movement
grew to such an extent that the Trade Union Congress, on 20 June
1920, was attended by representatives of about 38,000 workers.
In 1919 a central bureau of trade unions was founded, but was
soon dissolved by the Government; in 1920 a new bureau was formed.
The climax of trade union development came in 1920 and was followed by a decline. The struggle against Communism in Lithuania
especially affected the trade unions, which were interested in political
as well as economic questions. In August 1920 numerous leaders
were arrested and many organisations were forced to put a stop to
their activity. In 1921 the central bureau was again closed and its
authorisation revoked. The organisations shrank to a minimum during
the following years. The movement did not begin to revive until
1923. Agricultural workers were the first to form a new organisation,
and in 1924 and 1925 other associations were established. The authorities, however, make registration very difficult and forbid it in many
cases. The unions were not allowed to form a new central bureau.
Their activity is also narrowly limited and they are constantly threatened with dissolution. In the first three quarters of 1925 five unions
were dissolved. These difficulties, however, at present affect only
unions with a Socialistic policy, which, according to their own figures,
at the end of 1925 contained 13 associations and over 11,000 members.
There is also a Christian workers' movement extending throughout
the country with its own central headquarters. Its character cannot
Freedom of Association
18
274
FREEDOM OF ASSOCIATION
be precisely ascertained, but it includes representatives of small independent farmers, as well as agricultural workers. It appears therefore
that both in origin and in activity it is rather a political than an
industrial organisation.
On the employers' side there is a manufacturers' alliance founded
by employers in Kaunas.
In 1926 the tide seemed to have turned after the parliamentary
elections brought a new Government into power. A new central
bureau of trade unions with a Socialistic policy was founded, and
new trade unions everywhere appeared. However, the political situation again changed at the end of 1926 and now seems to be less
favourable for trade unionism.
§ 2. — Existing Legislation
Under Article 17 of the Constitution of 1922, the freedom of association of citizens of Lithuania is recognised, with the provision that
the object and method of the association's activity shall not be contrary to law. The more detailed regulation of the right of association
is to be found in the Act of 10 October 1919 on associations. There
is no special legislation for trade unions.
The freedom to form associations granted by the Constitution
undergoes considerable limitation by the Act concerning associations.
FOUNDING AND REGISTRATION
The fundamental. principle is stated in section 2 of the Act : If
more than five persons found an association they must register its
rules with the authorities. Membership in a non-registered association
is forbidden by section 28 ; the association is therefore illegal.
Economic unions and associations are distinguished by section 1
from all other federations, parties, and societies. Associations with
an object contrary to the Penal Code of the State are forbidden (section 29). A forbidden association cannot be registered. When and
under what circumstances an association must be registered the law
does not say. It is difficult to determine how far the provision of
the Constitution guaranteeing freedom of association applies. In any
case, the decision as to registration is to a great extent left to the
administrative authorities.
The formal conditions for an association thus provided for, which
must be founded by at least five persons, are as follows :
BALTIC STATES
275
The rules, which must be drafted in the Lituaniar. language ',
must contain certain minimum regulations and must give the name,
object, and headquarters of the union, conditions for admission and
withdrawal of members and method of election of the committee.
If the association is to acquire land or found branches,, the rules
must also contain the amount of the contribution, information concerning the general meeting, the method of keeping accounts and the
procedure for altering the rules and for the founding of branches
(sections 3 and 4).
An application in the Lithuanian language 2 with three copies of
the rules attested by the founders must be forwarded to the administrative authorities (section 5).
The decision on the application is not made by the administrative
authorities themselves but by a specially appointed committee. This
committee consists of the prefect as president, the justice of the peace
and a member of the district council. The rights and duties of a
prefect are exercised by mayors (section 27). A representative of the
local authorities must be present. The associations have legally no
control of the membership of the committee.
The committee decides all questions connected with the administration of the law concerning associations (section 6). The rules
must be approved within one month. If they do not comply with the
requirements of the law, rectification is ordered. The decision must
be given within one month after the final draft of the rules has been
presented (section 7). The founders can attend the meeting at which
the application of their association is discussed and give explanations
(section 21).
If registration is granted, the prefect must enter the rules in the
register of associations. The entry also shows the name and object of
the association, date of founding and names and addresses of members
of the committee (section 11).
In case registration is refused, the grounds for the decision must
be stated (section 8).
An appeal against the decision of the committee may be lodged
with the district'court (section 17). The president of the committee
can also appeal to the court against a decision of the committee which
1
The Minister of the Interior can give permission for their being
drawn up in another language, in which case a translation is made free
of charge (note to section 11 of the Act).
- See the previous note.
276
FREEDOM OF ASSOCIATION
is not unanimous (section 20). A decision of the court is given
according to judicial procedure and is final (section 18, 19).
During the hearing of the case the founders have the same right
of participation as at meetings of the committee.
SUPERVISION AND DISSOLUTION
The activity of a registered association is subject to the supervision of the Minister of the Interior (section 13).
The wide scope of this provision leaves far-reaching powers of
interpretation to the discretion of the authorities.
The association is dissolved in case of non-observance or contravention of the rules (section 14).
It is provided that the Minister of the Interior as a temporary
measure may suspend the activity of an association if it is contrary
to the laws of the country. In such a case an application for dissolution of the association must be made immediately (section 14, clause
2).
The decision as to dissolution is left to the jurisdiction of the
committee described above. The procedure is the same as in registration and an appeal to the district court is permitted.
The property of the dissolved associations is disposed of according
to the provisions of the rules or, failing sucri, according to the object
of the association.
All other questions not regulated by the Act, such as the internal
organisation, voluntary dissolution of the association, etc., are left
to the rules.
POSSIBILITIES OF ACTION
Although the activities of trade unions were practically suspended
until 1926, the change of Government of that year seems to have
brought certain alterations in the situation.
The Insurance Act of 27 May 1926 provides for representation of
insurers and insured in the insurance organisation and the Act of 18
May 1926 on superior insurance authorities especially states in the
note to section 2 that representatives of insurers and insured shall
be appointed to the highest insurance board from the organisations
of employers and employed.
In the course of numerous changes in wages, which have now
BALTIC STATES
2JJ
come to an end, several wage agreements were concluded '. F o r the
peaceful settlement of industrial difficulties t h e F a c t o r y Inspection
Act (sections 6, 9, and 11) instructs factory inspectors to. endeavour
to bring about an agreement between the parties. If this is impossible
efforts are to be made to prevent rioting. T h e assistance of the
police may be requested in such cases. T h e Minister of the Interior
has given orders in a Circular that goods may be removed from an
establishment in which work is at a standstill on account of an industrial dispute only with permission of the factory inspector.
The
inspectors m u s t communicate to the strikers t h e fact that permission
has been granted and the strikers must not interfere with the transport 2 . T h e provisions of the Russian Penal Code concerning strikes
are also still in force here as in the other Baltic States 3 . I t is difficult
to determine how far either of tlie regulations affecting industria]
disputes is enforced ; it depends at all events on the political situation
of t h e m o m e n t .
T h e situation in the Memel Territory is different from that of
the rest of Lithuania. Memel was separated from Germany as from
15 F e b r u a r y 1920 a n d was joined to L i t h u a n i a b y t h e decision of the
Ambassadors' Conference in F e b r u a r y 1923. Subsequently international discussion resulted in the agreement of 8 M a y 1924 concerning
the Memel Territory. German law is there in force as it stood on
15 F e b r u a r y Ï920.
1
E.g. in the tobacco industry and in the brewing trade in Kaunas
(Lietowa, 1 Sept. 1926).
2
Lietowa, 11 Sept. 1926.
3
Section 367 of the Penal Code prohibits strikes altogether. According to a statement of the Prime Minister, Mr. Slezevicius, this provision
has remained in the Penal Code by an oversight and is not applied in
practice (Lithuanian Leim (Parliament), Second Meeting, 30th Session
of the Third Parliament)!
SUMMARY
A review of the legal situation of trade unions in the three Baltic
States shows that they come under the legislation for associations in
general. The formation of associations is in principle free for all
citizens. The authorities, however, can exercise a far-reaching control
of the foundation and activity of associations, whether the law enumerates in detail the circumstances in which they may interfere or
leaves the decision to the discretion of the authorities. The ultimate
weapon, dissolution of the association, is not withheld from the authorities in any of the States. Finally, the laws taken over from the
old Russian Empire limiting freedom to strike under strong penalties
give rise to uncertainty even though they may not very frequently
be directly applied.
It has been suggested in the introduction that the development of
trade unions and their activities are conditioned by the existing economic and social and not least by the political situation of the country.
This also determines in what spirit the existing legislation is interpreted and whether trade unionism is to be impeded or furthered.
While hitherto the movement has been greatly hindered, at least in
Estonia and Lithuania, this seems to be less so at present. No final
judgment can be expressed ; the movement is still in a state of flux
and trade union legislation is only beginning to exist.
BIBLIOGRAPHY
La Lettonie, état actuel et possibilités d'avenir d'une des
baltiques. Riga, State Printing Office, 1922.
La République de Lettonie, documents,
Bureau letton d'informations, 1922.
traités
républiques
et lois, I.
Paris/,
Mémoire sur la Situation économique et financière de la République
de Lettonie.
Presented by the Latvian Delegation to the Rome Congress
of the International Chamber of Commerce. Rome, 1923.
CROHN-WOLFGANG.
Berlin-Leipzig, 1923.
Lettlands
WALTERS.
Frage. 1923.
seine Entwicklung
Lettland,
Bedeutung
für
die östliche
Frage
zum Staat und die baltische
Reports on the Economic and Industrial Conditions (London, Department of Overseas Trade) : Estonia, ics¡. Latvia, IÇZJ, 1Q27.
Economie et Coopération de Lithuanie.
Etude statistique.
Lithuanian Republic, Ministry of Finance.
INTERNATIONAL LABOUR O F F I C E : (1) Legislative
mation collected by the Office.
Geneva.
Kaunas,
Series ; (2) Infor-
DENMARK
§ 1. — History and Present Position of the Trade Union Movement
ORIGINS AND DEVELOPMENT
In the Middle Ages, economic and social conditions in Denmark,
as in other European countries, were governed by the guilds, fraternities, and similar bodies. Towards the end of the Middle Ages the
guilds tried to limit the freedom of admission by imposing increasingly
difficult conditions ; even though the State endeavoured to fight these
efforts to establish a monopoly, the domination of the guilds lasted
for a considerable time into the new era.
Under the absolute monarchy, that is to say, from the seventeenth to. the beginning of the nineteenth century, there could not be
said to be a general freedom of association. A certain natural right
to form associations was no doubt allowed, but it was substantially
limited by various regulations.
Thus an Ordinance of 1681 prohibited masters and journeymen
from holding meetings or concluding agreements with a view to
fixing prices or wages, on the ground that everyone had the right
to dispose of his goods or his labour at whatever price he could
obtain. On the other hand, this Ordinance expressly recognised the
privileges of certain guilds.
In 1794, a great strike broke out among carpenters, showing
that the position of journeymen could not be very satisfactory. The
Government appointed a committee to examine the complaints of
the journeymen and to propose measures for removing abuses in the
guild system. The work of this committee led to the issue of the
Ordinance of 21 March 1800, which prohibited any form of joint
action on the part of journeymen, in particular that of boycotting, by
imposing penalties on those who " dared to discuss and enter into . . .
unlawful agreements among themselves not to work for a particular
(
282
FREEDOM OF ASSOCIATION
master " (section 2), or who refused to work with others who were
married or " were liable to military service" (sections 4 and 5).
Secondly, the Ordinance established penalties if journeymen intentionally left the workshop and work of their master, or if all the
journeymen in a guild decided to stop work, or if " their audacity
went so far that they tried to persuade journeymen in other guilds
to follow their example and take part in their insubordination "
(section 11). Heavy sentences of imprisonment were imposed on
journeymen who broke these regulations. The masters, on the other
hand, were fined only if, contrary to expectation, they agreed not
to employ a particular journeyman. Finally, the Ordinance granted
both parties full freedom in concluding the contract of employment.
The economic depression of the first thirty years of the nineteenth
century made a dead letter of the regulations in this Ordinance. The
authority of the guilds and masters remained unaffected.
The system of absolute monarchy meant that the State claimed
the right to supervise the associations it allowed to exist, and to
dissolve them by administrative authority if it considered them
injurious to the community. As early as 10 May 1780, an Order of
the Cabinet had been issued limiting the formation of societies and
associations, and even in the 'forties of the nineteenth century
several measures were taken against associations, without any right
of redress through the ordinary courts.
In 1849, there was a complete turnover in conditions in Denmark. The Constitution of 5 June 1849 recognised the right of
association and assembly (Articles 87 and 88), and removed all
restrictions on the exercice of a trade (Article 83). In pursuance of
Article 83, the Act of 29 December 1857 (Naeringsloven af 2g December 1857) was promulgated, which abolished the commercial guilds,
and although it left the craft guilds in existence yet made it necessary
for them to obtain express recognition from the Government. Any
member could now leave his guild, and the latter could be dissolved
by a majority decision of the members. The provisions of the Ordinances of 1681 and 1800 already mentioned thus lapsed.
Although the craft guilds continued as voluntary associations,
they had practically lost their importance, and industrial conditions
became altogether independent of the influence of the authorities or
the legislature. A wide Liberalism prevailed. This created the
necessary conditions for the development of industry, the formation
•of a working class, and the creation of the first workers' organisations.
DENMARK
283
Between i860 and 1870 the first trade unions were founded, and at
about the same time the Danish branch of the first workers'
International was formed. But whereas the trade unions were left
unmolested, the International was dissolved by a Copenhagen court
(2 February 1874), the Minister of Justice having already issued a
provisional Order of dissolution. It is noteworthy that in its defence,
the organisation emphasised the lawfulness of its aims, that is to say,
the fight for the protection, progress and emancipation of the workers,
while the judgment, on the contrary, maintained that the lawfulness
of an association depended not only on the wording of its rules, but
also on the possibility of its engaging in violent action. After the
dissolution of the International, its trade branches were amalgamated
with the trade unions.
During the following years the trade unions, as well as the associations of employers, were able to develop undisturbed by State
intervention. The struggle for freedom of association was a direct
issue between employers and workers, and it led in turn to continually stronger organisation and concentration of forces on both sides.
In 1896, the employers' associations combined to form the Federation
of Employers, which in 1899 became the " Danish Federation of
Employers in Industry and Handicrafts " * and covered all branches
of industry and handicrafts. On the side of the workers, the Danish
Confederation of Trade Unions was formed in 1898.
The conflict between the two great organisations led in 1899 to
an open dispute. A great lockout, affecting about 40,000 workers,
was declared, and lasted about four months. One of the chief demands
of the employers was that the workers' central organisation should
be responsible for the observance of the collective agreements concluded by its affiliated unions. This the workers regarded as an
attack oh their organisation and an attempt to break its power. This
great dispute ended with the conclusion of a general agreement, that
of 5 September 1899, generally known as the "September Agreement".
The provisions of this Agreement were of fundamental importance
to the further development of the right of association 111 Denmark,
and during the course of this study, they will be examined in detail 2 .
1
2
Now the Danish Employers' Federation.
The provisions of the Agreement are legally binding only on the
parties to it and not on third parties. In actual fact the influence of
the contracting parties is so great that the freedom of third parties is
of no significance.
284
FREEDOM OF ASSOCIATION
PRESENT POSITION OF THE T R A D E UNION MOVEMENT
The associations of employers are combined in the Danish
Employers' Federation, which on 1 July 1925 comprised 230 organisations employing 125,700 workers and 172 separate undertakings with
22,260 workers l.
As a rule, the individual employers in a given branch of industry
and a given area combine to form an employers' association, and
several employers' associations are united in provincial or national
federations.
On the side of the workers, the various national trade unions
(Fagforbund) are combined in the Danish Confederation of Trade
Unions (De samvirkende Fagforbund i Danmark).
In 1924, 51
national unions and one independent trade union were affiliated to the
Confederation, comprising in all 198,444 men and 38,579 women
unionists.
The employers' associations are politically neutral, but the Confederation of Trade Unions is Socialist, and it is one of its declared
aims to co-operate with the Social-Democratic Party in promoting
labour legislation by the State and the municipalities.
The Christian Workers' Union, a weak organisation keenly
opposed by the other trade unions as being " yellow ", has other
aims.
The unions of salaried employees may be divided into two groups,
one of which is linked with the Socialist workers' unions, while the
other is independent. One of the chief unions is that of commercial
and clerical employees with a membership of about 12,500. State
and municipal officials are also highly organised.
In Denmark, too, the great trade associations, in particular those
of the workers, are faced with the question whether they should
maintain the existing classification of the associations by crafts or
whether they should reorganise them by industries. One industrial
union is already in existence, that of the pottery industry. It covers all
the trades employed in this industry, from artists down to unskilled
labourers. The rules of the Danish Confederation of Trade Unions
expressly provide for the possibility of reorganisation t and the problem has been very much discussed. Thus, the Metalworkers' Congress held in 1926 particularlv instructed the committee of the union
1
Statistisk Awrbog, 1920.
DENMARK
285
to continue the work in this direction already started, with a view
to finding a form of organisation which might best serve the interests
of the movement.
§ 2. — The Conditions Governing the Legal Existence
of Trade Associations
LEGAL STATUS
Under the law as it now stands, the freedom to combine for trade
purposes is part of the general freedom of association, and the principle is recognised by the State.
The right of association is recognised in Article 85 of the
Constitution, according to which citizens have the right to form
associations for any lawful purpose without previous approval.
Further, Article 86 of the Constitution grants citizens the right to
assemble unarmed. The police are empowered to attend public
meetings ; open-air meetings may be prohibited if there is a risk of
disturbance of public order.
These fundamental provisions are supplemented by those of the
September Agreement, which implicitly contain a complete recognition of the right to combine for trade purposes, as was expressly
declared in an award of the Permanent Arbitration Court, in 1912.
In another award, of 1915, this same court stated that the conclusion
of the September Agreement was based on the assumption that
employers recognised the efforts of workers to organise.
The September Agreement further involved certain more specific
limitations on the workers' right of association. Article 4 expressly
recognises that employers have the right at any time to employ the
workers they consider they need. This provision was interpreted by
an award of the Permanent Arbitration Court of 1911 in the sense
that employers have the right also to employ unorganised workers,
and that the workers have recognised this right. The award, however, gave the workers the right to appeal, through their organisation,
to the competent arbitration court if the application of Article 4 were
to lead to abuse.
The view which at present prevails is that the provisions of the
September Agreement mean that a lockout by an employer covered
by the Agreement must be regarded as a breach of the Agreement,
and therefore unlawful, if it is declared because workers have joined
286
FREEDOM OF ASSOCIATION
a union which is party to t h e A g r e e m e n t . I t is further considered
unlawful if an individual contract of employment includes a clause
forbidding the worker to join an organisation. I n the case of a
worker who wishes to join an organisation w i t h which the employer
is accustomed to negotiate and conclude agreements, and which is
covered by t h e September Agreement, t h e employer must state his
reasons w h y the worker should remain outside the union, or else his
conduct is regarded as an attack on t h e workers' association. I n
brief, a n y action directed against the workers' unions and the efforts
of t h e workers to organise, is regarded as incompatible with t h e
September A g r e e m e n t 1 .
I t can therefore be said t h a t t h e right to combine for trade purposes is recognised in two ways : politically, t h r o u g h t h e National
Constitution, and socially t h r o u g h t h e September Agreement.
T H E CONSTITUTION OF T R A D E ASSOCIATIONS
Formation
and
Dissolution
T r a d e associations are n o t covered b y special legislation, b u t by
the general right of association, under which they enjoy complete
freedom a n d need satisfy n o particular conditions with respect to their
foundation. T h e structure of associations is therefore generally governed by their rules. T h e sovereign authority is usually the general
meeting. Current business is m a n a g e d by t h e executive committee
or t h e administrative committee. Under the general principles of civil
law, t h e general meeting cannot limit t h e personal rights of members
or alter the principal aims of t h e association. A n y breach of this
principle gives the members t h e right to appeal to t h e ordinary courts.
Similarly, the voluntary dissolution of a n association can take place
only in accordance with the rules.
T h e only legislative provision on t h e r i g h t of association is to be
found in Article 85 of the Constitution. According to this, the association m u s t have a lawful aim and cannot be dissolved b y administra tive authority. Only a provisional prohibition can be issued ) b u t in
this case legal proceedings against the association must immediately be
instituted for dissolution by the courts. T h e fact that the authorities
1
Ei.MOUlST :
Problem (1918).
Den
kollektive
Arbcidsoverenskomst
som
reteigt
287
DENMARK
have thus a general right of supervising associations seems to have
h a d no practical importance for the trade associations in Denmark, as
n o doubt has ever been thrown on the lawfulness of their aims. Nor
have there been any compulsory dissolutions of trade associations.
Legal
Personality
and its
Consequences
Every lawfully constituted association has legal personality, which
it acquires without particular State recognition or action on its part.
T r a d e associations therefore enjoy the same legal status as any other
legal person. ' T h e y m a y conclude contracts, acquire movable and
immovable property by purchase or by gift ; they are responsible to
the extent of their property towards both their members and third
parties for meeting obligations arising out of contracts, and they are
also responsible for tortious acts.
T h e question as to who represents a trade combination is determined by its rules. F o r current business it is usually the chairman or
his representative, for matters of more importance the administrative
committee or one of its sub-cómmittees. I n questions of principle or
matters entailing financial obligations on the members, a decision of
the general meeting is needeû.
T h e possession of legal personality means lastly t h a t trade associations may sue and be sued in court. T h e rules usually provide,
however, that disputes between the association and its members shall
be settled not before the ordinary courts, but by an arbitration court.
T h e courts have declared such clauses void if, in their opinion, they
deprive the members of the protection of the law. I t has often
happened that workers have instituted proceedings against unions
which refused to admit them to membership.
Only the persons who have committed an unlawful act are
responsible under criminal law, and not the association 1.
1
Statutory regulations on the right of association were established
for civil servants under the Civil Service Act of 27 June 1927. According
to this Act, civil servants may form trade unions to a limited extent, but
such unions must be recognised. A necessary condition for recognition
is that the association is open to all civil servants but to civil servants
only, and that when the organisation is represented, minority groups
must be taken into account. Only one organisation for each grade of
civil servants is recognised ; a very limited number of central organisations may be recognised.
The aim of the unions must be limited to negotiating with the
competent authorities concerning vocational and not technical questions
288
FREEDOM OF ASSOCIATION
§ 3. — T h e Activities of T r a d e Associations
INTERNAL A C T I V I T I E S AND P A R T I C I P A T I O N IN STATE; A C T I V I T I E S
T h e employers' associations were formed mainly, if not solely,
for purposes of defence against t h e efforts of t h e united workers, and
this has meant that they have n o institutions for t h e support of
members, apart from certain financial relief in the event of a strike
or lockout. T h e position is different for t h e workers' organisations.
T h e complete freedom they enjoyed for years and the non-interventionist, attitude of the law encouraged the trade unions to create a n d
promote many independent institutions for t h e benefit of their
members. T h u s they organise courses of training for the improvem e n t of t h e general a n d technical education of members ; they issue
publications and collect archives of all documents relating to the labour
movement in Denmark.
I n the field of material support, special reference should be made
to t h e co-operative movement, which h a s grown u p together with the
trade unions. T h e promotion of co-operation is o n e of t h e chief aims
w h i c h t h e unions affiliated to the Danish Confederation of T r a d e
U n i o n s are bound to pursue. F o r m e r l y t h e workers favoured producers' co-operative societies somewhat to t h e neglect of consumers'
societies. T h i s is no longer t h e case, and particularly in Copenhagen
the workers' consumers' societies have m a d e great progress. P r o ducers' societies are to be found in practically all branches of industry ;
there are a co-operative brewery, bakeries, a dairy, an engineering
workshop, an electrical fitters' business, a n d various building undertakings. Similarly, there are a co-operative bank and societies for
building cheap dwellings.
T h e insurance institutions created by t h e trade unions, such as
their sickness and funeral benefits and unemployment funds, play an
i m p o r t a n t part. Reference m a y also be m a d e to their employment
affecting civil servants as a whole or groups of civil servants, but not
the appointment or dismissal of civil servants. The organisations may
put forward proposals for amending the regulations concerning salaries,
hours of work, the personal and legal status of civil servants within the
civil service, and similar non-technical questions. The negotiations may
be conducted in writing or by word of mouth, and after oral negotiations
the organisations may demand that the matter shall be referred to the
Minister.
It is noteworthy that an official of any recognised organisation may
take part in the negotiations even if he is not himself a civil servant.
DENMARK
289
agencies. T h e y were the only institutions of t h e kind for the protection of workers until the subject was dealt w i t h b y legislation, and i t
•is. noteworthy that t h e law was based directly o n these trade union
institutions.
By the A c t of 22 December 1921, a s amended on 4 March 1924 1,
associations of workers in one or more specified trades w h o have combined for m u t u a l aid in the event of unemployment may be recognised
as unemployment funds. T h e financial administration of t h e unemployment fund must in this case be directly separated from the rest of
t h e financial administration of the organisation. T h e trade unions often
make it compulsory for their members to join the unemployment fund.
I n several trade unions, members who become unemployed are given
various allowances in addition to t h e ordinary benefit. T h i s applies,
for instance, t o t h e Commercial and Clerical Employees' Union.
I t is therefore clear that a private institution of the trade unions
m a y in certain cases become an instrument i n t h e administration of
a public social measure. E v e n where this is n o t t h e case, t h e trade
unions have t h e right to co-operate in State activities. N o t only dc
their employment agencies co-operate in fact w i t h t h e public employment exchanges, b u t in addition both employers' a n d workers' associations are represented in the management of t h e public exchanges 2 .
T h i s co-operation between trade associations and t h e State i n
social affairs,
particularly in questions of employment,
is
also to be found in higher administrative institutions.
There
are, for instance j representatives of t h e unions in t h e E m p l o y m e n t
Committee, a n advisory body which deals w i t h questions of employment exchanges a n d unemployment insurance, a n d in t h e Advisory
Labour Committee in t h e Ministry of t h e Interior, which examines
the means of combating unemployment. Other advisory bodies are thé
Labour Council, which deals with questions of labour inspection,
and the Social Welfare Council, which is responsible for social welfare
questions. I n both of these the trade unions a r e represented, as well
as the Government.
T h e W o r k e r s ' Insurance Council, on which t h e trade unions a r e
also represented, is n o t merely an advisory body, b u t has powers of
1
INTERNATIONAL LABOUR O F F I C E : Legislative
2
Series,
1924, Den. 1.
It should be noted that" in the event of a labour dispute a public
employment exchange may not direct workers to the undertakings
involved.
Freedom of Association
FREEDOM OF ASSOCIATION
200
decision in disputes concerning workmen's compensation for industrial
accidents.
COLLECTIVE AGREEMENTS
AND
THE SYSTEM OF CONCILIATION
AND ARBITRATION
The Danish trade associations have for many years made such
progress without the intervention of the legislature that they have
come to play an important part in the making and developing of labour
law as defined by the parties themselves. This is already clear from
the important effect of the Agreement of 5 September 1899 on the
right of association for trade purposes. It is assumed that any action
against a trade union or against an effort to organise is illegal, not
only with reference to the September Agreement, but whenever a
collective agreement has been concluded between the employers' and
workers' associations concerned 1.
So long as no special legislation had been passed, i.e. until 1910,
thè legal effects of a collective agreement for the associations concerned
were somewhat uncertain. On the basis of the general principles of
the law, a distinction was drawn between the provisions of a collective
agreement relating to wages, hours and other conditions of work ) and
the obligation to keep the peace assumed under the agreement. If a
particular employer or worker failed to observe the agreed conditions
of work, the association whose members were affected could not claim
damages for this breach of the agreement. The position was different
as regards breaches of the obligation to keep the peace. If, for
instance, a trade union organised a strike contrary to the provisions
of the agreement, the employer could successfully bring an action for
damages due to the stoppage of his undertaking before the ordinary
courts ; and, conversely, in the event of a lockout the trade union
could claim compensation for the benefit paid out, although in actual
practice this latter case was more infrequent. In the event of a breach
of a collective agreement the injured party was released from all
other obligations under the agreement. If in these circumstances
an employer paid lower wages than those agreed, the trade union
no doubt had the right to declare a strike against that employer, but
it could not claim the payment of the difference in wages. This
meant, however, that collective agreements lost much of their value.
1
ELMQUIST, op.
cit.
DENMARK
3ÇI
A fundamental change was introduced by the Act of 12 April 1910
on the P e r m a n e n t Arbitration Court 1, which is now in force as
amended on 4 April 1919. U n d e r this Act, if an association or its
members has been injured by the breach of a collective agreement
committed by an individual employer or an association of employers
or workers or a majority of the workers, the association m a y institute
proceedings before the Arbitration Court 2 . T h i s has very much
strengthened the status of collective agreements, and therefore that
of trade unions.
Questions which, ' in other countries, are often settled by
legislation are determined in D e n m a r k by collective agreements.
T h u s , in many agreements, particularly in the metal industry, it is
for instance provided that the workers in an undertaking may elect
an approved representative who represents their interests before t h e
employers, and provides for satisfactory co-operation in the undertaking. H i t h e r t o , however, the attempt to establish a general works
council system by collective agreement has failed, as also that to
introduce it by legislation.
As already explained, Article 4 of the September Agreement
recognises that employers have the right to employ such workers as
they may consider they need. I t is clear that the employers' associations attach importance to the observance of this principle and are
hardly inclined to enter into a collective agreement in which they
surrender this right. T h e Federation of Danish Co-operative Societies,
which does not belong to the Employers' Federation, has, however,
concluded an agreement with the trade unions, u n d e r t a k i n g to
employ only organised workers, an action which has been much
criticised a m o n g employers 3 .
I t is characteristic of the right of association in Denmark t h a t
side by side with the system of collective agreements, a system of
conciliation and arbitration in labour disputes has grown u p in the
1
Bulletin of the International Labour Office, Basle, Vol. IX, 1910,
pp. 395 et seq.
2
For the legal consequences of a breach of agreement, see p. 297.
3
There is a noteworthy contrast between the policies of employers
and workers with respect to collective agreements. • The former desire
centralisation of the agreements, whereas the separate unions, when
concluding agreements, try to maintain their freedom as against the
Confederation of Trade Unions, a freedom which has had to be recognised
in the rules of the Confederation.
2Ç2
FREEDOM OF ASSOCIATION
trade unions themselves. As early as the 'nineties of last century
the Confederation of Trade Unions- and the Employers' Federation
agreed to set up a joint committee for the settlement of disputes.
This Committee was to consist of three representatives of each party,
two of the three being selected from the organisations themselves.
It was the duty of the Committee to decide whether, in the event of
a dispute between trade combinations affiliated to the central organisations, there had been a breach of a collective agreement. This
Committee proved of little practical importance, however, and after
the great lockout which led to the September Agreement of 1899, it
was decided to set up a Permanent Arbitration Court (den permanente
Voldgiftsret), whose principal duty would be to watch over the
observance of the September Agreement. An important labour
dispute which broke out in the newspaper industry in 1908 led to
the appointment of a new joint committee, which was to examine
proposals for setting up arbitration courts and measures for preventing strikes and boycotts, in the light of the experience already
gained. The report made by this Committee, which contained a
draft Bill for an arbitration court and proposals concerning procedure
for the settlement of labour disputes, was used as a basis for the Act
of 12 April 1910 on the Permanent Arbitration Court.
Under this Act the Arbitration Court consists of six ordinary
members and sixteen substitute members, elected in equal numbers
by the Employers' Federation and the Confederation of Trade Unions.
The proceedings are the same as ordinary judicial proceedings, and
the organisations parties to the case must comply with the decisions
of the court just as if they were the final judgments of an ordinary
court.
As already explained, the cases which come before the Permanent
Arbitration Court are disputes arising out of the breach of collective
agreements. These are collective disputes. The term may also cover
a dispute between an employer and his workers, in which case he
may appear before the court in person, but the general rule is that
only the associations sue or are sued before the Arbitration Court.
The Act expressly states, in fact, that an action must be brought by
or against the organisation if an individual undertaking party to the
dispute belongs to an organisation, and the same provision applies
with respect to associations and any central organisation to which
they may belong. The Act itself defines in section 17 what is to be
considered an organisation within the meaning of the Act : either
DENMARK
293
a majority of employers who employ workers (including salaried
employees) in industry, handicrafts, trade, clerical work, agriculture, horticulture, construction, or transport a n d are bound by an
agreement, concluded with a majority of the workers, in return for
the observance of certain obligations by the workers to g r a n t them
certain conditions of work in their employment in the undertakings
in question ; or a majority of workers w h o , by such an agreement
concluded w i t h an employers' organisation or an individual undertaking, are secured, in return for the observance of certain obligations,
certain conditions of work if they are employed by t h e employers
concerned. T h e competence of the P e r m a n e n t Arbitration Court
may be extended by a Royal Ordinance to other industries t h a n those
enumerated \
T h e influence of this system on the right of organisations to
defend their interests in labour disputes will be discussed later in
connection with such disputes 2 .
W h i l e t h e P e r m a n e n t Arbitration Court settles the question
whether a collective agreement has been broken, disputes concerning
its interpretation are dealt with by t h e conciliation procedure
specified in the collective agreement.
T h e conciliation procedure which had been proposed by the
Joint Committee of 1908 for the settlement of labour disputes was
not introduced by law, but has been widely adopted in collective
agreements, a n d by now there is hardly a general agreement which
does not contain provision for such procedure. A s a rule the dispute
m u s t first be referred to a permanent conciliation committee, consisting of a n equal number of representatives of the parties to the agreement, there being one such committee for each branch of industry.
If t h e committee fails to conciliate the parties, the case is referred
back to the organisations for further negotiation. If this, too, fails,
t h e matter is usually to be submitted to an industrial arbitration
court for decision, should one of the parties so require.
These
arbitration courts consist of an equal n u m b e r of representatives
of the parties concerned, with a neutral chairman appointed by the
1
During the first ten years of its existence, 1910-1920, 363. cases
were brought before the Permanent Arbitration Court, of which 70 per cent.
were settled by an award and 20 per cent, by mutual agreement ; in
10 per cent, of the cases the suit was withdrawn. Of the 401 cases in the
period 1921-1924, 187 were settled by conciliation and 44 were withdrawn.
2
See pp. 297 et seq.
FREEDOM OF ASSOCIATION
294
parties themselves or, in t h e absence of their agreement, by a neutral
authority, usually t h e P e r m a n e n t Arbitration Court.
If t h e dispute relates to t h e determination of conditions of work,
that is to say, t h e conclusion of a collective agreement, t h e provisions of t h e A c t of 2i December 1921 on the settlement of labour
disputes apply \ T h e authorities for this purpose a r e conciliators
appointed by t h e Ministry of t h e Interior on t h e recommendation of
the P e r m a n e n t Arbitration Court. T h e organisations of employers
and workers are bound to supply t h e conciliators on request with
a copy of all collective agreements that have been concluded. If, in
t h e event of a possible labour dispute, t h e conciliators convene the
parties for negotiations, they must comply. If a dispute breaks out,
they must submit statements to t h e conciliators, a n d if these are
inadequate, t h e latter m a y demand the taking of evidence by the
P e r m a n e n t Arbitration Court. If a trade association takes a vote
on a conciliation proposal p u t forward by t h e conciliator, then t h e
wording of t h e proposal must be that prepared by t h e conciliator,
and t h e vote must be merely one for adoption or rejection 2 .
T h e trade associations are thus the principual factors in the
system of arbitration a n d conciliation, whether it is a case of statutory
proceedings before t h e P e r m a n e n t Arbitration Court, or one of proceedings before t h e conciliation institutions set u p by collective
agreement. T h e extent to which t h e obligations imposed on t h e
associations by this system limit their freedom of action will be
more clearly understood from the following account of labour disputes.
LABOUR DISPUTES
T h e A c t of 1857 involved t h e repeal of t h e Ordinances of 1681
and 1800, and therefore removed the prohibition of strikes a n d lockouts. T h e trade associations subsequently formed availed themselves
1
As amended by the Act of 28 February 1927.
LABOUR O F F I C E : Legislative Series, 1927, Den. 1.
See INTERNATIONAL
2
Since 1911, the number of cases in which the conciliators have taken
action have been as follows :
1911
1913
1913
1914
J915
1916
1917
17
13
7
2
30
8
1918
1919
1920
1921
1922
19^3
1Q2J
19=5
9
36
24
20
6
5
11
is
DENMARK
2Q$
freely of this right, as has already been indicated ; but, on the other
hand, they betrayed no disinclination to set up and promote a system
for the prevention and peaceful settlement of their disputes. In spite
of the wide extension of the system of conciliation, however, the
Drinciüle of the right to strike was maintained.
Forms of Militant
Action
The weapons of the trade associations are still those of the
strike and lockout ; in addition, that of the boycott in all its forms
is used. The workers picket an undertaking in which a strike is in
progress and try to prevent the influx of blacklegs. The latter are
themselves boycotted. But even in the absence of a declared strike
or lockout, it has happened that members of the Confederation of
Trade Unions have refused to work together with those of the
Christian Workers' Union. How far the solidarity of the workers
in the Confederation of Trade Unions goes may be illustrated by
the following example : certain building employers in Esbjerg once
employed workers belonging to the Christian Workers' Union ; the
workers organised in the Confederation of Trade Unions thereupon
boycotted not only all the building undertakings directly involved,
but all work from which the employers in question might directly or
indirectly profit. Thus, they refused to allow painting on buildings
being erected or repaired by these employers. A firm which undertook such painting was at once boycotted and any other work which
the firm proposed to carry out was refused, for instance, the painting
of fishing boats ; the workers even went so far as to oppose any kind
of work on such fishing boats.
The employers, on the other side, make use of black lists to
prevent the engagement of workers to whom they object. Article 21
of the rules of the Employers' Association for the Metal Industry
provides for the creation of an information service for members with
respect to the appointment of new workers. The boycotting of
workers is also effected by the publication of their names and
addresses in the periodicals of the organisations, which warn members
from engaging them.
The boycott in the narrower sense, that is to say, the boycotting
of goods, is also used as a weapon by both workers and employers.
'«
296
FREEDOM OF ASSOCIATION
The Law on Militant
Action
The right to conduct labour disputes was recognised by the
September Agreement, which defined a strike or lockout as taking
place when the undertakings or workshops are systematically deserted
or closed with the consent or the express or tacit agreement of the
organisations concerned. Indirect recognition is further contained
in section 5, subsection 7, of the Act of 12 April 1910, which declares
that " if a strike or lockout is not unlawful, then the mere fact of
making a public communication that it may or will take effect is not
unlawful ".
This recognition of the principle does not prevent, however, the
application of restrictions which, if exceeded, make the weapon used
unlawful. It is possible, for instance, that the purpose for which the
weapon is used makes it unlawful.
Sympathetic strikes and lockouts are allowed and were recognised
both by the September Agreement and by the réport of the
1908 Committee which recommended procedure for the settlement
of labour disputes. A sympathetic strike or lockout would be unlawful, however, if the strike or lockout in whose support it is declared
was itself unlawful.
Political strikes and lockouts are practically unknown in Denmark. In 1920 the Confederation of Trade Unions declared a general
strike as a protest against the dismissal of the Radical Government
by the King, but this strike did not take full effect in practice, and
the fact that, in so far as it was carried out, it was considered illegal,
was due to the way it was conducted and not to the aim pursued.
The stoppage of work on 1 May is very generally provided for
in collective agreements.
Militant action may become unlawful owing to the manner in
which it is carried out.
If a collective agreement or the law provides for conciliation
procedure for the settlement of a dispute, the stoppage of work is not
allowed if such proceedings have been begun and not yet completed.
But, at least according to the 1921 Act, there is no obligation to "
demand the initiation of conciliation proceedings before a dispute has
begun.
The September Agreement also contains provisions which must
be observed before the declaration of a strike or lockout. No party
has the right to declare or recognise a strike or lockout, whatever its
DENMARK
297
object and scope, unless it has been decided on by a three-quarters
majority in the general meeting which is competent to decide in such
matters under the rules of the organisation concerned. Further t the
party which proposes to declare a strike or lockout must notify the
other party by registered letter within a period of fourteen days that
the competent general meeting is being convened for taking a decision
on a strike or lockout. Seven days before the strike or lockout begins
the opposite party must be informed that the competent meeting has
decided on the stoppage of work, as well as of its probable extent.
The parties engage in the Agreement to recognise and support no
strike or lockout which is not declared in accordance with the above
regulations.
- • Strikes and lockouts which involve a breach of an existing collective agreement are unlawful. The same applies if the action is
contrary to an arbitration award or a decision of the Permanent
Arbitration Court. This is provided for in section 4 of the Act of
12 April 1910. Breaches of collective agreements are dealt with by
the Permanent Arbitration Court, and the organisation declared guilty
is liable to the extent of its property for such unlawful militant
action. In any case, however, the organisation must itself have taken
part in the unlawful breach of the agreement.
The penalty to which an organisation renders itself liable is that
of a fine. The Joint Committee of 1908 met with much difficulty in
reaching an agreement on this question of liability. The employers
had demanded that in all cases the organisation should be responsible
for the breach of a collective agreement, but this was opposed by the
workers, who feared that it might seriously endanger the existence
of their organisations. The Committee unanimously recognised that
the principles of the law of contracts did not afford sufficient security
for the observance of collective agreements, as many contraventions
often entailed no pecuniary injury. Moreover, under civil law, guilt
had to be proved before damages could be awarded, and this was often
difficult. It was, besides, impossible to consider that the total
injuries suffered could be compensated, as the sums involved were
frequently -very high. These arguments led to the introduction of
a fine as a compromise between a penalty and damages. The amount
of the fine depends on the extent of the injury suffered. In particularly extenuating circumstances it may be withdrawn altogether, if
the conduct of the party against whom the stoppage of work is
directed is contrary to the agreement and provides sufficient grounds
208
FREEDOM OF ASSOCIATION
for stoppage. On the other h a n d , it is considered an aggravating
circumstance if the party which has acted contrary to the agreement
in the dispute refuses to have t h e case settled by arbitration, although
bound to do so by the agreement, or if it acts contrary to a past award
or a decision of the Arbitration Court. An illustration of the sums
that may be involved is given by a case of 1919 when the Dockers'
Union was fined 800,000 kroner for an unlawful strike in the port
of Copenhagen. I n certain other cases, too, organisations have been
fined so heavily that they became b a n k r u p t and had to be dissolved.
I n addition to these special regulations relating t o labour disputes
a n d breaches of agreement, the provisions of the general law may be
applied to actions committed during a dispute. First, u n d e r criminal
law, although a strike or similar action is not defined as an offence,
use has been made of the general regulations for the protection of
freedom, the person ) property, and personal honour. Penalties for
intimidation have been among the most frequent ; for instance, for
publishing the names of certain persons as strike breakers in the
press \ On the other h a n d ( when in another case the names of the
persons willing to work were published under the description of strike
breakers, it was not considered a n offence for this action was taken
in support of a blockade declared owing to the breach of an agreement
by the employer 2 . I n another case, the simple enumeration of the
names of persons who had worked during a strike was not considered
an offence 3 .
T h e civil courts have always been called on much more than the
criminal courts to decide on unlawful actions in labour disputes. I n
particular the courts regarded the public notification that an undert a k i n g was blockaded as unlawful 4 . T h i s legal situation was altered
by the Act of 12 April 1910, section 5 of which declared that such
notifications are not unlawful 5
1
Decision of the Copenhagen Court (Hof- og Statsretsdom),
27 Sept.
1909.
2
Decision of the Supreme Court (Höjesteretsdom),
11 May 1910.
Decision of the Copenhagen Court of 6 Nov. 1911.
4
Even the proclamation by an organisation of a demand that no
work should be accepted with a specified employer because that employer
had withheld the wages of members of the organisation was deemed to
be unlawful, regardless of whether the employer had the right to withhold
wages or not. Decision of the Superior Court (Overretsdom), 17 May 1909.
5
Cf. the decisions of the Copenhagen Court of 15 Dec. 1913 and
22 June 1914 and that of the Superior Court of 19 June 1916.
3
DENMARK
299
T h e publication of the names of strike breakers is still unlawful 1.
T h u s the decision of the Supreme Court of 11 May 1910 declared
t h a t the publication of the names of strike breakers, although not
punishable, was unlawful under civil law. T h e notification must,
however, be public. W h e n , for instance, the Danish Oil Millers'
Association wrote to the members of the Copenhagen Carters'
Association u r g i n g them' not to engage certain drivers on strike,
specifying them by name, before the end of the strike, this action
was not considered unlawful because it related to a private a n d not
a public communication 2 .
W h e n t h e boycott is one of workers by workers or employers
by employers the practice of the courts is in favour of regarding the
notification of such a measure to the members of the organisation as
lawful but its general publication as unlawful 3 .
Special importance attaches to a more recent decision of the
Supreme Court of 16 J u n e 1926, which declared a boycott unlawful
because the organisations which h a d declared it had falsely accused
the other party of having declared a lockout ; further, because the
organisations had on various occasions published the names of persons w i t h whom t h e boycotted firm engaged in business ; and,
finally, because by their action they aimed at m a k i n g it impossible
for t h e boycotted party to dispose of its products.
T h e penalty for such actions as are unlawful under-civil law is
the payment of damages to an unlimited amount.
1
Decisions of the Supreme Court ot 11 May 1910 and the Copenhagen
Court of 19 Dec. 1910, 6 Nov. 1911, and 30 April 1917.
2
Decision of Copenhagen Court of 9 Jan. 1911.
3
Decisions of Copenhagen Court of 1 July 1901 and 15 June 1903.
CONCLUSION
At an early date Denmark allowed her citizens the right of
association and assembly, and combinations for trade purposes have
grown up unhampered. The struggle for the right of association for
trade purposes was consequently an immediate issue between
employers and workers only, and ended at the close of the nineteenth
century in the mutual recognition of trade organisations. A network
of collective agreements sprang up throughout the c o u n t y and
legislation was introduced for securing their observance without
forgetting to ensure the existence of trade associations. A system
of conciliation and arbitration was built up partly by collective
agreements, partly by legislation, the latter being based very largely
on the initiative of the organisations themselves. The right of the
organisations to reach their ends through labour disputes remained
untouched. But the institutions intended to prevent and shorten
disputes, which cannot act without the co-operation of the organisations concerned, are well suited to lessen the risks and acuteness of
such struggles.
Trade associations have organised far-reaching social institutions, which have served as a model for the legislature. They take
part in social administrative activities, even if in the main only in an
advisory capacity.
Hitherto the law has allowed free play to the right of association.
It hardly touches the particular constitution and activities of
associations, and where it intervenes it very largely entrusts to the
organisations themselves the duty of administering the law.
BIBLIOGRAPHY
CHRISTENSEN, P. and DAHLGAARD, Fr.
Kooperation.
COHN, M. " Foreuing ", in Salomonsens
DALHOFF, J.
" Lockout ", in Saloriionsens
ELMOUIST, H j . Den kollektive
Problem (1918).
Konversationsleksikon.
Konversationsleksikon.
Arbejdsoverenskomst
JENSEN, J. and OLSEN, C.-M. Oversigt over
i.Danmark i Tiden fra i8ji til 1900.
Fagforeningsbevaegelsen
KNÜD BERLIN.
tionsleksikon.
" Foreningsfrihed ", in Salomonsens
MATZEN, H .
Stats/orjatningsret.
Den danske
RIIS-HANSEN. " Blokade ", in Salomonsens
.—— " Boykotting ", sammesteds.
STREM. De kollektive
som reteigt
Konversa-
Konversationsleksikon.
Arbejdskampe.
VINDING-KRUSE. Arbejdsets og Kapitalens Organisationer
reteigt
bedömt (1913).
ZEUTHEN, F . Danmarks sociale Lovgivning i Hovedtraek.
Aarlige Beretninger om Dansk Arbejdsgiverforenings
Virksomhed.
Aarlige Beretninger om de samvirkende Fagforbunds
Virksomhed.
Arbejderen.
Arbejds giver en.
Arbejdsgiverforeningen
gennem 2¡ Aar. 1896-1921.
Arbejdsgiverforeningens
Haandbog 1925-1926.
Arbejdsstandsningen
af 24 Maj i8çç.
Beretning fra Faellesudvalget af 17/8/1908 aangaaende
Arbejdsstridigheder.
Beretning fra Faellesudvalget
af 1/6/1915 aangaaende
Arbejdsstridigheder.
Betaenkning afgivet af " Arbejdskommissioven
af 7925 " verdrorende
Maegling og Voldgift i
Interessestridigheder.
Den faste Vodlgiftsrets
Kendelser.
De samvirkende Fagforbund i Danmark 1898-1923.
Lommebog for Arbejdere.
Statistisk
Aarbog.
Ugeskrift for Retsvaesen.
NORWAY
§ 1. — History and Present Position of the Trade Union Movement
HISTORICAL SURVEY
The history of Norwegian combinations may be divided into four
periods : the guild period from the thirteenth to the beginning of the
nineteenth century, the transition period from 1840 to 1870, the
creation of the fighting organisations from 1870 to 1900, and the
period since 1900.
At the time of the guilds masters and journeymen were as a rule
on good terms with each other. Journeymen could expect to join the
ranks of the masters, and there was therefore no social cleavage
between those in authority and their subordinates. So long as production was based on small undertakings with sharply limited markets
the guilds enjoyed economic supremacy. But although they retained
their influence in Norway longer than in other European countries,
they had ultimately to give way to the policy of free competition which
began to prevail in the eighteenth century. The principle of freedom
of industry was established by the Constitution of 1814, and the guild
system was abolished by the Act of 1839. Artisans then formed free
associations as a means of protecting their common interests.
The workers were not yet organised, however, apart from certain
journeymen's fraternities, formed during the guild period, some of
which were turned into mutual aid funds. The first workers' association in Norway was founded in 1848 by Marcus Thrane, the leader
of the so-called Thrane movement. By 1850 there were 273 associations, with 20,000 members. They fought primarily for higher wages
and better conditions of work, but from the outset the movement was
also definitely political. In 1851 it was crushed by force.
During the 'sixties and into the 'seventies of the nineteenth
century so-called labour societies (Arbeidersamfund) were formed,
which admitted to membership persons belonging to other classes as
3°4
FREEDOM OF ASSOCIATION
well as workers. They must therefore be regarded more as educational associations than as trade associations in the proper sense. In
the 'seventies industries on a large scale began to be established in
Norway, particularly the shipping industry, and a new era set in.
The rise in prices and the increasing demand for labour led in 1872
to a strike movement covering the whole country, and during the four
following years various local trade unions were formed. From 1876
onwards, however, serious economic depression prevailed, and most
- of these trade unions disappeared.
The trade union movement did not revive until the 'eighties,
when unions were formed in most towns. These devoted themselves
in the main to the education and assistance of the workers, for the
experience of the past ten years of depression and several strike
failures had weakened the belief in the possibility of making progress
by militant action. It was even desired to include the masters in the
unions, as a means of promoting co-operation between masters and
men. Politically, most of these unions were Liberal in tendency,
many of their leaders being recruited from that party. But as some
of the Liberals were opposed to the workers' demand for general.
suffrage, the relations between them gradually cooled. At the same
time the workers' opposition to the employers again became more
marked, and after the several big strikes of 1889 the trade unions
broke off all relations with the masters. In 1890 a separate Labour
Party was formed, and at about the same time the growing trade
union movement adopted as its principal aim the improvement of
conditions of work. Its attitude towards employers became one of
direct hostility, and it tried to organise all workers in national unions.
This led to the formation, for instance, of the Woodworkers' Union,
the Iron and Metal Workers' Union, the Bakers' Union, etc. By the
end of the century there were 13 national unions with about 9,000
members.
In view of this development, the need was soon felt of combining
the various existing unions in a central organisation. This was
hampered, however, by various difficulties, in particular political
differences between the Liberals and Socialists, and centralisation
could not be carried out as rapidly as in Denmark and Sweden. At
last, after many fruitless attempts, a central organisation was created
in 1899 — the Confederation of Trade Unions (Arbeidernes Faglige
Landsorganisation).
In the face of the development of the trade unions the employers
NORWAY
3°5
were unable to remain passive. A s early as 1836 the handicraft
associations already mentioned, together with the industrial associations, combined to form " T h e Norwegian Joint Association for H a n d i crafts a n d I n d u s t r y " (Den norske Faellesforening
for
Haandvaerk
og Industri).
Properly speaking, however, this was not a fighting
organisation directed against the workers, and it never took a n active
part in a labour dispute. I t was not until 1890 that employers began
to form special organisations for the defence of their interests against
trade unions. T h e outcome of this movement was the formation of
t h e Norwegian Employers' Federation (Norsk
Arbeidsgiverforening)
in November 1900.
T h i s free development of trade combinations was possible only
because the law never placed a n obstacle in their way. T h e right to
combine for obtaining better conditions of work has in principle never
been disputed in Norway. W i t h the growth of the organisations,
however, it was found that employers often prevented their workers
from joining trade unions or t a k i n g part in their activities. Application was therefore made to the legislative authorities that t h e y m i g h t
intervene to protect the freedom of association. I n 1894 several
dismissed factory workers submitted to the Parliament, or " S t o r t h i n g " ,
a demand for relief out of State funds. I t was ascertained t h a t t h e
dismissal of m a n y of these workers was due to the fact t h a t t h e
manager of the u n d e r t a k i n g d i d n o t approve ofjtheir political opinions,
a n d t h a t t h e y had tried to form a trade union. After a heated debate
the Storthing adopted the following resolution :
The Storthing, which in accordance with the Constitution considers
it the inviolable right of every citizen of the State to fulfil his civic duties
in accordance with his own free convictions, proclaims its disapproval of
any undue pressure beinp- brought to bear on persons in dependent positions by their superiors, or of their being deprived of their position for
political reasons.
T h e workers in quesion were granted the sum of 10,000 kroner..
On various occasions subsequently the Storthing discussed t h e
question of special legislation for the protection of the right of association, but no Act was passed. Since 1900, however, and the outbreak of serious industrial disputes, the legislature had to intervene
in another form, that of introducing regulations on industrial conciliation and arbitration.
T h e trade associations themselves had already made various
attempts to introduce a system for t h e settlement of their disputes b y
Freedom of Association
?o
30Ó
FREEDOM OF ASSOCIATION
conciliation or arbitration. A resolution to this effect was adopted by
the Scandinavian Workers' Congress held at Gothenburg in 1886. In
1901 the Confederation of Trade Unions drafted a Bill, and in 1902 the
Confederation and the Norwegian Employers' Federation concluded
an agreement which arranged, among other things, that all disputes
should be settled by conciliation or arbitration. If conciliation failed,
an arbitration court should be set up at the request of either party if
the dispute arose out of an existing agreement (rettstvist .- dispute
about rights). In disputes about the conclusion of new agreements
(interessekonflikt : conflict of interests) both parties would have to
agree to resort to arbitration. This agreement was cancelled in 1905
by the Confederation of Trade Unions, and it became the custom
instead to introduce provisions on conciliation and arbitration in the
separate collective agreements.
After the first unsuccessful attempts to pass legislation on conciliation and arbitration, the Government introduced Bills in 1912 and
1913 providing for compulsory conciliation procedure and in certain
circumstances also compulsory arbitration. The Employers' Federation and the Confederation of Trade Unions were both opposed to
compulsory arbitration, however, and in 1913 they set up a Joint
Committee, which drafted a scheme making no provision for
arbitration.
A law was not enacted until during the war. As the Federation
of Trade Unions threatened to declare a general strike if provisions
for compulsory arbitration were made law, the Government dropped
these provisions, in view of the conditions created by the war. The
Labour Disputes Act of 6 August 1915 was thus passed. Owing to
extensive wage disputes in 1916, however, a provisional Act introducing compulsory arbitration was passed on 9 June, being renewed by
the provisional Acts of 4 April 1919 and 19 March 1920. Another
provisional Act authorised the continuation of the system of compulsory arbitration for the period from 31 March 1922 to 1 April 1923.
In 1927 the Labour Disputes Act of 5 May 1927 revised the whole
system of conciliation and arbitration, while a second Act of the same
date, adopted in order to supplement it, reintroduced compulsory
arbitration, though for a limited period only, namely, up to
1 August 1929.
NORWAY
307
T H E PRESENT TRADE UNION MOVEMENT
The first trade unions were formed by industrial workers, who
were followed by the workers in agriculture, forestry and fisheries,
and by salaried employees. The industrial workers' unions are still
the best organised, however, being much stronger than those of the
other workers mentioned.
The basic unit of the trade union is the local branch (avdelitig),
formed for a given branch of industry and often divided into separate
workshop clubs (verkstedskliibb) for particular undertakings. The
various branches in a locality are frequently combined into local trade
union councils (lokal samorganisasjon), whose activities are considerable, although now they do not, as before, intervene in labour
disputes.
The unions in which the local branches are combined cover the
whole of the country (forbund).
In Norway, too, the question has
arisen whether these unions should cover certain trades or whole
industries. The 1923 Trade Union Congress decided on the change
from " craft " to " industrial " unions, but so far only a few unions
have carried this into effect. Finally, the national unions are combined in the Confederation of Trade Unions.
In the 'nineties of last century the Conservative Party tried to
counteract the trade unions by forming " Conservative Labour Associations ". The best known of these was the 1894 Labour Association,
formed at Oslo, which is still in existence. Compared with the other
trade unions, however, these associations are not of much importance. Their membership consists mainly of master artisans.
On the other hand, since 1921, a special form of organisation,
the so-called " committees of action ", has been created. These bodies
are formed ad hoc to organise particular disputes, and they disappear
when the dispute is over ; sometimes these temporary organisations
have acted in opposition to the trade unions. They too have by now
lost importance.
The associations of salaried employees aim primarily at supporting and educating their members, rather than at fighting for better
conditions of employment. Among fighting organisations in the
stricter sense, reference may be made to the Norwegian Commercial
and Office Employees' Union. There are also organisations of workers
and officials employed in State undertakings, for instance, of railwaymen, postal workers, municipal workers, teachers, etc.
30S
-
FREEDOM OF ASSOCIATION
The employers, who were later in forming their organisations
than the workers, are still not so compactly organised as these. They
have several central organisations, chief of which is the Norwegian
Employers' Federation already mentioned, which includes both industrial federations and individual undertakings. Owing to the large
area of the country, and the variety in economic conditions in different
districts, a territorial classification has been necessary, side by side
with and complementing the industrial classification. As a rule, State
and communal undertakings do not belong to any employers' organisation.
§ 2. — The Legal Conditions Governing Combination
for Trade Purposes
T H E R I G H T TO COMBINE
The law of Norway contains no provision on the right to combine. But, as explained in the historical introduction, this right has
never been disputed in practice, and may therefore be considered to
exist as an unwritten law, recognised by its constant exercise.
On the other hand, the Act of 4 July 1927 added a provision to
section 222 of the Penal Code, rendering any person liable to a fine
of up to 25,000 kroner or imprisonment of up to one year who tries
by boycotting to compel a worker or employer to join a workers' or
employers' association, as the case may be. This law applies equallv
to those guilty of such action and to those who incite others to such
action.
Provisions in collective agreements by which employers undertake
to engage only organised workers are considered lawful.
LEGAL STATUS OF T R A D E ASSOCIATIONS
Trade associations are subject to the general law of association.
In addition, the Labour Disputes Act of 5 May 1927 contains several
regulations on trade associations which, although closely connected
with the purpose of this Act, that of regulating the settlement of
labour disputes, are also, and not least on account of this very purpose, of general importance to the status of trade associations. It may
be assumed in the present connection that the principles of the Act,
which' applies to trade unions and employers' associations " within the
NORWAY
309
meaning of the Act ", can claim to be valid for trade associations in
general.
According to the provisions of the general law, no special regulations apply to the formation of trade associations ; no particular
formalities have to be fulfilled, no particular procedure is prescribed.
But their aims must not be contrary to the law or offend against
public order and morality. Section 30 of the Penal Code imposes a
penalty on any person who forms or belongs to an association which
is prohibited by the law, or aims at performing unlawful acts or
encouraging others in such action. Similarly, it is forbidden to form
or belong to an association whose members bind themselves to absolute
obedience to someone. In practice, however, these various regulations are not used against trade associations.
The lawful association is a legal person and has the same rights
as a physical person, it can therefore acquire property, enter into
contracts, and sue and be sued before the courts. Only physical
persons, however, can be prosecuted on a criminal charge.
There is no supervision of associations by the public authorities,
nor are there any legislative provisions concerning the compulsory
dissolution of trade unions, apart from the case of bankruptcy.
Among the provisions of the Labour Disputes Act of 5 May 1927,
applying only to trade associations, which supplement the regulations
based on the general law on association, reference may be made to
section 2, according to which trade unions, employers' associations, and
their federations are bound to supply information on their organisation, membership, etc., at the request of the administrative authorities
concerned or of the State conciliator. The provisions of the earlier
Labour Disputes Act of 1915 concerning notification were not used
in practice.
For the purposes of the Act, section 1 defines as a trade union
any organisation of workers or of workers' associations whose aim it
is to protect the workers' interests as against their employers. This
provision clearly limits the meaning of the term. Mixed unions are
excluded, and the union must be formed not merely to promote the
workers' general interests, for instance by education or mutual aid,
but to represent their interests as against employers. It is obviously
a matter of indifference whether the union consists directly of workers
or of workers' associations.
There is no other legislation concerning the formation and
3IO
FREEDOM OF ASSOCIATION
existence of workers' unions. Other regulations are to be found in the
rules of the union. These define the aims of the union, which must
b e kept within the law. As the above will have shown, the pursuit
of political aims is not forbidden. According to their rules, however,
the unions are politically neutral, and the independence of the Confederation of Trade Unions with respect to political parties was
expressly declared by the Trade Union Congress in 1925. But this
does not prevent the unions from in practice co-operating with the
Labour Party. Thus a member of the Central Committee of the
Norwegian Labour Party is a member of the Secretariat of the Confederation of Trades Unions, just as a member of the Secretariat sits
on the Central Committee of the Party.
There are no special conditions connected with joining a trade
union, and no formal contracts are drawn up. Similarly, no particular
conditions are laid down for obtaining leading positions in the unions.
The maintenance of discipline in the unions is also governed
solely by the rules. Serious offences against union discipline lead to
the exclusion of a member ; this applies in particular to the acceptance
of blackleg work against the decision of the union, an offence which
may also lead to a boycott of the person in question. An appeal
against the decision of the union may be taken to the executive of
the national union, whose decision is final. Proceedings cannot be
instituted before the ordinary courts.
The Labour Disputes Act of 5 May 1927 defines as an employers'
association any organisation of employers or of employers'
associations whose aim is to protect the employers' interests as against
the workers. Thus, for the employers as well as for the workers, the
Act excludes all associations for promoting general economic interests
as distinct from employers' associations in the strict sense.
The individual features of the structure of employers' associations
are dealt with by the rules, just as in the case of the trade unions.
§ 3. — Activities of Trade Associations
INTERNAL ACTIVITIES AND CO-OPERATION W I T H STATE
AUTHORITIES
Trade associations are completely free to organise their internal
activities, and the only regulations are those contained in their own
rules. Whereas the field of activity of the employers' associations is
NORWAY
311
usually fairly limited, that of the trade unions, on the contrary, is
much wider. At an early date the latter encouraged mutual aid
institutions. They had opened sickness funds before the State
established compulsory sickness insurance by the Act of 1909. Some
unions have disablement funds. They have displayed particular
activity in relieving unemployment. In practice the unions are the
only institutions which have been successful in this field, and it was
in public recognition of this fact that the Act of 12 July 1906 introduced the Ghent system and granted subsidies to the trade union
unemployment funds. The Act of 1 August 1915, too, as well as the
supplementary regulations, is based on the Ghent system, under
which the funds formed by the unions are granted subsidies if they
satisfy the statutory conditions. The finances of the unemployment
fund must, however, be kept separate from those of the union. All
unemployment funds at present in existence have been set up by the
trade unions.
The trade unions have done much to support the co-operative
movement. It may be mentioned, in particular, that unions in the more
important towns have founded co-operative building societies for the
erection of cheap houses.
The extent to which trade associations are called on to co-operate
with the State is not very great. They are usually consulted by the
Government on the drafting of Bills affecting their interests, but they
do not participate in carrying out such legislation. It is true that the
Public Employment Exchanges Act of 12 June 1906 provides for the
appointment of supervisory committees on which employers and
workers are equally represented, but the Act does not expressly
provide that these representatives shall be selected from the trade
associations.
Trade associations which set up unemployment funds under the
Unemployment Insurance Act must also give members of the trade
who do not belong to the association an opportunity of representation.
In this respect the associations exercise public functions, as is clear
from the fact that persons who are insured in a union fund may lodge
an appeal against its decisions with the administrative authorities.
The participation of trade associations in the system of conciliation
and arbitration and the Labour Court will be more suitably dealt with
later.
3' 2
FREEDOM OF ASSOCIATION
PARTICIPATION IN T H E DETERMINATION AND ENFORCEMENT
OF CONDITIONS OF W O R K
According to Norwegian law the workers' committees provided
for in the provisional Act of 23 July 1920 share in the administration
of the conditions of work in undertakings. These committees represent the workers in individual undertakings as against their employers.
Their functions are mainly advisory, and, according to the Act, the
committees have no connection with the trade unions. They are, in
fact, not very important, and it may be said that their institution has
neither extended nor limited the rights of trade unions.
A much greater part is played by collective agreements, by means
of which the trade associations of employers, as well as of workers,
have gained great influence on the determination of conditions of
work. The right of collective bargaining has been governed by law
since the Labour Disputes Act of 6 August 1915 ; it is now governed
by the Act of 5 May 1927. The provisions of the Act are of fundamental importance for the rights and obligations of trade associations.
The Act defines a collective agreement as an agreement between
a trade union and an employer or employers' association concerning
wages and conditions of work or other conditions of employment.
For the purposes of the Act, therefore, the party to an agreement on
the employers' side may be an individual employer or an employers*
association ; that on the workers' side, on the other hand, is only the
trade union. In addition the associations of employers and workers
must come within the definition of the Act, as explained above.
The members of associations parties to an agreement are, tò a
certain extent, bound by the agreements of their organisations. If a
contract of work is concluded between a worker and an employer
covered by a collective agreement, the contract must comply with the
provisions of the agreement. Any provisions to the contrary are
invalid (section 3, subsection 3, of the Act). Further, members or
branches of an association cannot be freed by resignation or exclusion
from their obligations arising out of collective agreements to which
the association is party at the time (section 3, subsection 4). Otherwise the extent to which an agreement binds the members of the
associations is decided according to the individual merits of the case.
On the other hand, it is the duty of the association to see to it that
the agreements it has concluded are observed. Its liability in this
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31?
respect was rendered stricter by the Act of 1927. According to t h e
1915 A c t the association was liable for breaches of a collective agreem e n t by its members, provided that it could be shown that the association was responsible for the breach or the continuation of t h e
conduct contrary to the a g r e e m e n t 1 . According to t h e 1927 Act t h e
association is liable unless it can prove t h a t it is not guilty, or t h a t
it has tried, with the means at its disposal, to prevent the breach.
T h e rights and duties of individual members of an association arising:
out of a collective agreement cannot be established otherwise than by
bringing a suit by or against the association before the L a b o u r C o u r t
(section 8 ) . T h i s provision must be regarded as an additional
statutory privilege for trade associations as compared with individual'
employers a n d workers. T h e same principle is contained in theprovision that a suit arising out of a collective agreement m a y be m a d e
to include a demand arising out of an individual contract of work
if this demand can be directly settled by the decision concerning theprincipal suit. T h e interpretation given by the Labour Court in its;
decision on a collective agreement applies also to any contract of work
concluded under the agreement (section 9 ) . I n other cases suits for
the breach of a collective agreement m a y be b r o u g h t before theordinary courts.
LABOUR
DISPUTES
Weapons
Used
I n Norway, a s in other countries, the chief weapons of t h e w o r k ers in the struggle against employers are strikes a n d boycotts, thought h e latter are of m u c h less importance. T o secure the carrying out o f
a strike the workers occasionally use the system of boycotting those
other workers w h o refuse to observe the strike order.
T h e employers' weapon is the lockout, which is often accompanied*
b y ' t h e boycotting of workers (black lists) or even of other employersw h o refuse to comply with the orders of t h e association.
Legal
Status
T h e right to organise or to take part in a labour dispute is granted'
in principle, and an indirect recognition of the chief weapons o f
1
For the breach of a collective agreement caused by a stoppage of."
work, see pp. 315 et seq.
3H
FREEDOM OF ASSOCIATION
industrial warfare is to be found in the Act of 5 May 1927, which
defines them as follows :
A strike is a complete or partial stoppage of work organised by the
workers in common or by mutual agreement with a view to enforcing the
settlement of a dispute between a trade union and an employer or an
employers' association.
A lockout is a complete or partial stoppage of work organised by an
emploj'er with a view to enforcing the settlement of a dispute between
himself or another employer and a trade union, or between an employers'
association and a trade union, irrespective of whether other workers are
engaged instead of those locked out.
A notice to stop work is notice given to employers by workers or to
workers by employers with a view to organising a strike or lockout.
A l t h o u g h these definitions were laid down only with reference
to the L,abour Disputes Act, they are of far-reaching importance, as
the principal limitations on the freedom to use these weapons result
from this Act and the related Compulsory Arbitration Act of
5 May 1927.
T h e right to strike of persons employed by the State or local
authorities is strictly limited, t h o u g h recognised to a certain e x t e n t .
According to section 27 of the Public Employees Act of 15 F e b r u a r y
1918, such employees may resign their posts after three m o n t h s '
notice if they are not appointed for a specified period. T h e notice
may, however, be made shorter by special regulation. On the other
h a n d , the authority that appointed such employees may, if it considers
that their action was taken by agreement or understanding with each
other, and that the resignation will endanger important public
interests, require of them to remain in the service after the expiration
of the notice, but for not more than three m o n t h s . Such instructions
must be given within fourteen days of the notice, and the employees
may lodge an appeal against them, although this does not suspend
their effect. After t h e three m o n t h s ' notice, public employees are
entitled to strike irrespective of whether this interferes with public
interests.
A Bill has been drafted, however, which would abolish the right
to strike of public employees, granting them in return certain guarantees in the consideration of their conditions of work 1. I t is assumed
that civil servants have no right to strike, but the courts have not yet
decided this question.
1
The Act of 15 Feb. 1918 provides for the appointment of so-called
officials' committees for State employees.
NORWAY
SIS
Restrictions on the use of militant action are often to be found
in collective agreements. As a rule these lay down that, for the
period of validity of the agreement, the parties are not entitled to
resort to force in matters connected with their rights and obligations
under the agreement ; but this also means that the resort to sympathetic strikes or lockouts is not restricted. T h e following provision
is typical of most collective agreements :
In any dispute between an undertaking and its workers covered by
this agreement an attempt must first be made to settle it by negotiation
between the management of the undertaking concerned and the workers,
the latter being represented by their delegates
(tillidsmann).
If agreement is not reached, or if the dispute is one between organisations, negotiations must be opened between the National Union in question
and the Norwegian Employers' Association or the subordinate organisations authorised by these bodies for the purpose. A meeting for negotiations shall be held not later than eight days after a written application
to that effect has been submitted by either party.
Disputes connected with this agreement may not be settled by a
stoppage of work, but either party may refer them to the Labour Court.
The above regulations do not restrict the risrht of the undertakings
or workers to participate, without previous negotiations, in a stoppage of
work decided on or approved by the Norwegian Employers' Federation
or the Confederation of Trade Unions.
T h e chief limitation on the use of militant action is contained in
t h e two Acts of 5 May 1927. H e r e a fundamental distinction should
be drawn between disputes about rights a n d conflicts of interests ; it
underlies the Acts, although they do not actually use t h e terms.
According to the Labour Disputes Act a dispute about rights is
one between a trade union a n d a n employer or employers' association
concerning the validity, interpretation, or maintenance of a collective
agreement, or concerning demands based on a collective agreement
(section 6, subsection 1). I t is forbidden to try and settle such a
dispute by a strike or lockout (section 6, subsection 1), and it must
instead be b r o u g h t before the Labour Court (section 8 ) , whose decision
is final (sections 18 et s e q . ) .
T h e legal status of trade unions, as determined by these regulations, depends largely on what position they occupy in such proceedings and what effects the decisions of the Court may have on them.
T h e first point of importance is the composition of the Labour Court.
According to t h e 1915 A c t it consisted of a chairman and four
members, two b e i n g nominated by employers' associations and two
by workers' associations. T h e 1927 Act increased this membership to
seven, but, as before, the associations may only nominate two each.
3i6
FREEDOM OF ASSOCIATION
The remaining two, together with the chairman, are appointed by
the Government at its own discretion. The workers consider that this
change has placed them at a disadvantage, and have opposed it l.
On the employers' side, the right to nominate lies with associations covering not less than one hundred employers with not less
than one thousand workers ; on the workers' side, it lies with trade
unions with a membership of not less than ten thousand (section n ) .
Members of the Court may not belong to the management or
staff of a trade association. The chairman must be qualified to sit as
a judge in the Supreme Court. These provisions of the 1915 Act
remain unaltered. Of the members appointed by the Government,
one must have the same qualifications as the chairman. As regards
the other, it is merely required that his position or occupation should
not make him liable to be considered a representative of either party.
The procedure before the Labour Court is the same as that before
the ordinary courts. Its decisions are taken by simple majority
(section 25, subsection 1), and cannot be appealed against.
In the event of a breach of a collective agreement or an unlawful
stoppage of work, the Court may award damages. In assessing these
it must take into consideration, not only the extent of the damage,
but also the proven guilt and the misconduct of the injured party.
In particularly extenuating circumstances no damages need be
awarded (section 5).
In addition, however, individuals who are implicated in the
breach of agreement or the unlawful stoppage of work may be
punished (section 40). Even under the 1915 Act any person was
liable to a fine (of up to 25,000 kroner) who organised, continued, or
took part in an unlawful stoppage of work. Members of the management of a trade association were liable to punishment if they were
present when a decision was taken to organise, continue, or approve
a stoppage of work or to support such a stoppage out of the funds of
the association, or if they incited to an unlawful stoppage of work or
collected or distributed contributions for this purpose. The same
provision applied to members of the other administrative bodies of the
association and its staff (section 40, subsection 1, of the Act of
16 August 1915).
According to the 1927 Act (section 40, subsection 1) any person
1
Cf. for instance, Arbeiderbladet, 14 May 1927.
NORWAY
317
who takes part in or promotes action of the kind described above
may be punished by a fine of up to 25,000 kroner or imprisonment
of up to three months, or both. The mere participation by a worker
in an unlawful strike is, however, no longer punishable. The fine
may be collected from the association. Similar penalties are imposed
upon employers or their representatives who organise or continue an
unlawful lockout (section 40, subsection 2).
The 1927 Act contains a new penal regulation concerning militant
action in support of a strike or lockout (section 40, subsection 3).
It imposes the same penalty upon any person who, during an unlawful
stoppage of work, causes or tries to cause any person to lose or give
up his work, or to fail to seek or obtain work, if the intention is to
promote the carrying out of a stoppage of work ; or who causes or
tries to cause an employer to take part in an unlawful lockout or
refrain from employing workers affected by an unlawful lockout, or
an undertaking to support an unlawful lockout in any way. The same
applies to persons who assist in or instigate the carrying out of these
unlawful actions.
In addition to these stricter penal regulations, the 1927 Act
contained another innovation (section 6, subsection 2). If the Labour
Court decides that there has been a breach of an agreement or an
unlawful stoppage of work, and if the unlawful conditions have not
been set right within four days of its decision, the injured party or
the organisation to which he belongs may ask the Court to approve
the organisation of a strike or lockout. It is necessary that the chairman and one of the members appointed by the Government should
vote for the granting of such permission. If a strike or lockout is
accordingly organised, the Act expressly provides that the other party
may not take action against it.
All these provisions, too, have been much criticised by the
workers.
Different regulations apply to conflicts of interests. According to
section 6, subsection 3, of the 1927 Labour Disputes Act, a conflict of
interests is one between a trade union and an employer or employers'
association concerning conditions of work or wages not yet
governed by a collective agreement. Thè Act allows in principle that
such conflicts may be settled by militant action, but first of all conciliation must be tried, and it accordingly provides for a special
conciliation procedure (sections 27-39) • So far the legal position is
the same as that established by the 1915 Act.
3*8
FREEDOM OF ASSOCIATION
The outbreak of a conflict of interests must immediately be
notified (section 28) by the organisations or employers concerned,
or a central organisation, to a permanent conciliator appointed by the
Government (section 27). A strike or lockout may not be organised
until the period of notice has expired, and in no case until four days
after the notification of the conciliator. Otherwise the stoppage is
unlawful and entails the same penalties as the breach of a collective
agreement.
After receipt of the notification and until the conclusion of the
conciliation proceedings, the conciliator may forbid a stoppage of
work if he considers this injurious to the community. The conciliation proceedings, which must immediately be instituted, take place
before the conciliator or, at the request of both parties, before
a conciliation committee. The latter consists of the permanent conciliator and two assessors, whom he selects from two lists prepared
by the Government, for which the associations make recommendations
in the same way as for the selection of members of the Labour Court.
In practice, all disputes have so far been settled by the conciliators
and not by conciliation committees.
The proceedings are informal. If no settlement is arrived at,
either party may, after ten days, demand the conclusion of the
conciliation proceedings, but in that case it must not have refused to
take part in the proceedings. Not later than four days after the
submission of this demand, the proceedings must be closed. Any
stoppage organised before the conclusion of this period is unlawful,
and the persons who take part again render themselves liable to
punishment (section 6, subsection 3 ; section 40). After the conciliation proceedings have failed and all the periods fixed have
expired, the Labour Disputes Act allows a stoppage of work.
Here the second Act of 5 May 1927, which completes the Labour
Disputes Act, comes into play L. It provides that, on the recommendation of the State conciliator, the Government may decide that a
conflict of interests which endangers important public interests, and
has not been settled by conciliation, shall be decided by a binding
arbitration award. In connection with this a Decree forbidding a strike
or lockout may be issued.
The matter is brought before an Arbitration Court consisting of
a chairman and four members. The Confederation of Trade Unions
1
See p . 306.
NORWAY
3J9
and the Employers' Federation each appoint one member 1.
The
proceedings before this court correspond in the main to those before
the Labour Court, b u t individual cases may be referred to conciliation
in accordance with the Labour Disputes Act, if both parties are agreed
and declare that they will co-operate in the settlement of the point
at issue without organising a stoppage of work.
T h e decisions of the Arbitration Court are taken by simple
majority. No appeal is allowed against its award, which has the
force of a collective agreement, a n d renders a stoppage of work
illegal and liable to penalty (sections 4 a n d 6 ) .
If, during the period of validity of an arbitration award, there is
any change in the economic or social conditions on which it is based,
the proceedings m a y be reopened at the request of either party —
although not before six months after the giving of the award — and
if t h e Court considers this necessary, a new award m a y be given.
I n addition to the Acts of 5 May 1927, another was passed on
4 J u l y 1927, a m e n d i n g section 222 of the General Penal Code and
sensibly affecting t h e organisation of labour disputes 2 . T h i s imposes
a fine of 25 to 25,000 kroner or imprisonment of up to one year upon
any person who causes or tries to cause a person to leave his work, give
notice to his employer, or refrain from looking for or accepting work,
if the following means are used for this purpose :
(a)
if threats or violence are used against such person or the members
of his family, or if the person is insulted or molested ;„
(b) if he is followed about from place to place ;
(c) if the names of the persons who work, have worked, or have
tried to work during a stoppage, are published ;
(d) if the person is intimidated during his work or business.
Persons w h o incite to or take part in such action are punished in
the same way.
Although the Act also imposes penalties upon persons w h o , by
the use of specified methods, cause or try to cause workers to be
engaged, the enumeration of the unlawful methods shows that the
Act aims more at limiting strikes, picketing, a n d connected militant
action on the part of the workers rather than on that of employers.
1
As before, during the earlier legislation on compulsory arbitration
(before 1923), the workers have refused to appoint their representatives.
Cf. Industrial and Labour Information, Vol. X X I I I , No. 4, p. n o .
2
See p. 308.
CONCLUSION
It has been shown that in Norway there was of old scarcely any
legal restriction on the freedom to combine for trade purposes, and
that consequently trade associations have been able to develop
unhampered. It was only at a comparatively later date that the
legislature intervened, and then principally only for the purpose of
limiting labour disputes or replacing them by statutory procedure.
The limits thus imposed on disputes have not always been the same.
The Labour Disputes Act of 1915 prohibited only disputes which
involved the breach of a collective agreement and made the lawfulness
of other disputes depend upon the observance of conciliation procedure. In addition, attempts have been made from time to time to
limit the disputés considered lawful under the Act by the introduction
of compulsory arbitration. These attempts have always met with the
opposition of the organisations, particularly those of the workers, and
have not attained any lasting success. Nevertheless, in 1927 the
Storthing again passed a Compulsory Arbitration Act and imposed
additional penalties for stoppages of work, while at the same time
making the older penalties more stringent. The period of validity of
the Compulsory Arbitration Act is limited to. two years.
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GjELSViK, Prof.
Norsk Personrett.
GREVENOR, Henrik.
OESTRUM, Sigurd.
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Laugstiden
De kollektive
Christiania, 1923.
i Norge.
Oslo, 1924.
arbeidskampe
efter norsk
rett.
WIESENER, G. " Norges Sociallovgivning ved utgangen av 1921 "
(med tillegg for 1922-1924). Trykt i Sociale Meddelelser.
Arbeidernes
Fagligé Landsorganisations
Arbeidemes
skrift).
Faglige
Arbeidsgiveren
Landsorganisations
2¡-arsberetning.
Meddelelsesblad
(maneds-
(14-daglig skrift).
Den départementale
Tjenestemannskomites
innstüling
Icennstvister i offentlige tjenesteforhold.
Oslo, 1925.
Den départementale Voldgiftskomites
innstüling
voldgift i arbeidstv ister. Christiania, 1909.
Samme komites innstüling (II) om beskyttelse
og arbeitdets frihet. Christiania, 1912.
Freedom of Association
Oslo, 1927.
til lov
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(I) om megling
og
av
foreningsfriheten
SWEDEN
§ 1. — Historical Survey and Present Position
of Trade Union Movement
HISTORICAL SURVEY
A s elsewhere, so in Sweden the history of the freedom of association has not been the same for all groups of workers. T h e r e is indeed
a marked difference between agricultural and industrial workers in
this respect.
Some fifty years ago Sweden was still decidedly agricultural and
more than two-thirds (72.4 per cent.) of the population were engaged
in agriculture (including forestry a n d fishery). E v e n now not quite
half the population are dependent on agriculture, a n d of the remaining population only one-third are engaged in other trades 1.
Agricultural workers t h u s formed the majority of the whole body of
labour and even now provide a substantial contingent.
T h e conditions of agricultural workers had been governed since
the middle of the seventeenth century by the so-called Master and
Servants Act (legostadgan),
which w a s revised in 1833. F o r workers
without fixed residence or income (uian laga jörsvar), and later,
under the revised Act, for those w h o paid no taxes, the Act established
a sort of compulsory service, the aim being to prevent vagrancy and
at the same time secure the necessary supply of labour for agriculture.
T h i s form of compulsory service was abolished by the introduction
in 1885 of modern legislation on vagrancy. I n other respects, however,
this old Act remained in force for some time. I t fixed long periods
1
The Swedish Agricultural Labourer, published by order of " The
Swedish Government's Delegation for International Collaboration in
Social Politics ", Stockholm, 1921, p. 21. In 1920, 44 per cent, of the
population were dependent on agriculture, 35 per cent, on industry, and
15.2 per cent, on commerce and transport.
324
FREEDOM OF ASSOCIATION
of notice, to be given at special dates (flyttningsdag), and imposed
penalties for breach of contracts of employment.
Although the Act did not expressly prohibit association, these
provisions yet affected the right of association. Geographical and
economic conditions being what they were, it was long before the
idea of organising gained ground among agricultural workers. Even
as late as the beginning of the present century the prevailing patriarchal conditions in agriculture did in fact make it impossible for
organised workers to find employment or a livelihood in the countryside. In this connection it was even said that " gambling and
dunkenness are better tolerated than a trade union", that "as things
now are, a man is made out to be a bad workman simply for being
a member of a trade union, even if otherwise he be regarded as ever
so efficient " \ During the last score of years or so the position in
this respect has changed however. Certain particularly oppressive
provisions of the Act were gradually repealed (1919-1920), individual
conditions of work began to be regulated by collective agreements,
and, finally, the- Act of 8 June 1926 repealed the whole of the
old Act 2 .
The position of seamen under the Maritime Act of 1891 was
similar, but for them, too, there has recently been a change, and the
old restrictions were removed by the Seamen's Act of 1922.
The main impulse towards trade combination and the development
of the right of association came from the industrial workers, as in
most other countries. The course of development for them was
altogether different from that for agricultural workers.
During the Middle Ages and well into the modern era industrial
conditions in Sweden, as in Europe generally, were governed by the
guilds, which comprised also the associations and brotherhoods of
journeymen. The decay and restrictions of the guilds led the State
to take certain measures in the eighteenth century for facilitating the
carrying on of certain occupations. The Industrial Orders of 1722,
1739 and. 1770 set up the so-called Industrial Courts (hallrätter),
which were intended to regulate conditions of work. In spite of this,
the position of journeymen grew steadily worse, although the guild
1
2
Ibid., p. 40.
This Act also applied to domestic servants in towns who had taken
employment for not less than six months. In actual fact, however, its
application was rare, for, as a rule, contracts were and still are concluded
by the month only.
SWEDEN
325
system continued to exist in appearance, even if it had lost all vitality.
Industrial freedom and the right to work was not proclaimeâ until
1846, being established by a statutory Order of 18 June 1864. Even
so, the Order gave employers a certain power over their assistants and
workers (husbondevälde).
Thus the contract of work had to be drawn
up in the presence of witnesses and precisely define the conditions of
work, including the period of service, which should not exceed three
years. But stipulations to the contrary could be included in the
contract, and by degrees these regulations lost all importance.
The recognition of the freedom of trade created the conditions
for the formation of the present generally prevalent economic system,
while the workers became more and more aware of the need to
combine against the growing domination of the employers.
It is noteworthy that in Sweden the formation of associations
for the purpose of obtaining economic or other advantages has never
been prohibited ; in other words, there has been no prohibition of
combination. The right of association, like the right of assembly, is
regarded as a self-evident right based on the immemorial civil liberty
of the Swedish people, and as such it is not specially recognised in
the Constitution or in other law.
This does not mean, however, that the exercise of these rights
has not met with strong opposition, particularly in the social field.
As regards the right of assembly, the Penal Code of 1864 (Chapter X,
section 15) contains the general provision that the public authorities
shall not be denied access to a meeting, and that they may dissolve
it if the law is broken or if anything occurs contrary to public order.
In addition to this regulation, which did not impose restrictions of any
great importance, there were various Orders, in particular the Police
Regulations for the towns of Sweden of 27 March 1868, amended on
10 December 1886, by which the exercise of the right of assembly
could be substantially restricted. Thus, section 13 of these Police
Regulations prescribed that all meetings open to the public should be
notified, and that for open-air meetings permission must be obtained.
The Regulations further established a right of dissolving meetings
in other cases than those specified in the general Penal Code, for
instance, if the meeting had not been notified or had been held without
waiting for the necessary permission. The application of these Regulations was left to the discretion of the police authorities, and it led
in the 'eighties and 'nineties of last century to considerable criticism.
The result was the introduction of Bills for the purpose of securing
the right of assembly by law and repealing the Regulations.
«6
FREEDOM OF ASSOCIATION
Another restriction on the right of association could be imposed
by virtue of certain provisions of the general' Penal Code which were
introduced by the Act of io July 1899 (Akarpslagen) and were directed
against picketing. These provisions have subsequently been amended
and somewhat weakened, but they still exist. They will therefore be
discussed later in more detail 1 .
These few legislative provisions may have inconvenienced the
trade associations for some time, but could have no decisive influence
on the development of the trade union movement. This development
was in the main unhampered, although it was accompanied by serious
struggles, both social and political.
The first workers' associations that were formed during the
nineteenth century were clearly related to the journeymen's companies
of the guild period ; this applies, for instance, to the Stockholm
Typographical Association founded in 1846. They were mostly of
the friendly society type. The Union of Stockholm Bookbinders,
founded in 1872, also devoted itself at first mainly to the " profit and
entertainment " of its members, its chief importance being as a sickness
and funeral benefit fund. The growing industrialisation of the country
and the creation of an industrial proletariat, living in unsatisfactory
conditions, encouraged the formation of combinations. Discontent
among industrial workers was great, particularly when a strike of
sawmill workers was suppressed by the military authorities (1879).
In the 'eighties of the nineteenth century, therefore, fighting organisations of the workers, i.e. trade unions in the true sense, began to
be formed.
The young trade unions were in closest touch with the Socialist
Party, and under its influence they combined in 1898 to form a joint
association, the Swedish Confederation of Trade Unions {Landsorganisationen i Sverge).
This gave the separate unions greater
power, making it possible for them, in the absence • of legislative
restrictions, to fight for their aims on political lines as well. This
co-operation between the trade unions and the political forces of labour
was particularly clear in the general strike of May 1902, lasting several
days, in which some 100,000 workers participated, although unsuccessfully, in support of a demand for universal suffrage.
Even as late as the 'nineties certain employers tried to refuse
recognition of the trade unions, and several disputes were fought
precisely on this point. In 1899 these questions gave rise to the great
1
See pp. 344 et seq.
SWEDEN
327
conflict in the Sundsvall sawmill district, which led the leader of the
Social-Democratic Party, and its only representative in Parliament,
Hjalmar Branting, with the support of the liberal Party leader, to
ask the Government whether it did not propose to protect the right
of association of Swedish citizens, " which had been recognised from
of old ", against violation. Although his interpellation led to no
legislative action, the better organisation of the workers as a rule
enabled them to enforce their demands unaided.
The closer organisation of labour led soon to a change in policy
among employers. The attempts made towards the end of the century
to concentrate the scattered associations of employers failed owing
to the variety of their political opinions, but the general strike of
1902 was soon followed by the formation in September of that year
of the Swedish Employers' Federation (Svenska ar betsgifvarefor eningen). At the same time, the local organisations in the engineering
industry formed a national federation (Sveriges
verkstadsförening),
and in 1903 a third federation, the Central Employers' Federation
(Centrala arbetsgifvareförbundet), was formed by employers in building and related handicraft trades and in transport trades. These
three organisations continued to exist side by side for about fifteen
years, until the two others were absorbed in the Swedish Employers'
Federation.
At the beginning of the twentieth century, therefore, strongly
organised associations of workers and employers stood face to face.
" In spite of strong opposition, the Swedish trade unions have been
able to secure their recognition by the employers as authoritative
bodies in collective agreements " * ; and many collective agreements
which in the 'nineties had been concluded only locally and for separate
undertakings now came to apply to the whole country. The employers
insisted strongly, however, that their freedom to engage and dismiss
workers, whether trade unionists or not, should not be interfered with.
Article 23 of the rules of the Swedish Employers' Federation provided
that on the conclusion of a collective agreement between any member
of the Federation and a workers' organisation, it should be stipulated
that the employer had the right freely to engage and dismiss workers,
to manage and distribute the work, and to employ workers belonging
to any union or not belonging to a union.
1
B. G. D E MONTGOMERY : British and Continental Labour Policy,
p. 96. London, 1922.
328
FREEDOM OF ASSOCIATION
T h i s clause was much objected to by t h e workers \ I n connection w i t h t h e settlement of various industrial disputes in December
1906, however, a n agreement was reached, the so-called " December
compromise ", by which the workers recognised this r i g h t of employers, and the latter recognised the workers' right of association. T h e
particular provisions in question r u n as follows :
Subject to the provisions of this agreement in all other matters, the
employer shall have the right to manage and distribute the work of the
undertaking, freely to engage and dismiss workers, and to employ workers
of any association whatsoever or workers belonging to no association.
The right of association shall remain inviolable on either side.
If a worker considers that a dismissal has taken place in circumstances which may be interpreted as an attack on the right of association
he shall, before any other proceedings are taken, demand through his
organisation an investigation with a view to obtaining rectification.
A s these provisions have been included in most collective agreem e n t s 2 , the recognition of the right of association, and therefore also
of associations, was established, if not statutorily, yet with no less
effect and with the force of law. 'Since then the right of association
has hardly been disputed. F r o m 1912 to 1924 disputes on this point
led t o 30 stoppages of work, forming 0.9 per cent, of the total
3,972 stoppages during this period. I n 1925 there were only 2 cases
out of 239, or 0.8 per cent., and these stoppages affected only 23 workers out of 145,778. A n o t h e r proof of the de facto recognition of the
r i g h t of association is t h a t of the 1,860 disputes referred to t h e State
conciliators in the period 1907-1924, only 18, or 1 per cent., were due
to an alleged violation of the right of association. I n 1925, not one
of the 220 disputes was about the right of association.
T h i s m u t u a l recognition of the trade associations is a landmark
in t h e history of t h e Swedish trade union movement.
I n spite of the provisions of the December compromise, giving
employers the r i g h t to engage and dismiss workers as they chose, the
trade unions tried to include in collective agreements, particularly those
entered i n t o w i t h non-members of the Swedish E m p l o y e r s ' Federation,
a stipulation for t h e sole or a t least preferential employment of trade
unionists, so as to be able to exercise a constant influence over conditions of work. T h e closer organisation of employers gave them greater
1
Cf. OERSTED : " Employers' Organisations in the Northern Countries. " International Labour Review, Vol. VII, No. 3, *pp. 341 et seq.
3
57 per cent, of the collective agreements in force at the beginning
of 1921 contained these clauses.
SWEDEN
329
power to withstand this demand, and hence industrial disputes became
more violent a n d extensive. T h e industrial depression of 1908, which
was followed by unemployment a n d labour unrest, made it easier for
employers to declare widespread lockouts.
I n the summer of 1909 the forces concentrated on the two sides
engaged in a great struggle, a general strike. " I t m a y be considered
the first great battle in Sweden for supremacy between t h e fighting
organisations of capital a n d labour. " x I n spite of t h e greatest
sacrifices, the strike was a failure for the workers, and t h e membership of the Confederation of T r a d e Unions fell from about 170,000 at
the end of 1908 to 85,000 at the end of 1910.
The disputes during the early years of the present century were an
almost continuous succession of victories for the trade unions. But when,
after the political strike in 1902, the employers began to combine and
organise, the tables were gradually turned in their favour ; and when at
last the employers were able to oppose the national trade union organisation with their own national organisation the question arose as to which of
these bodies was the stronger. Naturally, this could not be decided
except by a fight of national dimensions, and it soon became evident that
both bodies were anxious for an opportunity of testing their strength.
This opportunity was afforded by the general strike, the result of which .
was the victory of the General Federation of Employers over the National
Confederation of Trade Unions, or, in other words, the recognition that
organised capital was in the end stronger than organised labour 2 .
T h e State could not remain a passive onlooker in this conflict of
social forces. But its attempts to impose regulations on trade combinations b y revising t h e general law on associations failed. I t was
more successful in the search for means to prevent industrial disputes
or reduce their severity. T h i s question was raised in t h e R i k s d a g
as early as 1887, but it was not until 1906, the year of t h e December
compromise, that a n Act introducing conciliation in labour disputes
was passed 3 . Subsequent attempts on the part of the G o v e r n m e n t
to extend this system failed; in particular, the 1911 Bill for compulsory conciliation met w i t h opposition among both employers a n d
workers. A Bill for the creation of an arbitration court suffered the
same fate. T h e Acts of 28 May 1920 did not seriously alter that of
1906 ; this subject will be dealt with in full in another connection 4 .
1
M O N T G O M E R Y , op.
2
Ibid.,
cit.,
p.
102.
p p . 108-109.
2
Cf. Bulletin of the International
pp. 546 et seq.
4
See pp. 342 et seq.
Labour Office (Basle), 1906, Vol. V,
3¿0
FREEDOM OF ASSOCIATION
The trade unions were soon able to-recover from their decline,
being unaffected by other State action and favourably influenced by
the economic prosperity that set in in 1910. Their progress during
the war years was particularly rapid, and by the end of the war it was
estimated that over 50 per cent, of the workers employed in industry
were organised, as compared with about 25 per cent, in 1914. At
the same time, the trade union movement among salaried employees
was growing, and an impulse had been given to the backward
organisation of agricultural and forestry workers. Finally, it is
likely that, with the close connection between the trade unions and the
Social-Democratic Party, the political successes of the latter were not
without effect on the growing power of the unions.
The economic depression of 1921-1922 and the consequent
unemployment may have held up this development for a time, but
not permanently. In the following years there was already a revival,
and by 1926 the trade unions, with their membership of half a million,
had become stronger than ever. In the meantime the Employers'
Federation had seen to it that the position gained by the general strike
of 1909 was not lost. Whereas in 1903 the Federation included only
101 employers, with, about 29,000 workers, and in 1912 the number
of workers employed by its members was 157,000, by the end of 1921
it had reached a membership of over 3,000 employing about 300,000
workers in all. After that, certain smaller undertakings left the
Federation, but in 1926 about 2,000 undertakings employing approximately 255,000 workers were still affiliated to the central Federation.
POSITION OF EXISTING T R A D E
ASSOCIATIONS
The principal representative of employers is the Swedish Employers' Federation (Svenska arbetsgif.vareföreningen).
It consists of
thirty-five industrial associations and a so-called " General Group ",
made up of firms which for special reasons could not be classified
among the industrial associations. The Federation represents in the
main large-scale industry ; small employers and artisans are either
unorganised or belong to independent associations. The latter include
the organisations of painters, tinsmiths, and tailors, which from 1919
to 1922 temporarily belonged to the Employers' Federation, as also
the two associations of master bakers. There are more important
independent employers' associations in the transport industry, agriculture, and the press. The shipowners' and agricultural employers'
organisations co-operate with the Swedish Employers' Federation in
SWEDEN
SSI
the Swedish Employers' Organisations' Representative Council (De
svenska arbetsgifvareföreningarnas
förtroenderad).
The characteristic feature of the Swedish Employers' Federation
is its marked centralisation. The members of the Federation are
separate associations. Individual employers belonging to the associations are called associate members. Most of the associations have
local branches, which are combined in turn into provincial or district
associations.
For every individual employer, regarded as an associate member
of the Federation, a so-called guarantee amount is calculated in proportion to the number of workers he employs, and this sum is used
for determining his contributions. He must give his bond undertaking to pay a sum corresponding to his guarantee amount, subject to
the proviso that not more than 10 per cent, may be demanded of him
at a time. These bonds constitute a guarantee fund for the Federation,
and the separate bonds also serve as a security that the individual
employers will comply with the rules and decisions of the Federation.
The Federation is administered by three authorities, the General
Meeting, the General Committee, and the Executive.
The General Meeting consists of representatives of the affiliated
organisations, each of which appoints a representative and in addition
one representative for every thousand workers covered by the guarantee to the Federation. The right of voting at the General Meeting
is calculated by the amount guaranteed to the Federation at the rate
of one vote for every 100 kronor guaranteed.
In the General Committee, too, each affiliated organisation has one
representative (and a substitute), and in addition a representative and
a substitute for every 5,000 workers covered by its guarantee to the
Federation.
The Executive consists of the managing director, two deputy
directors, at least seven other members and at least nine substitutes, all
appointed by the General Committee. In addition, each affiliated
trade association whose members are associate members of the Federation for a total of at least 15,000 workers is represented on the
Executive by at least one member and one substitute. The same
applies to the General Group. The Executive is, as its name implies,
the authority directly responsible for the current business of the
Federation, the administration of its property, etc.
It is not only in its structure that the Federation shows so
marked a tendency to centralisation. This is also seen in its activity
under the rules. Transactions with organised labour must be as
S32
FREEDOM OF ASSOCIATION
uniform as possible. . Thus, members may not conclude collective
agreements without the approval of the Federation. The same rule
applies to the declaration of a lockout. The Federation decides on the
payment of compensation in disputes, which gives it considerable
power to influence the actions of individual members. If it is found
that in a strike the employer in question has, without due cause or
in circumstances not demanding such action, taken measures involving
a deterioration of the workers' position, and this has caused or
promoted the strike, and it is found that the employer had refused to
take the steps for obviating or stopping the strike demanded by the
Federation, no compensation is paid. Moreover, the Federation may
claim compensation on the basis of the guarantee bonds from employers
who contravene its rules or decisions.
Within the separate associations, too, the right of negotiation and
of concluding collective agreements is, so far as possible, reserved to
the association itself ; but in this respect the wording of the rules
differs to some extent as between the various associations. In any
case, however, a lockout must be approved by a decision of the
association as well as by the Central Federation. Moreover, an
employer must notify the association of any strike that has broken
out in his firm.
The central organisation of the workers is the Swedish Confederation of Trade Unions (Landsorganisationen i Sverge), comprising
thirty-four national federations and a membership of about 400,000.
As already explained, it is Socialist in tendency. In addition there
are a certain number of organisations with the same aims as the
Confederation of Trade Unions, and therefore related to it, but which
have not affiliated to it for economic or other reasons (amount of
contributions). These include, for instance, the federations of agricultural workers, certain clothing and textile workers (mainly
women), and organisations of public employees (post, telegraph and
telephone workers, railway clerks, customs officials, prison officials,
civil staff in military departments, etc.). The aggregate membership
of these organisations is about 70,000. The unions of persons employed
in State undertakings have combined to form the Central Organisation
of State Employees (Statsjänames Centralorganisation).
There are
also various salaried employees' unions. Most of these bodies have
concluded collective agreements, but they are not all of them to be
regarded as fighting organisations.
333
SWEDEN
All these unions comprise about 475,000 workers.
Reference should also be made to t h e Syndicalist unions, which
are combined in t h e Swedish W o r k e r s ' Central Organisation (Sverges
Arbetares Centralorganisation
= S.A.C.).
T h i s organisation, which
was formed i n 1910 i n connection w i t h t h e general strike, is opposed
to Parliamentary action a n d t h e system of collective agreements ;
its total membership is now said to b e about 35,000 t o 40,000 workers,
mainly employed in building trades a n d forestry work.
Finally, there are a large number of organisations which, although
not fighting organisations in t h e true sense, have various institutions
for t h e benefit of their members, whom they represent in wage a n d
similar questions 1. Certain civil servants' organisations in this
group have formed a central association, t h e Board of Swedish Civil
Servants (Sveriges
Statstjänstemannanämnd),
w h i c h represents 32
associations, w i t h 6,000 members in all 2 .
T h e Swedish Confederation of T r a d e Unions h a s three administrative bodies : t h e Congress, which meets every five years ; a
Representative Body, consisting of sixty members appointed b y t h e
national federations ; a n d t h e National Secretariat
(Landssekretariatet), consisting of seven persons elected b y t h e Congress a n d
responsible for handling current business. I n contrast to t h e Employers' Federation, t h e workers give t h e chief authority n o t so m u c h
to t h e Confederation of T r a d e Unions as t o t h e separate affiliated
federations.
T h e structure of the individual federations is similar t o t h a t of the
Confederation. T h e supreme authority is t h e Congress, which meets
as a rule every three or five years. I n t h e intervals decisions o n
current business are taken b y t h e executive committees of t h e federations.
T h e various federations a r e based either on t h e craft or on t h e
industrial union principle. T h e question of c h a n g i n g t h e craft unions
into industrial unions has been before the .Swedish trade union movem e n t since 1909. T h e r e is a strong tendency to form industrial
1
For the organisation of " Intellectual Workers ", see INTERNATIONAL
LABOUR O F F I C E : International
Labour
Directory,
Part IV, 1925, pp. 64
et seq.
2
Taken altogether, about 60 per cent, of the workers in industry are
organised. In agriculture and commerce, on the contrary, the number
of organised workers is comparatively small. The proportion varies also
from one industry to another. Thus, in shipping about 75 per cent, of
the workers are organised, in the tobacco industry close on 90 per cent.,
in the paper industry about 70 per cent.
FREEDOM OF ASSOCIATION
334
organisations, but it has to contend with a certain amount of opposition. The " cartels " formed by certain craft unions for purposes of
joint action may be considered a transition measure.
The federations are built up on local trade unions (fackföreninger), several of which have set up so-called workshop clubs for particular undertakings. The local branches of different federations as
a rule also combine to form local organisations.
Particularly in their decisions on labour disputes, the federations
are fairly independent of the central organisation. All attempts to
give the Confederation of Trade Unions greater powers of decision
have so far failed. At the same time the federations have sole power
over the local union3 as regards the conduct of disputes.
There are no uniform rules to be followed by-the federations in
negotiating with employers and conducting their disputes. • This, too,
is contrary to the system of the employers' organisation, which, as
already explained, aims at the greatest possible centralisation.
§ 2. — Legal Status of Trade Associations
It has already been stated that in Sweden there is no special
legislation on association for trade purposes. Trade combinations
are subject to the general law on association. Even this is only to
some extent dealt with by statute law. A distinction is usually drawn
between " economic " and " ideal " associations. The former are
associations which either aim at promoting the economic interests of
their members by procuring for them food supplies or other necessities,
disposing of the products of their industry, providing them with
loans, etc., or engage in a trade or business making it compulsory
to keep accounts, regardless of whether they also aim at promoting
other than the economic interests of their members. All other associations are considered to be ideal associations. As trade combinations
do not satisfy the requirements for economic associations, they are
deemed to .be ideal associations.
In 1895 an Act was passed on economic associations, but no
legislative action was taken with regard to ideal associations, whether
in the field of civil or of public law. But this does not mean that
they are outside the law. On the contrary, it has been recognised by
the courts that an association with rules and an organisation of a
certain degree of completeness has legal personality 1 . The ideal
1
Cf., for instance, the Supreme Court's decision of 28 Nov. 1907.
SWEDEN
335
association may therefore acquire rights and assume obligations, sue
and be sued in the courts, etc. In particular, two decisions of the
Supreme Court (Högsta Domsiolen) of 22 May 1915 established that
in civil law trade associations have full rights and obligations under
collective agreements, and that therefore they also have the right to
sue or be sued in court.
It should be pointed out, however, that this has not always been
the undisputed position ; and, in order that the uncertainty as to
the legal status of ideal associations might be removed, several
attempts were made to deal with this question by legislation, and in
particular to make their legal capacity depend on previous registration. These attempts failed chiefly owing to the opposition of the
trade unions, which considered such regulation both inexpedient and
unnecessary. Finally, in view of the fact that the courts in practice
always recognised the legal capacity of ideal associations, it was felt
that legislation would be superfluous. For this reason the Bills on
collective agreements and labour courts prepared by a Government
Commission in January 1927 contained no provision for the conditions
under which an organisation is to be deemed to have legal personality.
The explanatory memorandum to the Bills merely refers to the regulations usually applied to ideal associations, and points out that there
has been no hesitation in judicial practice to admit that such associations have legal capacity, provided that they have adopted rules of
a certain degree of completeness.
In the absence of legislation the relations between an association
and its members are governed solely by the rules of the association.
These lay down the conditions concerning joining and leaving the
association, penalties, the exclusion of members, etc. There is no
restriction on the enforcement of these conditions through a court
of law, although in practice this may not have much importance.
§ 3. — The Activities of Trade Associations
INTERNAL ACTIVITIES AND CO-OPERATION W I T H
T H E PUBLIC AUTHORITIES
The greater part of the activities of trade associations on behalf
of their members is free from regulation, being conducted in accordance with the rules of the association. About twenty of the more
important trade unions have for long engaged in unemployment
insurance, in the absence of a State system. This work is usually
336
FREEDOM OF ASSOCIATION
carried out by separate unemployment funds in the associations which
are, however, intimately connected with the association as regards
both organisation and finance. Thus, no separate contributions are
collected for these funds, but a certain sum is set apart for them out
of the ordinary contributions to the associations. Membership of the
trade union thus automatically entails membership of the unemployment fund.
Formerly many of the unions paid their members sickness and
funeral benefit, but with the growth of the system of voluntary sickness funds, and the grant of State subsidies to these, they have ceased
to undertake this work. Of the associations affiliated to the Swedish
Confederation of Trade Unions, only three now grant sickness benefit.
Funeral benefit, on the contrary, is paid by about ten trade unions,
and the Typographers' Federation also gives its members disablement
benefit. In that Federation, and in the lithographers' Federation,
members with families who have to move to another district in order
to earn their living are assisted with their removal expenses.
Similar institutions among employers' associations are as rare as
in other countries .
As regards the co-operation of trade associations with the State,
the fact that the State has not enacted legislation concerning such
associations has not prevented it in practice, however, from making
use of the association when creating institutions affecting the activities
of the associations.
Thus, employers' and workers' associations share in State social
administration. They have their representatives on the Social Council, a body indirectly attached to the Social Board. Two permanent
representatives of employers' and workers' organisations further keep
the higher social authorities in constant touch with the competent
organisations.
In the State institutions created for special social purposes the
trade associations are also represented. Thus, according to section 2 of
the 1917 Act on the Social Insurance Council, two members must be
employers and two workers, being appointed by the Government
on the nomination respectively of associations of employers with a
membership of not less than 100, and associations of workers with a
membership ot not less than 10,000 1 •
Similar regulations apply to the labour Council set up in 1919
1
For participation in the Central Arbitration Court, see p. 343.
SWEDEN
337
under t h e Act on t h e limitation of hours of work l . T h i s Council
consists of seven members, of whom two are appointed on t h e nomination of t h e national associations of employers whose members employ
in t h e aggregate not less than 50,000 workers, and two on t h e nomination of national associations of workers comprising n o t less t h a n
50,000 members. T h e principal function of t h e Labour Council is to
g r a n t exceptions to t h e principle of t h e eight-hour day or fortyeight-hour week allowed under t h e Act. T h e Council decides by
majority vote if a t least five members are present. If there are only
four members present, their decision must be unanimous.
T h e governing bodies of t h e State-subsidised provincial a n d comm u n a l employment exchanges also include representatives of t r a d e
associations as well as the State Unemployment Commission 2 . I t
is obvious that t h e associations also have representatives on t h e
P e r m a n e n t Delegation for Swedish Collaboration in International
Social Politics, a Committee created in 1920, dissolved i n 1922 for
financial reasons, and recently re-established 3 .
A s i n most countries, t h e trade associations i n Sweden, too, a r e
consulted before important Bills are submitted to t h e Riksdag, their
opinions being appended to t h e draft Bill. I n addition, they are often
given an opportunity of stating their views before t h e introduction
of important administrative measures — for instance, t h e immigration
regulations introduced by t h e Social Board — and also on t h e occasion
of negotiations for commercial treaties.
I t is proposed t o extend this participation in t h e field of State
activities, a n d various Bills provide for further co-operation with t r a d e
associations in other respects.
SHARE
IN DETERMINATION
CONDITIONS
Collective
AND E N F O R C E M E N T
OF
OF W O R K
Agreements
T h e historical survey h a s already brought out t h e importance
acquired by collective agreements i n Sweden at a n early date. T h e
1
Cf. Act of 4 June 1926, in force since 1 Jan. 1927. INTERNATIONAL
LABOUR O F F I C E :
Legislative
Series,
1926, Swe. 3.
2
For political reasons the representatives of the Confederation of
Trade Unions left the Commission in 1926.
s
Cf. INTERNATIONAL LABOUR O F F I C E : Industrial
and Labour
Infor-
mation, Vol. XXIV, No. 3, p . 68.
Freedom of Association
22
338
FREEDOM OF ASSOCIATION
official statistics of collective agreements give a faithful picture of the
development of trade associations. At the beginning of 1908 the
number of agreements in force was 1,971, affecting 11,241 employers
and 255,950 workers. The number of workers covered by collective
agreements rose in 1909 to 318,190, but afterwards fell rapidly (general
Strike) to about 225,000 in 1913. During the war a rise again set in,
culminating at the beginning of 1921 with 2,278 collective agreements
for 437,587 workers. The subsequent period of depression led to a
temporary setback, but this was overcome, and by 31 December 1925
there were 2,455 collective agreements in force for 13,610 employers
and 451,592 workers.
In the absence of legislative interference with trade associations,
the part played by collective agreements is of great importance. It
Has already been shown that the formal recognition of the right of
association was the result precisely of a collective agreement, the
December compromise of 1906, and that the provisions of this agreement are included in most collective agreements. In spite of this
freedom of development, it long remained uncertain how collective
agreements were to be treated from the judicial standpoint, and even
now there is no special legislation on this point.
The general reason for this uncertainty is that the status of a
trade association, i.e. an ideal association, as a party to a contract,
was not subject to legislation. In Swedish law the agreements between
two or more economic associations are legally binding, but the question
what the position would be if an economic association, for instance
a joint stock company, entered into an agreement with a trade union
(which is not an economic association) remained unanswered for a
long time. As all contracts are concluded on a mutual basis, it is
clear that the company cannot be made responsible at law for the
execution of the contract if this does not hold for the trade union.
Both parties must be treated in the same way. Either they must
both be able to claim damages for breach of contract, or else neither
of them should have this right \
The position has now been made clear by the practice of the
courts.. In the two decisions of 22 May 1915 mentioned above, the
Supreme Court laid down that a trade union has full responsibility
for the execution of a collective agreement concluded with a joint
1
Cf. MONTGOMERY, op. cit., p. 294. See also Osten UNDEN : Kollektiv avtalet enligt gâllande svensk rätt (Lund, 1912), quoted by Montgomery.
SWEDEN
339
stock company 1 . That in actual fact the union in one of the two
cases was sentenced to pay damages, but not in the other, was due to
special reasons which will be discussed later. This practice of the
courts was confirmed by legislation. From section io of the Act of
28 May 1920, on conciliation in labour disputes 2 , it follows that the
force at law of agreements concluded by the parties at issue in consequence of statutory conciliation proceedings, and therefore also in
the first place collective agreements, must be subject to the general
law. This appears to remove all doubt as to the capacity of trade
associations to conclude agreements, and to recognise the binding
force at law of collective agreements.
All the points of detail have not yet been settled, however, and
many of them Have not even come before the courts for decision. Thus
it was for long open to question whether the State could conclude
collective agreements with those of its employees who are not in the
position of civil servants. There is probably no question to-day of the
capacity of organisations of State employees to conclude agreements,
but not every department is prepared to recognise the expediency of
concluding such agreements. Collective agreements are in force in
the telegraph and telephone service, the State railways, and the State
water-power works.
Clauses concerning the exclusive or preferential employment of
organised workers were; formerly.of someimportance, as was explained
above, but had to be dropped owing to the opposition of organised
employers when the provisions of the December compromise already
mentioned were adopted. Nevertheless, clauses of this type are to be
found in some collective agreements concluded with employers' associations not affiliated to the Swedish Employers' Federation 3. This
is the case, for instance, in the collective agreement concluded in the
bakery industry with the Swedish Master Bakers' Association, an
agreement which has thereby acquired some notoriety. The validity
of such a provision has evidently never been disputed.
A breach of a collective agreement due to the use of militant action,
for instance, 'a strike or lockout, entails an obligation to pay damages.
On the other hand, it should be remembered that not every strike is
considered a breach of the agreement. In one of the afore-mentioned
1
See p. 334.
See p. 343.
3
At the beginning of 1921 there were said to be clauses of this type
in 163 collective agreements affecting 7,468 workers.
2
FREEDOM OF ASSOCIATION
34°
decisions of 22 May 1915, the claim for damages was rejected on the
ground that a sympathetic strike cannot involve a breach of a collective agreement . Thus in Swedish judicial practice it is recognised that
a collective agreement establishes only a relative, and not an absolute,
obligation to refrain from stoppages of work.
Although many of the questions of contract law connected with
the right of association are still obscure, the widespread use of collective agreements and the important part they play show that in fact
the system is thoroughly accepted by the population, perhaps just on
account of the absence of legal regulations, and that thereby the trade
associations have acquired a substantial influence on the determination
of conditions of work. Quite recently the Government has taken
steps to enact legislation on collective agreements in connection with
the organisation of a system of labour courts. At the beginning of
1927 reports on these two subjects were drafted by a committee of
experts. These were submitted to the authorities and the organisations of employers and workers for their opinion. The employers
showed themselves in general in favour of the measure ; the workers
on the contrary were opposed. At the beginning of 1928, the Government introduced Bills embodying the committee's drafts with certain
minor alterations x.
According to the Act on collective agreements, a collective agreement is one concerning the regulation of conditions of work and other
relations between employers and workers, concluded between an
employer or an association of employers on the one hand and a trade
union or similar organisation of the workers on the other, or between
federations of associations. A collective agreement in this sense is
binding not only on the parties to it, but also on each of their
members. An individual contract of employment which is contrary
to the provisions of the collective agreement is null and void.
During the period of validity of a collective agreement no
employer or worker bound by it may have recourse to militant action
on account of a dispute as to the validity, existence, or interpretation
of the agreement, or of a similar nature, or to procure an amendment
of the agreement or introduce regulations to come into force after the
expiration of the agreement. This provision applies to sympathetic
strikes and lockouts, in so far as these are declared in support of
measures which are unlawful under the Act. If an organisation is
1
Passed on 25 May 1928.
SWEDEN
34I
bound by a collective agreement it may not organise, support, or
otherwise bring about militant action which is prohibited for its
members, and it must try to restrain its members from taking such
action or, should such action already have been taken, to put a stop
to it.
If an employer, worker, or organisation of employers or workers
bound by a collective agreement commits a breach of the agreement
or the Act, and if this action affects the relation between the parties
as a whole, the injured party may claim the cancellation of the agreement by the Labour Court. In cases of contravention, the offending
party may be required to pay damages to the injured worker, employer,
or association. The amount of the damages will depend on the extent
of the injury, the injured party's interest in the observance of the
agreement, the guilt of the offending party, and other circumstances
connected with the dispute. In certain cases no damages may be
awarded.
The second Act provides for the creation of a Labour Court, to
consist of experienced judges and members representing employers
and workers. The function of the Court is to deal with disputes
arising out of existing collective agreements and no appeal is allowed
against its decisions.
Trade Unions and Managerial Control
During the war and the years immediately after, in Sweden as in
many other countries, the workers expressed a desire to be given
greater direct influence on the undertakings Sy a system of representation, their idea being that " industrial absolutism " • should
be replaced by " industrial democracy " \
The Social-Democratic Party included the setting up of works councils in its
programme, and in 1920 the Government (then Social-Democratic)
appointed a committee to enquire into the question, which submitted
its report on 31 March 1923, together with a draft Bill on works
councils. A characteristic feature of this draft was the provision
for close co-operation between the trade unions and the proposed works
councils, as also for preventing the works councils from taking over
the functions of the unions. According to the draft only trade
unionists would be entitled to election to the works council ; and
1
Cf. Dr. Ernst WIGFORSS : " Industrial Democracy in Sweden. "
International Labour Review', Vol. IX, No. 5, May 1924.
342
FREEDOM OF ASSOCIATION
unless requested by the trade union a works council would not have
the right to take steps in case of unfair dismissals (considered as an
attack on the right of association). E v e n so, its .rights would be
very limited.
T h e draft Bill was strongly opposed b y employers, b u t approved
by trade unions, not least because it provided for such close relations
between works councils and trade unions. N o Act was passed,
however, and by degrees the whole question was relegated to the
background. I t may be added, however, that " industrial democracy "
was introduced by collective agreement in 1925 for the organisation
formed b y the workers' printing presses \ Similarly the G o t h e n b u r g
Municipal Council decided to set u p works councils in the municipal
undertakings on the lines proposed in the draft Bill.
I n this connection reference m a y also be made to the so-called
" register " system, which the Syndicalist unions consider the best
means of obtaining improved conditions of work a n d control of the
undertakings. T h e rules of the Swedish Central W o r k e r s ' Organisation on this point run as follows :
As a permanent fighting organ intended partly to improve conditions
of work, and partly to obtain increased control over the undertakings
which will largely obviate the need for open disputes, register committees
should be appointed. Their duty shall be to compile wage statistics, take
over the distribution of the work, fix wages and prices, and, finally,
prepare themselves to be the organs by means of which the workers
themselves will take over the management of production and exchange.
Some of the federations affiliated to"the Swedish Confederation of
T r a d e Unions have adopted this system d u r i n g t h e last few years.
Trade Associations
and
Conciliation
T h e undisturbed development of trade associations and the wide
adoption of collective agreements naturally led to a search for the
means of obviating disputes between the associations, or a t least of
limiting their e x t e n t .
Collective agreements themselves usually contain provisions on
the settlement of disputes arising out of the interpretation of the
agreement. Several provide for arbitration procedure. Under m a n y
1
Cf. Industrial
and Labour Information,
Vol. XVIII, No. 9.
SWEDEN
343
collective agreements disputes on rights in t h e narrow sense (rättstvister), arising out of existing agreements, are settled by arbitration 1 .
T h e position is different w i t h regard to disputes arising out of
the conclusion of new agreements, the so-called disputes on interests
(interessetvister).
T h e settlement of these under collective agreements is comparatively rare. On the private railways, for instance,
regulations were in force from 1909 to 1918 m a k i n g arbitration
compulsory in all disputes. Similar regulations were in force for
municipal u n d e r t a k i n g s in Stockholm, G o t h e n b u r g and Malmö from
1919 to 1923, but since t h e n compulsory arbitration has been replaced
by optional arbitration.
A s already mentioned 2 , this question of creating a system of
conciliation to prevent stoppages of work and settle all k i n d s of
disputes came up before the legislature as early as 1906, and led to
the three Acts of 28 May 1920 3 . But this législation, which provides
for the appointment of conciliators to prevent a n d settle disputes and
for the organisation of arbitration, can hardly be said to have directly
affected the legal status of trade associations.
T h e associations are not entitled by law to appoint conciliators,
but they are represented on the Central Arbitration Board, which
settles questions on t h e proper interpretation or application of collective agreements whenever such questions are referred to it in accordance with the provisions of agreements or in consequence of a special
agreement (Act of 28 May 1920 concerning the Central Arbitration
Board, section 2 ) . Of the seven members of the board, four are
elected b y the trade associations, namely, two b y the Swedish
Employers' Organisations' Representative Council a n d t w o by the
Swedish Confederation of T r a d e Unions (section 5 ) . Decisions m u s t
be taken by at least five members, a n d an equal number of representatives of employers a n d workers m u s t be present (section 8 ) .
T h e fundamental feature of this legislation is that it makes n o
provision for compulsion, but is based on the voluntary co-operation
of employers and workers. Under the Act the conciliator may s u m m o n
the parties to a dispute to open or continue negotiations, b u t n o
penalty for failure or refusal to comply is imposed. I n other respects
1
For instance, in the engineering, building, newspaper industries,
agriculture, etc.
2
See p . 32g.
* (a) Concerning conciliation in labour disputes ; (6) Concerning a
Central Arbitration Board for certain disputes ; (c) Concerning special
arbitrators in labour disputes. Cf. Legislative Series, 1920, Swe. 6-8.
344
FREEDOM OF ASSOCIATION
the powers of the conciliators are very limited. They can make
suggestions, but the actual decision lies always with the parties.
Where the Act provides for arbitration, such proceedings cannot be
binding without the previous consent of the parties.
TRADE DISPUTES
It was explained in the historical survey that for agricultural
workers the last strike restrictions, based on old legislation, were
altogether removed after the war. Strikes of industrial workers were
never forbidden. As for the right of association, so also for the right
to strike, lockout, etc., therefore, there is no express recognition, but
nevertheless the right is widely admitted. But it- can be exercised
only within certain legal limits which are defined by civil or by
public law. Even here, however, the limits are not usually very
narrow. It has already been shown that sympathetic strikes and
political strikes are as little forbidden as ordinary strikes. Nor has
the introduction of a system of conciliation meant any serious limitation on the freedom of trade associations to engage in militant action.
In practice, the most important restriction on the use of such action
contained in civil law lies in the law with regard to collective agreements. The breach of a collective agreement by a strike or lockout
entails an obligation to pay full damages for the consequent injury..
Where, however, militant action is not aimed at enforcing a change
in the conditions of work governed by a collective agreement, for
instance in the case of a sympathetic strike or a political strike, the
collective agreement is not broken and therefore there is no obligation
to pay damages.
Trade associations are equally free as to the choice of weapon
used. Though strikes and lockouts are the most frequent, boycotts,
blacklists, and blockades are also allowed, and so far as is known,
there is no case in which the recourse to such measures has led to
legal penalties on the ground that they are unlawful actions or for
other similar reasons.
The most effective limitation of the right to strike is to be
found in certain provisions of the Penal Code. These are perhaps of
little practical importance at present, but they are at least the only
statutory provisions consciously directed against combinations.
In 1899 the Riksdag passed an Act on the motion of a member
of the Agrarian Party from Akarp, which is now known as the
SWEDEN
345
" A k a r p Act ", and amended Chapter X V , section 22, of t h e general
Penal Code. I t provided that a n y attempt by violence or threat to
force another person to take part in a strike or to prevent h i m from
r e t u r n i n g to work or accepting work offered to him was punishable
by penal servitude of up to two years. T h i s far-reaching regulation,
which was directed against even an attempt at the action in question,
made no distinction between the different kinds of threats and imposed
a disproportionately heavy penalty, was likely to make picketing
generally liable to punishment and therefore impossible. T h e trade
unions were consequently strongly opposed to this Act, and on several
occasions the Social-Democratic P a r t y proposed in the Riksdag that
it should be repealed. I n other quarters, too, the Act was m u c h
criticised, and the Liberal Party leader, Staaff, declared t h a t it was
class law and legislation for the exception. W h i l e the Liberals were
in power the Act was not repealed, b u t by a n Act of 4 September i g i 4
the penalties were reduced, a fine or imprisonment being substituted
for penal servitude unless in special cases the illegal action warranted
a heavier penalty.
According to section 24, public proceedings
cannot be taken until the aggrieved person himself takes action. If,
however, he has actually been forced to take part in a strike or to
refuse to return to work or accept work, he need not take action
himself. I n their present form sections 22, 23 and 24 of Chapter X V
of the Penal Code r u n as follows :
Section 22. -— Any person who without lawful authority or by abusing
his rights, forces another person by violence or threat to do, tolerate, or
refrain from doing something, shall be liable to punishment of not more
than two years' penal servitude, unless his action specially entails a
heavier penalty.
Any attempt in the aforesaid manner to compel someone to take part
in a stoppage of work or prevent someone from returning to work or
accepting work offered shall be punished by a fine or imprisonment in
those cases where such action does not specially entail a heavier penalty.
Section 23 1. — Any person who by word of mouth or in writing
threatens another with ill-treatment or an unlawful action in such a
manner and in such circumstances that there is reason to fear that the
threat will take effect shall be sentenced to a fine or imprisonment of
not more than six months, unless the threat entails a special penalty.
Section 24. — Proceedings in respect of an offence specified in section 22, subsection 1, shall be instituted by the Public Prosecutor only at
the instance of the injured party or if the offence has compelled a person
to take part in a stoppage of work or prevented him from returning to
work or accepting work offered ; similarly, proceedings in respect of
offences specified in section 23 shall be instituted only at the instance of
the injured party.
1
Section 23 does not directly refer to stoppages of work, but is given
for the sake of completeness.
346
FREEDOM OF ASSOCIATION
The law as it at present stands by no means satisfies the workers,
and in 1925 a motion was again introduced in the Riksdag to repeal
these special penal regulations. This motion was not passed, but the
Government was asked to examine the question and put forward a
proposal for abolishing the class aspects of the Act.
CONCLUSION
If the development of the right of association and its present
state in Sweden is considered as a whole, and at the same time
compared with the position in the two other Scandinavian countries
— Denmark and Norway — it will be found ' that there are thre^
outstanding features.
Trade associations were in general free to develop without any
hampering or encouraging intervention on the part of the-legislature,
and to create their system of organisation independently at their own
discretion.
This freedom of development meant that the relations between
trade associations, and particularly those of employers and workers,
were governed as a rule not by State intervention, but directly by way
of agreement (1899 September agreement in Denmark ; 1900 December compromise in Sweden).
Finally, legislation was limited, as a rule not without some action
by the associations, to laying down rules concerning stoppages of
work. But the scope of this legislation is not the same in the three
countries. Whereas in Sweden it has been considered sufficient to
create a system of conciliation, in Denmark and Norway a special
Arbitration Court is set up for " disputes on rights ". Norway has
in fact gone further, contrary to the wishes of the associations, and
has at times imposed compulsory arbitration for disputes on interests,
that is to say, those concerning the conclusion of new collective agreements, making stoppages of work subject to penalty. In spite of these
differences, it is a noteworthy fact that legislation ¿n this field in the
three countries is on the whole limited, the main purpose being to
maintain social peace and only to settle disputes if this cannot be
achieved. It is also characteristic that it was at a comparatively early
- date, fit the beginning of this century-, that the legislatures took action
of this kind.
In these concluding remarks it is not possible to discuss in their
detail the causes of this similarity of development. Reference may
however be made to a circumstance that has undoubtedly contributed
348
FREEDOM OF ASSOCIATION
very m u c h to this similarity, namely, co-operation between t h e
Scandinavian trade associations 1.
A Scandinavian trade union congress was held at G o t h e n b u r g as
early as 1886. I t is noteworthy that the congress n o t only adopted
Socialist principles, b u t also demanded a m o n g other t h i n g s t h e extension of t h e right of association, the creation of unemployment a n d
sickness funds, and strict centralisation of the trade union movement.
T h i s last point was subsequently emphasised again a n d again, and
discussion turned particularly on the question whether a single Scandinavian organisation should be created. A t t h e Stockholm congress
held in 1897, it was decided that each of the three countries should
set u p a central organisation, a n d that these three bodies should pursue
a uniform policy. T h e 1907 congress approved of compulsory arbitration in disputes concerning t h e interpretation of collective agreem e n t s , demanded State subsidies for t h e trade union unemployment
funds, etc. All these demands have to some e x t e n t been satisfied in
the three States, a n d in any case have not been without influence on
the development of the law.
I n 1920 t h e dissensions between the Socialist and Communist
tendencies led to a suspension of this collaboration between t h e central
organisations ; b u t this h a s not prevented t h e conclusion of mutual
agreements between t h e separate unions of the three States for settling
questions of the transfer of members a n d granting financial aid in
strikes a n d lockouts. T h u s in 1926 some twenty out of the total
thirty-four unions affiliated to t h e Swedish Confederation of T r a d e
Unions h a d concluded such m u t u a l agreements w i t h t h e corresponding
unions in N o r w a y a n d Denmark, a n d in some cases extended them
to unions in F i n l a n d and Iceland. A t t e m p t s have recently been made
to re-establish t h e connection which broke up in 1920, and at a
conference held at Stockholm in 1926 it was decided to form a
Scandinavian T r a d e Union Committee, which in certain cases would
collaborate with a corresponding Baltic committee 2 .
Like t h e trade unions, so, too, the employers' organisations in t h e
three Scandinavian States, subsequently joined by F i n l a n d , worked
for closer collaboration. H e r e , however, t h e course of development
seems to have been t h e reverse of t h a t a m o n g t h e workers 3 . A t
1
Cf. MONTGOMERY, op. cit.,
pp. 141 et seq.
2
The Finnish Confederation of Trade Unions would have the right
to affiliate to whichever of the two committees it preferred.
3
Cf. O E R S T E D , loc. cit.,
p. 365. -
SWEDEN
349
first (1907) the separate organisations confined themselves to a mutual
exchange of information on the matters concerning them in their
respective countries, for which purpose representatives of the central
organisations held regular meetings. Towards the end of 1921 a joint
secretariat was set up at Brussels, with a view to closer and permanent
co-operation between the organisations. This body also facilitates
relations with the International Organisation of Industrial Employers.
These last developments show that the co-operation between
trade associations is stretching beyond the frontiers of the three Scandinavian countries in the attempt to include the neighbouring Baltic
States. The future will show how close such co-operation can
become, and whether it will be as fruitful in the wider field as it
has been in the past. In any case there already seems to be a tendency
to divide up the international field into provinces in which, under
the pressure of mutual influence, the law develops on similar lines,
and its principles are expressed in the same, or at least in similar,
forms.
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Social Handbok.
Utgiven av Centralförbundet för socialt arbete
(C.S.A.). Article " Svenska arbetsgivareföreningen ", by A. BRUNIUS ;
" Fackförenihgsrörelsen ", by S. HANSSON ; " Arbetsavtal och kollektivavtal " and " Arbetsinställelser, medling och skiljedom i arbetstvister ",
by O. EKBLOM.
Stockholm, 1925.
STAEFF, Karl. Församlingsrätten.
holm, 1891.
Verdandis Smâskrifter 29. Stock-
Svenska Arbetsgivareföfeningens
för ären 1Ç20-1Q25. Stockholm.
styrelse-
och
revisionsberättelser
UNDÉN, Ö . Kollektiv avtalet enligt gällande svensk rätt.
Lund, 1912.
*
Förliknings-
och sküjenämndskommittens
betänkande.
Stockholm,
1901.
Förslag tili lag om vissa arbetsavtal,
mitterade.
Stockholm, 1901.
avgivet av därtill utsedda
kom-
Förslag tili lagar om registrerade föreningar för annan an ekonomisk
verksamhet och.om offentligen erkända stiftelser m.m., avgivet av därtill
utsedda kommitterade. - - - •K. KOMMERSKOLLEGIUM. Arbetsinställelser
under aren 1Q03-1Ç07
jämte översikt av arbetsinställelser under aren 185Q-1Q02 samt den s. 'k.
politiska storstrejken 1Q02. Stockholm, 1909.
Arbetsinställelser
i Sverige.
Arg. 1908-1911.
-rKollektivavtal angäende arbets- och löneförhällanden
(är 1Q07-1Ç08). Del I-III.
Redogörelser
för lockouterna
och storstrejken
i Sverige
i Sverige
IÇOQ.
Del I-III.
Statens
förlikningsmäns
verksamhet,
arsberättelser
för
ären
1Ç07-IQH.
Kungl. Maj:ts prop. n:r 84/1906 med förslag tili lag angäende
i arbetstvister ävensom n:r 83/1910 och 35/1911 med förslag tili
ideella föreningar samt n:r 96/1910 och 43/1911 med förslag tili
kollektivavtal m. m. jämte i anledning därav väckta motioner och
utskottsutlâtanden samt riksdagsskrivelser. Stockholm, 1906.
medling
lag om
lag om
avgivna
Kungl. Majds prop. n:r 155 tili 1920 ârs riksdag med förslag tili lag
om medling i arbetsvister, lag om central skiljenämnd för vissa arbetstvister och lag om särskilda skiljedomare i arbetsvister samt däröver
FREEDOM OF ASSOCIATION
352
avgivet
utskottsbetänkande
och riksdagsskrivelse.
(Cf. INTERNATIONAL LABOUR O F F I C E : Legislative
Stockholm, 1920.
Series 1920, Swe. 6-8).
Législation ouvrière et prévoyance sociale en Suède. Bref résumé
publié par ordre du Gouvernement suédois à l'occasion de la VIII e session
du Conseil d'administration du Bureau international, du Travail à Stockholm en juillet 1921.
Motioner vid 1Ç21 ârs riksdag angâende lagstiftning tili förebyggande
av samhällsfarliga arbetsinställelser m. m., n:r 5, 73, 131 och 132 mom
första kammaren och- 53, 121, 204 och 206 inom andrà kammaren, samt i
anledning därav avgivet utskottsutlätande och avlämnad riksdagsskrivelse.
K. SOCIALSTYREIVSEN.
Statens
Arbetsinställelser
förlikningsmäns
i Sverige.
verksameet,
Arg. 1912-1922.
ärsberättelser
för aren,
IÇI2-IÇ22.
Arbetsinställelser
berättelser 1923-1925.
och kollektivavtal
De ideella föreningarna i Sverige
hállanden ár 1917. Stockholm, 1920.
Kollektivavtal
Stockholm, 1922.
i Sverige
samt
förlikningsmännens
och deras ekonomiska
vid ársskiftet
för-
1Ç20-1Ç21. Del I-II.
översikt av statens förlikningsmäns
verksamhet under ären
IÇ07-1Ç14 jämte redogörelse för utländsk lagstiftning angâende melding
och skiljedom i arbetstvister.. Stockholm, 1916.
Statens
förlikningsmäns
verksamhet,
ärsberättelser
för aren
IÇI2-1Ç22.
Eetänkande met förslag tili lag angâende förhandling
staten och dess tjänstemän. Stockholm, 1921.
mellan
Underdânigt utlâtande med förslag tili lag om vissa
tili främjande av arbctsfred. Stockholm, 1916.
atgärder
SOCIALDEPARTEMENTET : Utkast HU lagar om kollektivavtal
om arbetsdomstolar, utarbetat inom Socialdepartementet
av särskilt
kallade sakkunniga.
Stockholm, 1927.
•. Utredningar
utredninger. 1927 : 4
tili belysande
Den industriell demokratiens
1923 : 20. Stockholm, 1923.
av arbetsfredsfrâgen.
och
till-
Statens off.
problem. Statens off. utredningar
FINLAND
INTRODUCTION
The political and economic development of Finland can only be
understood in the light of the history of the countries of Northern
Europe ; its social life, like the laws regulating it, is essentially
Western ; and trade union doctrines and methods have been adopted
from Scandinavia and Central Europe. On the other hand, however,
conditions in Finland have been influenced to some extent by the
proximity of the East. The natural development of her legal and
social institutions was shackled for over a century by the domination
of Russia, while Russian revolutionary movements have had an effect
on the expansion of trade union organisation.
Finnish law, like the Swedish legislation on which it is based,
does not refer specifically to the freedom of association of trade
unions. The various civil rights :— freedom of speech, assembly and
association — are guaranteed by general law ; and the workers as
well as trade unions have always enjoyed these rights on an equal
footing with other citizens and associations.
Nevertheless, a certain amount of difficulty has arisen in Finland
around this question. In the first place, the Finnish authorities,
being under the control of the Russian Government, imposed during
a lengthy period a number of restrictions on civil liberty in general
and on the liberty of the workers in particular, these restrictions
being developed in parallel fashion with the political oppression of
Finland. A somewhat similar situation has arisen in independent
Finland, where the spread of Russian revolutionary theories of a
Communist nature has rendered certain aspects of the question of freedom of association very difficult to handle. In the second place, the
free exercise of the right of association was restricted, so far as the
workers were concerned, by the old Swedish laws on contracts of
employment, and the corresponding Finnish legislation has maintained
Freedom of Association
23
354
FREEDOM OF ASSOCIATION
these restrictions up to the present day. Influenced by the modern
social legislation of Western Europe, however, the authorities have
not only abolished the majority of these restrictions, but have even
invested the trade unions with a certain number of new prerogatives.
In view of the various aspects of the question, it is pointed out
that the term " freedom of association " is used here to denote the
right of assembly and association as applied to workers, individual
employers, and trade associations
CHAPTER I
GROWTH OF FREEDOM OF ASSOCIATION AND
OF THE INDUSTRIAL ASSOCIATIONS
§ 1. — Limitations of Freedom of Association
When, after the conquest of Finland, the Emperor of Russia
made his speech from the throne to the Finnish Diet in 1809, he
promised " to recognise the religion and constitutional laws of the
country, and to maintain them in all their vigour ". Swedish law,
as applied in Finland for seven hundred years, was thus maintained
in the new autonomous Grand Duchy, and subsequently served as
the basis of Finnish law.
At the beginning of the nineteenth century, the legal status of
industrial associations was regulated by the right of assembly and
association on the one hand, and by the legislation on conditions of
labour in agriculture and industry on the other hand.
Although the right of assembly and association had been
guaranteed from time immemorial by Swedish law and custom, no
actual mention of this privilege was made in legislative texts. During
the nineteenth century the Government decided that it was competent
to regulate the right of assembly and association " in the interests
of public order and safety ".
Freedom of association was then subjected to a number of
administrative restrictions. The first important measure was that of
1848, which required all associations, including those which had been
formed before that date, to obtain Government recognition of their
rules and regulations. This Order remained in operation during the
whole of the nineteenth century ; the only changes that took place
being in regard to procedure. The Order of 1848 stated explicitly that
the rules and regulations of the associations were to be approved by
the Emperor himself. An Order issued in 1883 entitled the Finnish
356
FREEDOM OF ASSOCIATION
Senate 1 to deal with all questions regarding associations, while that
of 1897 further facilitated the methods of application by allowing the
provincial governors to approve the constitution and rules of provincial
and local associations. T h e right of assembly, again, was implied in
the Penal Code of 1889 2 , but the exercise of this right was defined
for the first time in Regulations issued by the Senate in 1892 3 .
T h e new policy of the Russian Government, introduced by the
famous Manifesto of F e b r u a r y 1899, resulted in the restriction of civil
r i g h t s in contradiction to F i n n i s h legislation. T h e right to form new
associations was suspended until 1901, and from then onward the
permission of the Crown was necessary for the formation of new
associations. I n virtue of the Order of 1900, no public meetings could
be held without prior authorisation of the a u t h o r i t i e s 4 .
These
restrictive measures remained in force until 1906 °.
I t is worthy of note that, even apart from administrative
restrictions, the right of assembly and association was guaranteed
only in so far as it was not in contradiction to the laws. T h e old
Swedish legislation regulating contracts of employment in agriculture
a n d industry imposed a n u m b e r of important restrictions on the
workers' r i g h t to associate.
T h e conditions of labour affecting agricultural labourers, who
formed the bulk of the working classes i n Finland, had been regulated
since the seventeenth century by the Statute Law defining the rela6
tions between masters and servants (palkollissääntö-legostadgan)
.
T h i s measure covered " wage-earning servants ", that is to say farm
hands having a contract of one year or more 7 . I n order to prevent
1
The Government of Finland was represented by the " Imperial
Senate of Finland ", presided over by the Russian Governor-General, and
consisting of a Council formed of Finnish senators.
2
Penal Code, Chapter XVI, section 6, concerning the access of
Government authorities to public assemblies and the conditions relating
to the dissolution of an association.
3
The authorisation to hold large public assemblies at regular intervals
had to be obtained from the Senate.
4
In a memorandum submitted in 1904 to the Emperor, the Diet of
Finland pointed out that this Order was tantamount to an abrogation
of the freedom of assembly.
5
STÂHLBERG : Suomen hallinto-oikeus, II, pp. 130-175.
6
The old Swedish Statute Laws still in force in Finland were
promulgated in 1664, 1686, 1723, 1739; and 1805.
7
This law also covered servants in the towns having a contract of
six months or more, but this class of workers was of little practical
importance.
357
FINLAND
vagabondage and to ensure a plentiful supply of labour for agriculture,
this law provided for t h e introduction of compulsory service for very
poor workers, a n d later for those n o t paying taxes. Compulsory
service was repealed i n 1883 ; b u t t h e other provisions of t h e L a w
have remained in force until our times. Legislation of this sort made
freedom of association impossible for agricultural workers, t h e large
majority of whom belonged, at t h e end of t h e nineteenth century, to
t h e class of " wage-earning servants ".
Seamen's conditions of labour were defined in similar fashion b y
the Maritime Code of 1873.
T h e position of industrial wage earners was quite' different.
Subjected t o a system of craft guilds, introduced i n F i n l a n d b y
Swedish legislation a n d by G e r m a n craftsmen, the workers were
placed under the protection of t h e magistracy and t h e employers. I n
addition to t h e guild system, Swedish legislation had also set up a
special system for manufacturing a n d industrial concerns properly
so called.
T h e Factor}' Privileges a n d Industrial Regulations
x
(.hallisääntö-hallordningen)
fixed the m a x i m u m wages payable,
a n d prohibited, under t h e penalty of a fine, all combination between
workers for t h e purpose of raising t h e rates laid d o w n . . Under t h e
influence of more liberal idea«, t h e guild system a n d that applying to
the manufacturing industries were repealed in 1868, a n d freedom of
industry a n d labour were proclaimed by law i n 1879 2 .
Although in principle t h e new system allowed t h e workers to
combine, its provisions did not prevent this privilege being restricted
in practice, as it left t h e employers full liberty to draw u p workshop
regulations. A s even the magistrates were n o t permitted to examine
t h e contents of these regulations, the employers used them to introduce
rules which were in contradiction both to the Industries Act and to t h e
general law, and this became t h e method whereby t h e employers
endeavoured to restrict freedom of association.
The curt and strict form of these regulations gives a good idea of
the iron discipline practised in the factories at that time. Insubordination,
or the mere attempt to strike, was considered an offence
justifying the
final dismissal of the worker and the loss of his wages 3 .
1
The Industrial Regulations in force in Finland were promulgated
in 1739 and 1770.
2
The idea of penalising combination is still to be found in the
Bills on industry prepared in 1857 and 1899, which contained provisions
imposing heavy fines on strike agitators. These Bills, however, never
passed into law. Cf. RENVAIX : Työvälipiihcen
vapaus.
3
EHRNROOTH :
Arbetsreglementena,
p p . 224-225.
35§
FREEDOM OF ASSOCIATION
Sometimes combination was strictly forbidden, and even when
this was not the case the exercise of this prerogative obviously became
very difficult in such circumstances.
During a number of years the restrictions imposed on the right
to associate had no real practical importance. Indeed, it is difficult
to say whether it was the legal system in force which prevented the
development of the industrial associations, or whether, on the
contrary, it was the slow g r o w t h of the associations which facilitated
the maintenance of the measures described above. T h e fact remains,
however, that the trade union movement began to develop oniy
towards the end of the n i n e t e e n t h century.
During the latter half of that century, Finland, following the
general law of evolution, changed over from the traditional
agricultural system to the modern system of capitalism. T h e consequences of this " industrial revolution " and of the new régime of
freedom of labour were the same in this instance as in other countries ;
an industrial proletariat arose in F i n l a n d . I n spite, however, of the
workers' wretched conditions of existence, the trade unions were
unable to develop. I n d u s t r y found a large reserve labour a r m y in the
landless rural population, w h o still adhered to their traditional
opinion " that social conditions were unchangeable and authority
was of divine substance " ' .
T h e psychological change necessary for the g r o w t h of a modern
trade union movement was caused by the patriotic and democratic
ideas of t h e period. T h e pioneers of t h e F i n n i s h workers' movement,
the " workers' societies ", were founded from 1883 onwards, on the
initiative of a number of persons desirous of improving the lot of the
workers 2 . These bodies were, however, " societies for the workers "
rather than " societies of workers ", as very few workers actually
belonged to them. T o remedy this defect, the W o r k e r s ' Society of
Helsingfors conceived t h e idea of, a n d obtained t h e necessary
permission to found, trade sections. T h e number of these sections
increased rapidly d u r i n g the following years in several towns, the
1
VON SCHOULTZ : Bidrag till belysande av Finlands social-demokratiska partis historia, p. 19.
2
In 1891, the Government grew alarmed and forbade all meetings of
the representatives of the workers' societies, this being the first example
of the application of the above-mentioned administrative regulations.
This did not prevent, however, the formation two years later of a
" workers' delegation " open to all workers' societies, whose membership
in 1S95 was roughly 5,000.'
FINLAND
359
somewhat rare independent unions 1 generally joining the societies.
I t should be observed, however, t h a t these early industrial associations were not really trade unions in the strict sense of the word,
for they included small-scale employers as well as workers, and had
among their aims " the maintenance of good relations between
employers and workers " a n d " the prevention of strikes ".
I t was precisely the strike question that was instrumental in
leading to a change in the character of these societies. Labour disputes
had become ever more numerous after the critical period which
occurred between 1892 a n d 1895. As t h e trade unions obviously
could not remain neutral to these disputes, the employers withdrew
from the unions.
W h e n , towards the end of the nineteenth century, the unions
t h u s became a n instrument of industrial warfare, their co-ordination
became essential. On t h e one hand, unions in t h e same town first
of all set up central committees 2 ; on the other h a n d , unions of the
same trades, situated in different towns, founded national federations 3 . A t t h e end of t h e nineteenth century a dozen such trade
union federations were already in existence.
T r a d e union organisation made no further progress before the
first decade of the twentieth century 4 . T h e unions remained weak,
and were unable, for three different reasons, to unite their efforts
to form a general federation.
T h e first of these reasons was political. As has already been
stated, the formation of new associations became extremely difficult,
if n o t impossible, after 1899. T h e action of the trade unions was
subjected to strict and arbitrary supervision by t h e authorities. T r a d e
union meetings were often forbidden and broken u p , strikers being
prosecuted, and even imprisoned 5 .
T h e second reason was the formation of t h e first employers'
1
The printers' union of Helsingsfors, founded in 1885, was the
oldest union in Finland.
2
The oldest central committee was that of Helsingsfors, founded
in 1889.
3
The oldest national trade union federation was that of the printers,
founded in 1897.
4
In 1904, the number of trade unions in existence in Finland was
224, with a total membership of approximately 8,000.
5
It must be admitted that the strikers often rendered themselves
guilty of violence towards strike-breakers ; but on the other hand a number of employers, by importing Russian strike-breakers, helped to excite
the strikers. See VON SCHOULTZ, op. cit., pp. 91-94.
360
FREEDOM OF ASSOCIATION
organisations 1. T h e fact of their existence hindered t h e activities of
the workers' unions, and a large number of workers lost confidence
in their organisations.
T h e third reason was t h e internal difficulties which arose from
the clash of t h e trade union movement with t h e workers' political
movement. T h e " Labour P a r t y " was founded in 1899, a n d became
the " Social-Democratic P a r t y of F i n l a n d " in 1903. T h e majority
of t h e workers' societies joined t h e new P a r t y , a n d , as t h e trade
unions were affiliated to t h e societies, all their members nominally
became members of t h e Social-Democratic P a r t y . T h i s led to a
difference of opinion with regard to t h e relations which o u g h t to exist
between t h e workers' trade unions a n d political organisations. T h e
older trade unionists considered that t h e trade union movement ought
to remain quite independent, while t h e political leaders maintained
that t h e trade union movement ought to fall i n with t h e requirements
of t h e political struggle bf t h e working classes. T h e result of this
controversy was t h e foundation in 1900 of two separate trade union
federations, neither of which were strong enough to stand alone 2 .
T h e whole situation was suddenly changed as a result of the
general strike of 1905, which, t h e very n e x t year, was to divert the
political and social life of Finland in another direction.
§ 2. — Recognition of Freedom of Association
T h e general strike of 1905, proclaimed as a result of t h e revolution which broke out in Russia towards t h e end of t h e RussoJapanese W a r , had t w o direct consequences for F i n l a n d . I n t h e first
place, t h e E m p e r o r was led to repeal t h e illegal enactments limiting
the constitutional r i g h t s of F i n l a n d . I n t h e second place, t h e
democratic reform of public institutions, which had been claimed by
the F i n n i s h people for several years, was sanctioned b y t h e F i n n i s h
Parliament and approved by t h e Emperor in 1906 3 .
These events led to a change in the conception of freedom of
assembly and association.
1
The oldest employers' federations were those of the printing trades,
founded in 1900, and the metal industries, founded in 1902.
2
3
Cf. PAASIVUORI and K A R I :
Ammatiydistysliike,
V, pp. 275-328.
The former system of national representation by a Diet, composed
of four States-General was replaced by a Parliament with a single
Chamber, and the former suffrage, which was confined to a small minority
of the population, by à general, secret, and direct suffrage.
FINLAND
SOI
Civil r i g h t s were restored in toto and definitely guaranteed by
the Constitutional Act of 1906, according to which t h e exercise and
protection of such rights were to be laid down by special legislation.
A Public Assemblies Act, which is still in force, was passed in 1907,
although a Bill on industrial associations was rejected. As a result
of the political reaction in Russia, t h e Emperor, by an illegal Russian
Order issued in 1910 regardless of F i n n i s h law, transferred the
regulation of all matters " common to F i n l a n d and Russia " to the
jurisdiction of the Russian public authorities. But although freedom
of association h a d been included a m o n g those matters declared as
falling under Imperial jurisdiction, the Russian Government
introduced no new measures relating to associations in F i n l a n d .
T h e legal status of the associations was thus somewhat ambiguous.
On t h e one hand, the associations were no longer required to have
prior approval from the authorities of their rules a n d regulations,
while, on t h e other, the exercise of freedom of association a n d the
prerogatives of t h e associations could be determined only b y special
legislation which w a s not t h e n in existence. According to the interpretation of t h e F i n n i s h judicial authorities, t h e Constitutional Act
of 1906, besides allowing F i n n i s h citizens to form associations without
prior authorisation 1, invested the associations with legal personality,
which moreover was previously implied in the general principles of
F i n n i s h law 2 . I t is to be noted in particular that t h e Constitutional
A c t of 1906 w a s so interpreted that freedom of assembly a n d association could not be restricted by obligations resulting from State, comm u n a l , or private service.
These rights thus became recognised by public law 3 .
Again, all attempts made to introduce new legislation referring
to contracts of employment were held up in their final stage by t h e
Emperor, who refused to ratify the proposals adopted by Parliament
and submitted by t h e F i n n i s h Government. B u t t h e restrictions which
it was'in t h e power of the employers to impose gradually disappeared
as a result of the development of the trade union movement.
T h e general strike gave a great impetus to the workers' movement
1
The Senate nominated by the Emperor was since 1912 again
competent to approve or to reject the constitution and rules of the
associations. There were in existence, however, a large number of
associations which had not even applied for official recognition.
2
STÂHLBERG, op. cit., IT, pp. 163-164, 170-172.. This interpretation
was nevertheless contested to a certain extent.
3
Ibid., pp. 136 and 168.
362
ERBEDOM OF ASSOCIATION
in general, the Social-Democratic P a r t y subsequently becoming the
strongest political organisation in the land 1 .
A t a congress held by the P a r t y in 1906 a resolution was adopted
to the effect that the trade union movement was to develop
independently, b u t t h a t it was to remain in close contact with t h e
workers' movement in g e n e r a l 2 . T h e so-called trade union controversy
being t h e n practically settled, the trade unions agreed in 1907 to
form the " Confederation of T r a d e Unions of F i n l a n d "
(Suomen
Ammattijärjestö-Finlands
Fackorganisation).
T h e n u m b e r of workers affiliated to this body on its formation was 25,000 or three times
t h e total membership of the unions in 1905. But the workers were
slow in u n d e r s t a n d i n g the advantages to be derived from trade union
organisation and during the years following the foundation of the
Federation trade union membership varied between 16,000 (1910) and
42,000 (1916) 3.
I t should here be observed that several classes of State workers
set up free organisations which affiliated to the Confederation 4 .
Nevertheless, the Association of Custom House Officials, founded in
1906, " has h a d to cease its activities on account of persecution by the
authorities " 3 .
I t should also be noted t h a t outside t h e Confederation which
co-operated with the Social-Democratic P a r t y , a n u m b e r of nonmilitant trade union federations were founded in 1905 and 1906 on
the initiative of the other political parties, but their importance was
small 6 .
T h e organisation of industrial workers in trade unions and t h e
increasing, frequency of industrial disputes led t h e employers to
organise their forces. T h e employers' associations set up a general
1
Of the 200 seats in the new Parliament, the Social-Democratic
Party gained 80 to 90 at the elections of 1907 to 1913 and 103 at the
elections of 1916.
2
Suomen Sosiaiidemokraattinen
puolue 25 - vuotias, p . 53.
3
PAASIVUORI and
K A K I , pp.
cit.,
V, pp.
458-492, 632.
4
Trade unions have been formed by railwaymen, enginedrivers and
firemen, Stale railway workshop workers, postmen, and prison warders.
5
6
PAASIVUORI and
K A R I , op.
cit.,
VI,
p.
208.
These bodies include the Finnish Workers' Union
(Suomatainen
työväenliitto), the Christian Workers' Union (Kristillinen
työväenliitto),
and the Workers' Constitutional Union (Perustuslaillinen
työväenliitto).
The total membership of these unions in 1913 was only 800.
FINLAND
363
federation in 1907, which groups a large n u m b e r of the industrial
concerns of the country 1.
T h e movement of organisation which developed as a result of the
reforms of 1906 extended mainly to industry properly so called. I n
agriculture organisation made slow and comparatively little progress.
Social evolution in the local districts nevertheless greatly changed the
composition of t h e agricultural masses. T h e class of " wage-earning
servants " which preponderated at the end of the nineteenth century
had rapidly diminished. Smallholders and day labourers formed t h e
bulk of agricultural labour. A m o n g this heterogeneous population,
which h a d remained untouched by social legislation, the general
strike served to propagate social-democratic ideas.
Nevertheless,
a l t h o u g h this political influence destroyed the former patriarchal
conception of the relations between the employers and workers, it did
not lead to t h e development of trade union organisation. I n spite of
the fact that the small tenants founded a general union in 1910
(Maanvuokraajain
lutto), which remained independent 2 , the agricultural workers properly so called were unable to perfect any form of
organisation.
Aided by favourable circumstances, t h e trade unions were able
to develop further during the early years of the war, although the
right to associate and to strike was limited b y a number of provisional,
" compulsory Decrees ".
Besides conferring full liberty on F i n l a n d and its workers, the
Russian revolution of 1917 was a tremendous stimulant to the trade
union movement in Finland. T h e membership of the Confederation
of T r a d e Unions reached its highest total, namely 162,000, and a
number of new federations, including those of agricultural workers
and certain classes of State workers, were founded. Notwithstanding
this, t h e movement was rapidly overwhelmed by the political events
which led up to the independence of F i n l a n d .
1
Cf. Valtiotieteiden käsikirja, Vol. VI, pp. 170-171.
- Small tenands and " crofters " form in Finland (as in Sweden) an
intermediary class between the independent workers and the paid hands ;
they farm a small piece of land and pay their rent by working on the
proprietor's lands.
FREEDOM OF ASSOCIATION
364
§ 3. — Foundation of the Present System of Legal Protection
for Freedom of Association
The declaration of the independence of Finland was followed by
a series of abnormal events, which, however, were of but short
duration. The Russian revolution led to an armed revolution in
Finland in January 1918, which was headed by the Russian regiments
quartered in the country, and Red Guards composed of Finns.
Some months after the suppression of this revolution, emergency
regulations, issued in 1918, allowed the Government to curtail the
free exercise of civil rights. This resulted in the total suspension of
trade union activities ; the premises of the workers' societies where
the trade unions had their headquarters were confiscated, and the
funds of the unions sequestrated or seized. Many of the trade union
leaders had perished during the civil war or in prison, while others
fled to Russia. Towards the end of 1918, however, the Social Board,
urged by a provisional Trade Union Committee, petitioned the
Government to define the conditions in which workers would be
allowed to combine and to form industrial associations. The Confederation of Trade Unions was able to resume its activities in a
limited sphere at the beginning of 1919.
As was to be expected, the influence of the events of 1918 was
felt for some considerable time after the collapse of the revolution.
The relations between the authorities and the Civic Guard * on the
one hand, and between the workers and their unions on the other,
remained fairly strained 2. The controversy on the subject of freedom
of association, which will be described later, was the outcome of these
events.
The effects of the 1918 revolution were especially disastrous for
the trade union movement organised by State workers, and those
unions which had affiliated to the Confederation of Trade Unions were
dissolved. The authorities also dismissed, by way of punishment, all
workers who had had relations with the insurgents, or who had been
members of the unions taking part in the revolution. The dismissed
Workers — railwaymen and postmen for the greater part — who
numbered about 1,150, were thus deprived of all their previous rights
1
The Civic Guard (Suojeluskunta-Skyddskâr) is an armed corps,
founded in 1918 and regulated by a Decree published in 1921 It is
recognised and subsidised by the State.
2
Työväen tietokirja, pp. 9-10.
FINLAND
365
to a pension, etc. 1 Efforts made for their reinstatement resulted in
the promulgation of an Act of Amnesty of 25 January 1924, which
pardoned all State workers dismissed for complicity in the revolution.
Although most of the workers concerned were reinstated, the situation
of a number of others has not yet been definitely regulated, partly on
account of the absence of suitable vacant posts.
The emergency restrictions expiring in June 1919, freedom of
association again became legally recognised, and even developed in
certain directions.
The former legal bases of the right of assembly and association
have been confirmed. The new Constitution of the Republic of
Finland of 1919 guarantees civil liberties in the same terms as those
of the Constitutional Act of 1906, while the Public Assemblies Act
of 1907 has been maintained. This legislation has been completed
by an Act on associations, promulgated in 1919, which regulates
the exercise of freedom of association and the measures of legal
protection afforded such bodies. This Act also applies to trade unions.
Labour legislation has also been completely revised. The clauses
relating to contracts of employment contained in the Industries Act
and in the Regulations for wage-earning servants were replaced in
1922 by an Act on contracts of employment. By this Act, the
workers' right to associate is definitely protected against the introduction of restrictive measures by the employers. Again, the legislation
on collective agreements, conciliation and arbitration, which was
adopted in 1924 and 1925, grants the unions certain prerogatives in
connection with the regulation of conditions of labour.
The practical application of these constructive measures of social
reform has been hindered, however, by the situation created by the
Communist movement — an offspring of the events of 1917-1918 to
which a part of the workers have remained faithful.
The Confederation of Trade Unions and its various affiliated
organisations and sections were officially recognised in virtue of the
Act on associations. Hardly, however, had the trade union movement been reconstituted when the Communist elements managed to
seize power in the unions. Although representing but a minority of
the working class 2 they carried the day against the Social-Democrats
at the General Trade Union Assembly in 1920.
1
Ibid., pp. 147-150.
At the General Elections of 1922, 1924 and 1927, the Socialist Labour
Party (Communist) obtained 27-20 seats in Parliament as against 53-60
obtained by the Social-Democratic Party.
2
366
-FREEDOM OF ASSOCIATION
I n order fully to understand the present position of freedom of
association in Finland, it is here essential to give a short description
of trade union policy during t h e last few years.
F r o m 1920 to 1923, t h e new management of the T r a d e Union
Federation did all in its power to turn the trade union movement in
the direction advocated by Communist circles 1.
I t is true t h a t t h e Confederation and t h e main trade union
organisations affiliated to it did not formally go over to t h e Communist P a r t y , which was legally tolerated during t h e years in question.
But t h e ruling of the old Constitution of 1912, according to which
they were required to remain " in collaboration with the SocialDemocratic Party " 2 , was suppressed, a n d t h e local organisations were
allowed either to remain neutral or to join one or other of t h e existing
labour parties. A s a matter of fact, however, Communist propaganda
led numerous trade union organisations to affiliate, by a majority
decision, to the Communist Party. I n several cases all members were
obliged to pay, directly or indirectly, contributions to this P a r t y ;
in other unions, however, Communist and Social-Democratic members
paid their contributions t h r o u g h t h e medium of t h e union to their
respective parties.
I n order to render the trade unions efficient organs of " class
warfare ", which was announced as being the main object of t h e trade
union movement, t h e new management of t h e Confederation
introduced reforms in trade union organisation a n d m e t h o d s . T h e
older form of organisation in trade sections and unions h a d , before
the w a r , already been recognised defective by all concerned, and
several proposals of reorganisation had been prepared. T h e scheme
prepared by the extremists was adopted by t h e General T r a d e Union
Assemblies held i n 1920 a n d 1923. According to this scheme t h e
trade union section was to be replaced as t h e primary trade union
organ b y " t h e organisation of the place of work ", which groups all
workers in the same undertaking, b u t which m a y be subdivided into
workshop sections. T h e primary organisations belonging to the
same industry of t h e same locality form an " industrial committee ",
affiliated t o t h e national union of t h e industry concerned. T h e unions
1
See
SUOMEN
AMMATTIJÄRJESTÖ :
Viidennen
edustajakokouksen
pöytäkirja
and Kertomus
1921-1923. Työväen tietokirja,
pp. 10-18.
PAASIVUORI in Työväen kalenteri XVI, pp. 69-80.
2
According to a decision taken at the General Assembly in 1912,
no member or union could be obliged to affiliate to this Party against
their will.
FINLAND
367
which together make up the Trade Union Confederation are thus
purely industrial organisations, to which all workers, skilled or
unskilled, employed in a given industry, belong. But, in addition
to the unions, all the industrial committees of the same district, "when
there is more than one, form a " central local committee ", which
maintains direct contact with the executive committee of the Confederation. In order to suit the somewhat special conditions obtaining in Northern Finland, the central local committees form a " Trade
Union Organisation of the Northern District " (Pohjolan Ammatillinen
piirijärjestö).
Although the Social-Democratic elements have generally agreed
to adapt trade union organisation to the new conditions of industry,
they have been forced to recognise that these new committees have
been formed mainly with a view to promoting Communist propaganda 1 .
The Communist- tendency appears more clearly in the new trade
union tactics introduced by the trade union leaders. Asserting that
the aim of the trade union movement is to prepare a social revolution,
they advocated sudden stoppages of work in order to prevent
employers from obtaining a regular output. The mutual-aid funds
were consequently declared not only useless but directly harmful to
the trade union movement. Collective agreements which restrict the
freedom of action of the workers were also condemned.
At the same time the character of the international relations of
the Trade Union Federation changed. From the moment that the
Communist element took over the management of the trade union
organisations, relations with the International Federation of Trade
Unions of Amsterdam were suspended. In 1921 a referendum taken
among the members of the unions to ascertain whether the Finnish
organisations should affiliate to Amsterdam or remain independent
gave a majority in favour of independence. In 1922 the executive of
the Federation went even further, and organised a second referendum
on the choice between independence and affiliation to the Red Trade
Union Organisation. Although the majority of the unions voted
in favour of Moscow, the Committee has not brought this decision into
effect, mainly because only one-third of the total membership of the
unions took part in the referendum.
The relations of the Finnish trade unions with the International
Suomen Ammattijärjestö, Feb. 1922.
368'
FREEDOM OF ASSOCIATION
L a b o u r Organisation were also shackled b y t h e Confederation.
Whereas the former executive committee accepted the invitation of
the Government to nominate a workers' delegate to the First Session
of the International Labour Conference, t h e Communist committee
refused to do so during the years 1920 to 1922, giving the usual
Communist reasons \
A considerable change took place i n t h e trade union movement
towards the end of 1923 2 , this change being due partly to t h e
stubborn opposition of t h e Social-Democratic elements a n d partly to
the general trend of political events. I n 1923, the Government took
energetic measures against t h e Communist Party, which was declared
illegal. Although t h e Confederation a n d its affiliated unions were
n o t directly affected by this step, they nevertheless t h o u g h t t h e
m o m e n t opportune to break officially with the Communist P a r t y
(circular issued in 1923 by the executive committee of t h e Confederation) . T h e Social-Democratic P a r t y t h u s renounced their plan
of founding a new trade union confederation, a n d accepted t h e position
•of a minority with recognised rights within the trade union organisation. T h i s somewhat shaky compromise was confirmed b y the
General Assembly of T r a d e Unions in 1926, when the Communists
m a d e concessions on several important points. T h e reorganisation of
the trade union movement was to be merely technical and was to be
introduced gradually on t h e basis of t h e existing organisations. T h e
m a i n reforms undertaken were, in fact, confined to the amalgamation
of several unions (of which t h e number was reduced from 28 in 1919
to 18 i n 1926) and t h e constitution of local central committees i n six
industrial districts. W i t h t h e setback imposed on the Communist
tactics, the trade unions have returned to their old methods which
favour mutual benefit funds, collective agreements, etc. A l t h o u g h
t h e proposal of the Social-Democrats to affiliate with the Amsterdam
International has been rejected, t h e decision t o adhere to t h e Moscow
organisation has, nevertheless, been formally cancelled. Moreover,
since 1923, the executive committee h a s regularly nominated a
w o r k e r s ' delegate to t h e International Labour Conference, a n d the
1
The result of this was that the Finnish workers were not represented
at the Session of 1920. In 1921 and 1922, the Finnish workers' delegate
was nominated by the Union of Small Farmers, to which the Government
turned after the refusal of the Confederation.
2
Cf.
SUOMEN
edustajakokouksen
-PP- 73-79-
AMMATTIJÄRJESTÖ,
pöytäkirja.
Kertumos,
1924-1925, and
HTJTTUNEN in Työväen
Kalcnteri
VII
XX,
FINLAND
369
General Assembly of 1926, while censuring the committee for having
done so without consulting the representative organs of the Confederation, authorised the new committee to continue to nominate
a F i n n i s h workers' delegate in future 1 .
Variations of trade union policy are reflected rather accurately
by the fluctuations in the total membership of the trade union
federation. H a v i n g reached the figure of 60,000 in 1920, trade union
membership then declined regularly until 1924, w h e n it totalled
47,000 ; a rapid rise then ensued, in 1926 it increased to 62,000, and
in 1927, to 76,000 2 . W h e n it is remembered that the total number of
industrial workers properly so called in F i n l a n d is, according to a
report of the Factory Inspectorate for 1925, only 187,000, it has to
be admitted that trade union organisation in industrial circles has
almost reached a level comparable with that in a number of other
E u r o p e a n countries.
T h e same, however, cannot b e said of the agricultural workers.
F o u n d e d in 1917 and affiliated to the Trade Union Federation, the
agricultural workers' union includes only about 1,000 members out
of a total number of agricultural workers estimated at close on
293,000 \
T h e organisation of trade unions among State workers was undertaken on a new basis after the revolution of 1918. T w o unions of
workers on t h e State railways have resumed their activities under
t h e aegis of the Confederation of T r a d e Unions, but their importance
is small. T h e majority of State workers and salaried employees are
organised in a number of large, independent unions. I n 1922 six
unions of subordinate' employees (postmen, customs officers, prison
staff, government office messengers, pilots, and skilled mechanics)
agreed to form the Central Union of State Employees
(Valtionvirkailijcdn keskusliitto).
Other classes of public employees have set
u p a n u m b e r of independent organisations, of which the more
important include the Central Federation of State Railway Employees
1
The new committee, which will remain in office until the next
General Assembly in 1928, is composed of 20 Communists and 10 SocialDemocrats. The president is a Social-Democrat, the secretary being a
Communist.
2
For the names and numerical strength of the various affiliated
organisations, see International
Labour Directory,
1925, Part III,
pp. 84-85.
3
This figure includes, however, a large number of workers employed
casually in agriculture. Cf. Valtiotieteiden
käsikirja, Vol. II, p. 41 ;
Suomen Ammattijärjestö,
1926, pp. 175-178.
Freedom of Association
37ô
FREEDOM OF ASSOCIATION
(Valtionrautatieläisten
keskusjärjestö)
and the Policemen's Union
(Poliisien liitto).
T h e total strength of these organisations exceeds
11,000 members.
Unlike the development of the workers' trade unions, w h i c h
has been greatly handicapped by disagreement among the workers,
the employers' associations have grown up in normal fashion. T h e
General Union of E m p l o y e r s ' Associations was reconstituted in 1917
under the name of the Central Federation of Employers of F i n l a n d
(Suomen
työnantajain
keskusliitto
— Arbetsgivamas
i Finland
Centralförbund).
Since its foundation this federation has been joined
by nine new organisations, a n d now comprises seventeen associations,
including a " general group " formed of independent persons who
are not affiliated to the industrial unions. T h e number of workers employed by the undertakings affiliated to the Federation in 1926
was 62,000, and in 1927, 71,000, that is to say, almost the same as
the total membership of the workers' trade union confederation. T h e
employers' federation is affiliated to the International Organisation
of Industrial Employers, a n d has set u p , in conjunction with the
corresponding federations in t h e Scandinavian countries, a n " Office
of Employers' Federations of the F o u r Northern Countries ", with
its headquarters in Brussels \ I t is particularly worthy of note as an
illustration of the tactics adopted by the Federation, that it decided
in 1923 to refuse to negotiate with workers' trade unions whose
representatives are affiliated to the Communist movement 2 .
T h e somewhat special conditions adherent to agriculture in Finland have made it necessary to set up organisations which are not
trade associations in the strict sense of the word, b u t which
represent the interests of the agriculturists, and are to be mentioned
here. T h e rapid development of agrarian reform has created an
important class of small farmers, estimated at about 200,000 households. T h e Union of T e n a n t s mentioned above has been reorganised
under the name of the Union of Small Farmers (Pienviljelijäin
liitto) ;
the political tendencies of this union led to t h e formation in 1921 of
the Central Union of Small F a r m e r s (Pienviljelijäin
keskusliitto),
the
total membership of these two unions being close on 17,000. As the
programme and sphere of activity of these two associations are
practically analogous and as both are subsidised by the State, the
Ministry of Agriculture has been trying to b r i n g about their
1
3
Cf. International
Industritidningen,
Labour Directory,
1923, p. 109.
1925, Part II, pp. 890-891.
FINLAND
37I
amalgamation, b u t so far w i t h o u t success. Still another association
formed by agriculturists is t h e Central Union of Agricultural
Producer's (Maataloustuoottajien
keskusliitto),
with over 20,000 members, which s p r u n g from a committee formed in 1917 to organise an
association of agricultural employers, b u t to which t h e majority of
t h e agriculturists prefer t h e union of t h e more general character.
T h e aims of t h e U n i o n are threeïold ; viz. to safeguard t h e general
interests of agricultural producers — especially b y m a k i n g representations to t h e Government — t o settle disputes i n industry, a n d to
improve conditions affecting agricultural workers 1.
Another result of t h e post-war trade union movement in F i n l a n d
has been t h e extensive organisation of civil servants and intellectual
workers of all classes.
Affected in recent years b y t h e difficulties of t h e economic
situation, civil servants a n d higher grade employees have come to
realise t h e necessity for trade union organisation.
Officials are
grouped in t w o federations, viz. t h e Central Union of Civil Servants'
Associations (Virkamiesyhdistysten
keskusliitto),
founded in 1918,
and t h e Central Union of Municipal Officials' Associations (Kunnallisvirkamiesyhdistysten
keskusliitto),
founded in 1919. Primary
school teachers form a special association k n o w n as t h e T e a c h e r s '
Union (Opettdjaliitto).
These three unions of public officials,
together with two unions of private salaried employees (teachers in
secondary schools a n d persons occupying managerial posts i n ind u s t r y ) , form t h e Intellectual W o r k e r s ' Federation (Henkisen
työn
yhtymä — Unionen for intellektuellt
arbete).
T h i s body, which
includes 13,000 members, is affiliated to t h e International Federation
of Intellectual W o r k e r s . I n addition to t h e central unions there are
at present twenty-five independent associations covering certain
classes of employees (commercial employees, sea captains a n d
masters) a n d t h e liberal professions 2. I t m a y therefore b e stated
that trade union organisations extend in Finland to almost all
branches of economic and social life.
1
2
Cf. Valtiotietciden käsikirja, Vol. II, pp. 395-397.
For the names, numerical strength, etc., of State workers' and
intellectual workers' associations, cf. H E N K I S E N TYÖN YHTYMÄ :
Hen-
kinen iyö, I, p p . 232-237 (Appendix : Intellectual Workers' Associations).
CHAPTER II
T H E R I G H T OF ASSEMBLY A N D ASSOCIATION, A N D
ITS APPLICATION TO T R A D E COMBINATIONS
§ 1. — Individual Right of Assembly and Association
U n d e r F i n n i s h law as at present in force, t h e general conditions
under which trade combinations carry on their activities are defined
b y t h e provisions relating to the freedom of assembly a n d association.
Generally speaking, the right of individuals to meet and combine is
governed by the Constitution, and, so far as the workers are concerned,
it is supplemented by a provision of the Act on contracts of work.
T h e Act on freedom of speech, assembly a n d association promulgated on 20 A u g u s t 1906 is still nominally in force, b u t its substance
was incorporated in the Constitution of t h e Republic of F i n l a n d of
17 J u l y 1919, Article 10 of which reproduces the corresponding
section of the 1906 Act. I t runs as follows :
Article 10. — Finnish citizens shall enjoy freedom of speech and the
right to have printed and to publish documents or pictorial images, and
no obstacle to prevent this shall be allowed. They shall also have the
right to meet without previous authorisation for the purpose of discussing
public affairs or for any other lawful object, and also to form associations
for objects not contrary to law or morals.
The provisions concerning the exercise of these rights shall be fixed
by law.
T h e Constitution t h u s guarantees the individual freedom of
assembly a n d association to all F i n n i s h citizens. T h i s guarantee can
be w i t h d r a w n only by an A c t passed in accordance with the procedure
provided for the amendment of the Constitution. As a constitutional
right, conferring on citizens the freedom to meet and combine without
intervention by the public or administrative authorities, it constitutes
a " specially protected civic right " 1. A n y system by which the
1
In practice the right of assembly and association is also granted to
foreigners living in Finland, but for them it may be restricted by a
simple Act or administrative Order. • STAHXBERG, op. cit., II, p. 133.
FINLAND
373
right of assembly and association is made dependent on a previous
authorisation, which may or might be required under an administrative order or the order of the magistrate, is expressly prohibited by
the Constitution. If a public authority tries to limit the freedom of
assembly and association, the citizen concerned may appeal to a higher
authority, and should it no longer be possible to have the unlawful
measure revoked, he may claim that the magistrate shall be rendered
responsible for the fault committed in the exercise of his functions.
It should be observed that the constitutional recognition of the
right of assembly and association does not exclude the existence of
restrictions on the freedom of action introduced under other laws.
It is a right protected only for purposes which are not contrary to the
law. It follows that certain restrictions may be imposed either under
criminal or under civil law.
Obviously, the-provisions of the criminal law apply as much to
meetings and associations as to individuals. An offence or crime
does not become lawful because it is cqmmitted by several persons
together in a meeting or an association. In fact, in order to prevent
an offence or a crime, the authorities may give the assembly or
association instructions similar to those applying to individuals *.
The principles of the civil law may also result in limitations of
the freedom of meeting and association, particularly in consequence
of the state of legal dependence as between certain groups,of persons.
Since the law contains no express stipulations in this respect, restrictions of this kind are as a rule the result of judicial interpretation.
According to the interpretation of the Constitutional Act of 1906,
and therefore of Article 10 of the Constitution, that is generally
accepted in Finnish legal practice, the freedom of assembly and
association of Finnish citizens who enjoy their full civil rights
cannot be limited merely because they are employed in the service of
the State, some other public authority, or a private person, subject
of course to the condition that they do not neglect their duty in order
to take part in meetings and associations 2 .
Under the Constitution, however, the freedom of assembly and
association is protected only against intervention by the public
authorities. As already explained in the historical survey, this freedom may be, and has in fact been, limited under legislation on labour
1
STÂHLBEKG, op. cit.,
2
Ibid., p . 136.
I l , p. 135.
374
FREEDOM OF ASSOCIATION
contracts. The regulations in question were replaced by the Act on
contracts of work, promulgated on i June 1922, which contains the
following section :
Section 34. — If an employer or his representive prevents a worker
from belonging to or joining a lawful association or performing his civic
duties, he shall be liable to a fine. The same rule shall apply if a worker
interferes with a fellow worker or with his employer in the same way.
A contract whereby either party binds himself not to belong to an
association shall be void.
Thus the law formally recognises the right of workers to join
associations — by which trade unions are obviously meant — free
from any interference by their employers. It should be observed,
however, that this recognition is indirect. The Act prohibits
employers from preventing workers from combining, but does not
specially protect workers' associations. On the same lines, the Act
also lays down that " any person who by violence or threats forces
or endeavours to force an employer to suspend work or to dismiss or
refrain from engaging any worker " shall be liable to penalties (section 35). It is clear that one of the objects of this provision is to
prevent trade associations from bringing pressure to bear on nonunionists. The law therefore also recognises the freedom of workers
not to combine.
§ 2. — Regulation of the Exercise of the Right
of Assembly and Association
Obviously the individual right to meet and combine cannot be
fully effective unless the occasional meetings of workers and their
permanent trade unions are also placed under legal protection. As
the law at present stands in Finland, this aspect of the freedom of
association is governed by general legislation on public meetings and
associations.
In accordance with the 1906 Act and Article 10 of the 1919
Constitution, the freedom of meeting has been made subject to the
Act of 20 February 1907 on public assemblies as amended by the
Act of 10 June 1921 and supplemented by the Decree of 20 May 1924
concerning public fêtes in rural districts which replaced the Decree of
1 June 1922. The freedom of association is subject to the Act of
15 January 1919 on associations, as amended by the Act of 1 February
1923 and supplemented by the Decree of the Council of Ministers
of 25 September 1924 concerning registered associations and the
FINLAND
Decree of 22 September 1922 concerning t h e right of
governors to close the premises of associations.
375
provincial
T h e object of the Act on public assemblies is " on the one hand
to protect the free exercise of the r i g h t of assembly of citizens, and
on the other to guarantee the maintenance of order and protect the
community against the abuse of the freedom of assembly " 1 .
T h e field of application of t h e Act is determined .first by the
definition of the term " public assembly ". F o r the purposes of the
Act, this term is deemed to cover a n y meeting open to other persons
t h a n those invited individually or belonging to the association which
convened the meeting (section 1, subsection 2) 2 . T h e Act provides
for certain exceptions to this rule (sections 10, 15).
T h u s , a n y meeting organised by workers' or trade associations
for the purpose of discussing and deciding on the questions concerni n g them, which is open to other persons t h a n members of t h e
associations and those they invite, is subject to the Act.
The
organiser 3 and the chairman are made responsible for the good
conduct of t h e meeting ; on pain of a fine t h e y a r e bound to keep
order, to prevent speeches and decisions which constitute punishable
actions, a n d in the event of disorder in t h e meeting to dissolve it
(section 7, subsection 12).
Representatives of the police authorities are empowered by the
A c t to supervise meetings a n d prescribe any- measures needed to
prevent abuse of the freedom of assembly. Open-air meetings must
previously be notified to the police authorities (section 3) 4 . Only in
four specified cases m a y t h e authorities dissolve meetings : (1) if t h e
meeting has been convened by a person w h o has n o right to do so ;
(2) if admission to the meeting is refused to the police ; (3) if t h e
organiser of the meeting or the chairman fails to carry out his duties
(defined in section 7 ) , or if his order to dissolve the meeting is not
obeyed ; (4) for open-air meetings, if t h e measures for public safety
prescribed by the police are not observed (section 9 ) . A n y person
1
Report of the Parliamentary Commission of 1905 to 1906, quoted
from STÀHLBERG, op. cit., Il, p. 139.
2
The meeting of an association is therefore a " private meeting ",
even if other persons than members are invited to attend.
3
A public meeting may be organised only by an association or a
Finnish citizen of good reputation who is not under guardianship (section 2).
4
An exception to this rule is allowed in favour of electoral and
educational meetings.
376
FREEDOM OF ASSOCIATION
w h o refuses to comply w i t h the order to dissolve the meeting is liable
to a fine (section 13). T h e continuation of a dissolved meeting
constitutes an offence covered by the provisions of the Penal Code.
A s already stated, public fêtes and entertainments are not covered
by the term " public assembly ". Public fêtes in towns are subject
to police regulations, those in rural districts to a n administrative
Decree. Since the Decree of 1924, authorisation must first be obtained
from the police authorities for all theatrical entertainments, concerts,
popular fêtes, soirées, open to t h e public, and therefore for all entertainments organised by trade associations.
T h e object of the A c t on associations is to define the conditions
of formation, existence, activities a n d dissolution of associations \
T h e Act authorises the formation of associations " for the joint
realisation of aims not contrary to law or morals " (section 1, subsection 1 ) . I t does not apply to associations r u n for profit or
essentially economic in character, nor to associations constituted by
legislation for a specified purpose, nor to religious communities (section 1, subsections 2 and 3 ) . T h u s it applies -chiefly to uneconomic
associations, or " associations not r u n for profit ". T h e question
whether a n association is run for profit or not is determined in each
case on its merits. T h e present practice of the courts is to deem that
employers' and workers' associations are of this type. T h e y are
therefore covered by t h e Act 2 .
T h e rights a n d obligations of a n association differ — and this
is the principal innovation of the 1919 Act — according as the
association is registered or not.
(i) A n y association covered by the Act m a y be, b u t is not
bound to be, registered. Only registered associations have legal
personality (section 9, subsection 1) 3 .
Registration involves the following obligations : the rules of
the association m u s t be in w r i t i n g a n d must be signed b y a t least
three members (section 6 ) . T h e y must state the name and aims of
the association and specify contributions (if a n y ) , the administrative
1
V. HYVÖNEN : Laki yhdistyksistä, Helsinki, 1925.
Armed associations formed for other purposes than hunting may
not be constituted without the permission of the Government (section 2).
Political associations may admit only Finnish citizens or societies consisting solely of Finnish citizens as members (section 4).
3
These associations append to their names the initials " r.y. " or
" r.f. " (abbreviations of the Finnish and Swedish words denoting
registered association) (section 28, subsection 3).
2
FINLAND
377
committee, the procedure for convening and holding meetings, the
auditing of the accounts, and the use to be made of the funds of the
association in the event of dissolution (section 7 ) . T h e Act also
contains provisions regarding the general meeting of the association
which apply unless the rules provide otherwise (section 13, subsection 3 ) . Finally, the association must be registered in the general
register of associations (section 8) \
A registered association may, in its own name, acquire rights,
assume, obligations, and sue and be sued in court (section 10). A n y
resolution taken at a meeting which violates the rights of third parties,
or reduces the privileges of members, or their equality with other
members, is considered null and void. A resolution contrary to the
law or to the rules of the association may be appealed against by the
administrative committee or a member of t h e association who has
not voted in favour of the resolution, and m a y be annulled by the
courts (section 15). Members of the association have the right to
withdraw at will, but a period of notice of not more t h a n a year m a y
be fixed (section 11, subsection 1 ) . F u r t h e r , a member w h o has
failed to fulfil his obligations or has hampered the activities of t h e
association may at any time be struck off the list of members (section n , subsection 2, added by the 1923 A c t ) .
T h e association is represented by the person or persons responsible
for the m a n a g e m e n t of its business in their capacity as members of the
administrative committee (section 17). T h e members of the committee and the other officials of the association are jointly and severally
liable for injuries to the association due to their fault or to actions
contrary to the law or to the rules of the association (section 19).
T h e conditions of dissolution of associations are fixed by section 21.
Section 21. — At the request of the public prosecutor or a member
of the association, the courts may pronounce the dissolution of the
association if it engages in activities contrary to law and morals, or to
the aims recorded in its rules.
If the contravention is of slight importance, the court shall consider
whether the executive committee of the association shall merely be given
a warning.
If the court orders the dissolution of the association, it must
immediately cease its activities. Unless the court decides otherwise, the
executive committee may continue the economic activities in which the
association previously engaged, and manage its property until the date
of the decision of the higher court.
1
The general register of associations is kept by the Ministry of
Social Affairs, according to the rules laid down in the Decree of the
Council of Ministers, 25 Sept. 1924.
3j8
FREEDOM OF ASSOCIATION
If t h e dissolution of the association is finally pronounced by the
court, the latter must appoint one or more persons to liquidate its
property. If the association ceases its activities for other reasons than
the decision of a court and has not specially appointed liquidators,
t h e members of the administrative committee must act in this capacity.
If the association ceases its activities, its property m a y not be used
for the purposes defined in t h e rules until all debts have been paid
(section 22). A n y person w h o represents an association w h i c h he
knows to have been dissolved by a court or organises meetings of the
dissolved association, or continues the activities of the association
i n a n y other way, is liable to a fine (section 34).
As a transitional measure it was provided that a n y association in
existence at the date the A c t came into force, which had acquired
rights or assumed obligations in its own name, was bound to register
(section 35).
(ii) Associations which are not registered have n o legal
personality (section 32, subsection 1), and cannot therefore acquire
property in their own name or sue or be sued in t h e courts. If an
obligation is assumed in the n a m e of an unregistered association, the
person or persons assuming it are jointly a n d severally responsible
i n t h e same way as for their other obligations (section 32, subsection 2 ).
T h e conditions of dissolution of unregistered associations are
subject to section 33 :
The provisions of section 21 shall apply to the dissolution of unregistered associations.
Any proceedings for the dissolution of an unregistered association
shall be instituted against the executive committee or one or more
members of the association. The competent court shall be the court of
the locality where the defendant or one of the defendants resides.
Finally, it should be mentioned that in pursuance of t h e Act
concerning the prohibition of alcoholic beverages, t h e provincial
governors are empowered to close the premises of an association in
t h e event of disorder (Decree of 1922, section 1).
§ 3. — Application to Trade Associations of the Right of
Assembly and Association
A n account of t h e present position w i t h respect to freedom of
association in Finland would be incomplete without a n examination
of the situation of fact created by the practice of the courts and
.administrative measures..
FINLAND
379
Before examining this question, it should be recalled t h a t the
difficulties which have been m e t w i t h in t h e application of the r i g h t
of association are mostly due to political events.
A s soon as t h e abnormal conditions h a d come to a n end, and t h e
1919 Act on associations came into force, the Confederation of T r a 3 e
U n i o n s and its affiliated unions asked for a n d obtained registration
by the Ministry of Social Affairs. I n a manner of speaking, tlie
trade unions were t h u s given official recognition, and they have never
criticised the legal protection so acquired.
On the other h a n d , a political p a r t y , Communist in tendency,
a n d with a revolutionary programme, was founded in 1920 \
As
already explained, the trade unions have always remained in touch
with the political parties. Several trade unions joined the new Communist P a r t y , and as this P a r t y has to some extent been considered
illegal and condemned as such, these unions have therefore found
themselves in conflict with t h e authorities responsible for t h e
maintenance of public order.
T h e trade unions as such have suffered no interference with their
r i g h t of existence and action, b u t only as instruments, whether real
or supposed, of the Communist movement.
Now, it should be observed t h a t the legal status of the Communist
P a r t y and its organisations remained fairly vague for some years,.
F r o m - t h e - o u t s e t , - however, the public.. authorities had taken steps
against it, for its Constituent Assembly, held in May 1920, was
dissolved by order of the Government, proceedings being instituted
against its organisers. A s t h e P a r t y h a d proclaimed its intention to
affiliate to t h e T h i r d International, t h e courts sentenced its founders
to imprisonment on the charge of high treason (final decision of the
Supreme Court of 20 April 1921). I t should be made clear, however,
that this sentence applied only to the persons w h o founded the P a r t y .
A s a matter of fact, a new Communist Party, w i t h practically t h e
saine programme, was formed immediately afterwards and in fact
continued to exist, founded local organisations registered u n d e r t h e
Act on associations, edited journals, and even took part in the political
elections of 1922.
I n these conditions the position of the trade unions which joined
this P a r t y became more or less ambiguous. T h e i r activities were
often considered by t h e police authorities as revolutionary, and this
1
Officially the " Socialist Labour Party ", " Labour Party ", and
" Workers' and Small Farmers' Union ".
380
FREEDOM OF ASSOCIATION
led to disputes between t h e trade unions a n d t h e public authorities.
T h e unions frequently complained on the subject of t h e application
of t h e right of assembly a n d association. T h e y accused t h e police
authorities and t h e civic protection guards of hampering the organisation of the workers and the activity of t h e trade unions, particularly in
rural districts 1 . I n its annual reports t h e Confederation of T r a d e
Unions has published a list of t h e cases of contravention of the freedom
of association in which it h a d issued manifestos and made protests,
or complained to the Minister of the Interior. I n a general way it
m a y be said that these protests a n d complaints related either to t h e
application of t h e right of assembly a n d association in general, or to
the measures taken by the police authorities on' the occasion of public
processions or meetings organised by the unions, or, finally, to t h e
arrest of certain trade union leaders 2 . T h e allegations of t h e trade
unions were usually contested b y the authorities, and in most cases
their complaints led to n o t h i n g 3 .
T h e s e cases of intervention were n o t so important as the proceedings that were instituted directly against the " T r a d e Union Organisation of the Northern District ", a body affiliated to the Confederation
of T r a d e Unions. T h e origin of the proceedings was a strike declared
in J u n e 1922 in t h e name of t h e wood workers of N o r t h Finland b y
the officials of the Organisation. According to the trade unions, this
strike was organised only for trade purposes, being intended to
produce an increase in wages. T h e political police service, however,
maintained that it was the outcome of action by the Communist
P a r t y . T h e members of the executive committee of the Organisation
were imprisoned on t h e charge of attempted high treason. T h e Vasa
Court of Appeal, j u d g i n g in t h e first instance, admitted only t h e
charge against one of the members of the committee for a speech
inciting to revolt, and it acquitted t h e rest of t h e accused (decision of
15 December 1922). T h i s decision was revised, however, by t h e
Supreme Court, on grounds which m a y be summarised as follows 4 :
1
Työväen Tietokirja,
2
SUOMEN AMMATHIJÄRJESTÖ,
pp. 9 and 10.
Kertomus,
Vol. 1921,
pp. 50-52 ;
Vol. 1922, pp. 16-25 ; Vol. 1923, pp. 50-52 ; Vol. 1924, p. 20.
3
I t may be added that the authorities sometimes refused to issue
passports to trade union officials wishing to attend congresses of foreign
trade unions. In this connection, interpellations were addressed to the
Government and discussed in Parliament in Dec. 1923 and April 1924.
4
The text of this decision was published in Suomen
Ammattijärjestö,
Vol.. 1924, No. 7, pp. 109-112.
FINLAND
SSI
(i) The management of the Confederation of Trade Unions and its
organs had entered the service of the Communist Party.
(2) These bodies had been reorganised so that they might be used
as instruments in the political struggle which would be needed for the
creation of a Soviet system and a new society.
(3) The accused were founders and leaders of the Organisation of
the Northern' District, a member of the Confederation of Trade Unions.
(4) The accused had therefore, for treasonable aims, joined an
organisation founded to carry out those aims, and in their capacity as
leaders they had attracted new members to the organisation.
F o r these reasons the Supreme Court sentenced the accused to
imprisonment and the loss of their civic rights for a specified period
(decision of 30 May 1924).
I t may be added that the President of the Confederation of T r a d e
Unions, w h o had taken part in the meeting of the executive committee
of the Organisation for the N o r t h e r n District, was acquitted of the
charges against him in this case, but, together with the members of
t h a t committee, he was sentenced for other reasons, including that
of entering the service of the Communist P a r t y as the paid head of
the Confederation of Trade Unions, serving the aims of that P a r t y ,
a n d organising, with^i the Confederation, a vote in favour of t h e
Confederation joining the Moscow International (decision of the
Supreme Court of 30 May 1924) \
A l t h o u g h the Supreme Court did not dissolve the Confederation
of T r a d e Unions and the T r a d e Union Organisation of the N o r t h e r n
District, the Confederation considered that the freedom of action of
trade unions was menaced, a n d , since no appeal against the j u d g m e n t
of the Supreme Court is allowed, it addressed a letter of protest to the
highest authorities in F i n l a n d , as well as a complaint to the International Labour Office.
I n its open letter of September 1924 to the President of t h e
Republic and the Chancellor of Justice, the Confederation stated that
t h e Supreme Court decision of 20 April 1921 had declared that the
foundation of the Communist P a r t y constituted a crime, and that the
decision of 30 May 1924 had declared that the Confederation of T r a d e
Unions, its management, and its affiliated organisations served the
ends of that Party. T h e Confederation, therefore, concluded that
the highest judicial authorities in the country deemed it to be a n
organisation pursuing criminal ends. T h i s allegation it energetically
1
The President was also sentenced in another case as a member of
the executive committee of the Communist Party, and as the author of
a political manifesto published in the organ of the Confederation of Trade
Unions (decision of the Turku Court of Appeal of 25 August 1924).
38 2
FREEDOM OF ASSOCIATION
refuted w i t h reference both to its rules a n d to the fact that trade union
reorganisation which h a d been deemed to be a preparation for revolution, was necessitated b y t h e industrial evolution of t h e country, a n d
h.ad n o t h i n g to do with t h e Communist Party 1 .
T h e complaint addressed to t h e International Labour Office on
i i A u g u s t 1924 begins w i t h a brief survey of t h e facts already
discussed in t h e present study : the principles of reorganisation of
the Confederation of T r a d e Unions, t h e origin of t h e wood workers'
strike in t h e N o r t h of F i n l a n d , a n d t h e awards of t h e Courts i n 1922
and 1924. T h e Confederation continued as follows :
As the High Court of Appeals considered that the new form of organisation of the Finnish Trade Union Federation was identical with
preparation of high treason, that the leading organs of the Federation
served the aims of a Party which was condemned to be scattered, and
that the crimes of the district committee, which crimes include the
procuring of new members, were so serious that they have been sentenced
to penal servitude, it is to be expected that there will arise more troubles
for the activity of trade unions in Finland. In some places the trade
unions are forbidden to arrange entertainments, and in other places their
activity is hindered by other means. During the last twelve years the
trade unions in all parts of the country have established every summer
so-called "Festivals of Labour ". The purpose of these festivals is only
to give entertainment and enlightenment to the working people. The
Russian authorities who, in bygone da3^s suppressed the rights of Finland,
never prevented these festivals. But the authorities of " Free Finland "
have, during this summer, in many places forbidden the festivals as a
result of the decision of the High Court. It has been demanded publicly
that the authorities must take energetic steps to prevent the activity of
the trade unions.
When we have certain inducements to presume that the liberty of
action of the Finnish Trade Union Federation will further be restricted
by arresting its officials and by scattering its organisations, and, moreover, considering that Finland is a member of the League of Nations
and of the International Labour Organisation, in whose Conferences the
Finnish Trade Union Federation has partaken by its delegate, and considering furthermore that the policy of the Finnish bourgeois against t h e
trade union movement is indisputable, as well as against the intentions
of the International Labour Organisation and its Office, we have taken
the liberty of sending you this explanation.
Hoping you will take all possible measures to secure the freedom of
association and liberty of action of the trade union movement in
Finland 2 . . . .
1
Letter published in SUOMEN AMMATTIJÄRJESTÖ,
1924, p p . 17-20.
2
Kertomus,
Vol.
The text of this complaint was published (in Finnish) in SUOMEN
AMMATTIJÄRJESTÖ : Kertomus, Vol. 1924, pp. 13-17. The consequence
was that a member of the International Labour Office responsible for the
enquiry into the freedom of association in various countries also
visited Finland, and came into touch with the Confederation of
Trade Unions, as well as with the authorities. The information he
collected has been used for the present report. (See Sosialinen
Aikakaus• kirja — Social Tidskrift, 1925, No. n , p. 743.)
FINLAND
383
It may be remarked that the proceedings against the officials of
trade unions have not had the effects feared by the Confederation.
But before the Supreme Court had given judgment in the case of
the Organisation for the Northern District, the trade unions had been
involved in other proceedings, instituted .against the Communist
Party, which resulted in the final regulation of the legal status of
the trade unions affiliated to this Party.
Of the various proceedings taken against Communists in Finland,
the most important were those of 1923. They were directed not only
against all the responsible chiefs of the movement (including
27 Members of Parliament), but also the Communist Party as such.
The Turku Court of Appeal, judging in the first instance, established
that the Party had continued the activities of the Party whose founders
had been condemned by the decision of the Supreme Court of
20 April 1921 for attempted high treason ; that its aim was to overthrow the Constitution and the system.of public order in force ; that
it was organised with a view to the achievement of this aim when
occasion arose ; that it had therefore prepared high treason. On these
grounds the Court of Appeal sentenced the accused to imprisonment 1 ,
and, under sections 21 and 23 of the Act on associations, pronounced
the dissolution of the Socialist Labour Party (decision of
20 June 1924).
An äppealwas lodged against this" decision, but,pending the final
judgment, the Government gave it practical effect, with results of
considerable importance for the status of trade unions. Even in 1923
it had decided, on the basis of the information collected by the political
police service, to order the provincial governors to take the necessary
steps for preventing criminal activity on the part of organisations
affiliated to the Communist Party. After the decision of the Court
,of Appeal, the Government went further, and issued an order to the
governors based on section 21, subsection 3, of the Act on associations,
to put a complete stop to the activities " of all the associations,
organisations, committees and other organs of the Party " until the
Supreme Court had decided on their case. (Circulars of the Ministry
of the Interior of 4 June, 9 and 25 September 1924). Although the
decision of the Court of Appeal had not expressly mentioned the
various bodies considered as belonging to the Party, the Government
1
189 persons were sentenced, including a certain number of trade
union officials acting as members of the Communist Party.
584
FREEDOM OF ASSOCIATION
held that they were specified in the rules of the P a r t y itself. T h e s e
organisations included several hundred trade unions 1.
T h e consequent situation is clearly indicated by the Parliamentary
debate w h i c h took place soon after the measures taken by the executive
authorities. On 24 October 1924 the Social-Democratic Parliamentary
G r o u p , supported by the group of " workers and small farmers " 3 ,
introduced the following interpellation :
Has the Government taken, or does it propose to take, measures :
(1) With a view to restoring their rights to the workers' organisations whose liberty of action has been violated ?
(2) With a view to safeguarding in future the exercise of the freedom of association, assembly and speech ?
Several examples of the violation of freedom of association were
quoted in t h e m e m o r a n d u m attached to this interpellation and during
the Parliamentary debate on 4 November 1924, T h e principal feature
of the cases cited was that the activity of a local trade union had been
arbitrarily interfered with or suspended by t h e authorities either
because it belonged to the Communist P a r t y or because of its membership of the Confederation of T r a d e Unions, which had been deemed
by t h e authorities to be an organ of the Communist P a r t y 3 . Accordi n g to the interpellator neither the Confederation nor t h e trade unions
in question had ever belonged to the Communist P a r t y , and even if
they had, the administrative authorities would not have had the right
to interfere w i t h their activities, for as practically all of them were
registered associations, they were not, and could not be, covered by
the decision of the Court. Special proceedings ought to have been
instituted against each one of them.
I n their reply, the Government and the groups supporting it
admitted t h a t the authorities had interfered with the activities of the
trade unions, b u t maintained t h a t this was justified by the fact t h a t
these unions were the organs of the Communist P a r t y , to which t h e y
paid contributions or from which they took instructions. Although
1
According to a statement of the Ministry of the Interior of
20 Nov. 1924, the number of trade unions "which in some form cr other
had joined the Communist Party or supported it " was 288.
2
The Communist elements took part in the 1924 General Election
under the name of the " Electoral Union of Workers and Small Farmers ".
3
During the debate one of the members, a trade union official,
asserted that the authorities had interfered with the activities of over
400 trade unions. Most of the cases related to refusal to allow the
organisation of fêtes or other public demonstrations.
FINLAND
385
the activity of the unions was protected by the law, and even, in
some measure, internationally, those which had become organs of
the Communist Party, a Party condemned as illegal by the Supreme
Court, could not be protected only because they had joined the
Confederation of Trade Unions. The Government could not sanction
the abuse of the right of association and assembly as enjoyed by
law-abiding citizens 1. .
The debate showed that the controversy rested ultimately on a
point of law. The question was primarily whether the decision of the
Court of Appeal justified suspension of the activity of registered trade
unions considered as organs of the dissolved Communist Party. This
question was settled in the negative by the Supreme Court,
which, while confirming the decision of the Court of Appeal, made it
clear that the pronouncement of dissolution referred only to the Party
itself, its council and executive committee, the individual organisations of the Party (including trade unions) not having been heard
during the proceedings (decision of 16 March 1925).
In consequence of this decision, the Ministry of the Interior
informed the provincial governors that the Chancellor of Justice
(Oikeuskansleri-Justitie-kansler)
had been instructed by the Government under sections 21 and 34 of the Act on associations to institute
proceedings against the local branches of the Communist Party with
a view to their dissolution, and asked them to take the necessary steps
to facilitate this action (Circular of the Ministry of 6 May 1925).
This Circular also mentioned a certain number of trade unions. Now,
as has already been explained, in the Parliamentary debate of
November 1924, members speaking for the unions formally declared
that the trade unions in question were not Communist organs, but
the Government asserted the contrary on the ground that the
unions had paid contributions to the Communist Party 2 . Moreover,
as soon as the proceedings against the Communist Party had begun,
the executive committee of the Confederation of Trade Unions had
issued a circular on 19 October 1923 instructing trade union organisa1
The Government in power obtained a vote of confidence. Cf. Eduskunnan pövtäkirjat 1Ç24 vuoden valtiopäivillä, pp. 701-754.
2
. This difference of opinion was largely due to the fact that the
unions included both Social-Democratic and Communist members. They
had, as a matter of fact, collected contributions for the Comm'unist
Party but only from their Communist members, the remaining members
having paid contributions to the Social-Democratic party. Cf. Industrìtidningen, 1923, No. 22, p. 359.
Freedom of Association
2
386
FREEDOM OF ASSOCIATION
tions to break off all connection with political parties. T h e situation
of the trade unions t h u s remained more or less ambiguous.
T h e question was settled by the Chancellor of Justice in Circulars
and Decrees defining the competence of t h e executive authorities in
this respect. H e drew a distinction between political organisations
proper, against which proceedings should be taken, and other
organisations, including the trade unions, which had been in touch
with the Communist P a r t y (Circular of i-8 May 1925). T h e legal
position of the latter was interpreted by the Chancellor of Justice in
the following manner.
(1) No decision has been taken under which a trade union which has
belonged to the Communist Party can be dissolved or its activities
suspended.
(2) There are no sufficient grounds for bringing an action for the
dissolution of organisations formed principally for trade purposes which
have belonged or paid contributions to the Communist Party at the time
when this body was tolerated, in view of the fact that during that time
it was not considered a danger to public safety, and that subsequently
the unions have ceased to be members of the Party owing to the very
fact of its dissolution.
(3) There is no reason to inteifere with the organisation of public
fêtes and demonstrations by the trade unions under the Decree of
20 May 1924 or police regulations, for the simple reason that these trade
unions have belonged or paid contributions to the Communist Party.
(4) There is no occasion to institute proceedings against the trade
unions with a view to their dissolution except in cases where sufficient
proof has been obtained that they have engaged in similar activities to
those of the dissolved Party. (Decrees of the Chancellor of Justice of
20 and 29 June 1925.)
T h e principles t h u s laid down by the Chancellor-of Justice have
left a loophole for the dissolution of trade unions for political reasons.
I n a recent case, use was in fact made of this possibility.
I n F e b r u a r y 1926, the Governor of the Province of Vasa instituted
proceedings against seven trade union organisations accused of h a v i n g
joined a n d paid contributions to the Communist Party, and the Confederation of T r a d e Unions, an organ of the Communist Party ; of havi n g voted in favour of t h e affiliation of the Confederation to t h e R e d
International, of having collected funds for the assistance of prisoners
a n d the starving in Soviet Russia, etc. T h e competent court (the
Vasa Municipal Court) held t h a t it h a d been proved that six of these
unions h a d acted as organs of the dissolved Communist P a r t y , a n d
accordingly pronounced their dissolution under the Act on associations
(decision of 4 A u g u s t 1926). I n a speech at the Swedish T r a d e
Union Congress on 29 A u g u s t 1926, the President of the F i n n i s h
Confederation of Trade Unions referred to this decision and maintained
FINLAND
387
t h a t as the grounds for it were very weak, t h e case w o u l ä be t a k e n to
the Court of Appeal x .
I n a general way, however, it may be stated t h a t the Decrees of
the Chancellor of Justice have m e a n t a considerable relief to the trade
unions from the point of view of their legal position. Complaints of
infringement of the freedom of association have practically come to
a n end.
1
Cf. Svomen Ammattijärjestö,
1926, No. 9, p. 153. l u March 1927, the
Court of Appeal confirmed the decision of the Vasa Court.
CHAPTER JIT
LEGISLATION CONCERNING THE ACTIVITIES OF
TRADE ASSOCIATIONS
§ 1. — Trade Associations and the Administration of
Labour Legislation
The influence of trade associations is felt in many social and
economic fields. Reference should first be made to the functions
given to associations under public law. Labour legislation in Finland
recognises, in the first place, that both employers and workers have
the right to be represented in the institutions responsible for the
administration of such legislation, and secondly that trade associations
have the right to represent the interests of workers and employers
before the State.
Further definition, however, is called for here. When the public
authorities were required to consider the question of trade representation by associations, they frequently found that- the trade associations,
particularly those of the workers, were still comparatively undeveloped
in Finland, and that therefore they could not be given very wide
functions. This official view was very clearly brought out in the
proposal introduced in Parliament by the Government in 1921 on the
subject of the Washington Draft Convention concerning hours of
work. Among the reasons given by the Government and accepted by
Parliament for not ratifying the Convention, the following was
considered of particular importance :
The application (of the Draft Convention) to present conditions in
Finland meets with technical difficulties. This applies in particular to
the participation of trade organisations in the regulation of the hours
of work. The Convention confers on all these organisations not lmerely
advisory powers, but also, in certain cases, a right of decision . .'.
1
This refers to Articles 2 and 5 of the Convention.
FINLAND
389
There can be no question, however, of assigning to our weak and divided
trade organisations, administrative functions comparable to those given,
for instance, to the English trade unions 1.
For this reason,, labour legislation, as a rule, allows the
representatives of workers and of employers to act only in a n advisory
capacity in social affairs. Their representation takes one of three
different forms : (1) official trade associations ; (2) the participation
of employers a n d workers in State administrative institutions ;
(3) the-practical organisation of the system of voluntary unemployment insurance.
Before the war, t h e . S t a t e tried to organise trade representation
through official associations. T h e 1879 Act on industries provided
for the creation of official trade societies, whose d u t y it would be
to watch over the interests of industry, handicrafts, a n d commerce
(sections 23 to 27). These provisions are still in force and the crafts
societies, which have formed a general federation, are still active,
although in practice their importance is slight 2 . T h e question of
setting u p joint trade delegations to take t h e place of the trade societies
and to represent employers and workers before the State, has been
discussed on various occasions, but at present it m a y be said that the
idea has been given up altogether b .
Labour legislation has been reformed in almost every part since
1917, a n d in its new form it provides for the participation of the
employers and workers in administrative a n d social affairs, so that
" the employers' and workers' organisations may be in a position to
keep in touch w i t h a n d share in the work of t h e Ministry of Social
Affairs " 4 .
At first employers a n d workers were each represented in the
Social Board (Decree of 18 December 1917, section 15) by a " social
delegate " whose duty it was to take part in t h e discussion and
examination of all important questions (decree of 19 A u g u s t 1918
concerning social delegates, section 1). Later, these delegates were
transferred, w i t h the Social Board, to the Ministry of Social Affairs
(Decree of 20 December 1922). I n practice, t h e delegates represent
the Employers' Central Federation and the Confederation of T r a d e
Unions respectively.
1
Compare 1921 Vuoden Valtiopäivät, Esitys No. 44, pp. 2-3.
Valtiotieteiden käsikirja, "Vol. I l l , p. 640.
-1 In 1913 an Act for this purpose was passed by Parliament, but it
was not sanctioned. Cf. FORSMAN and others : Conditions sociales en
Finlande, p . 32.
4
Ibid., p. 17.
2
39°
FREEDOM OF ASSOCIATION
Employers and workers are generally represented on the
administrative committees of the employment exchanges, which the
communes are bound to set up under the Decree of 2 November 1917.
This practice has been confirmed by the Act at present in force, in
conformity with the international Conventions concerning unemployment and the placing of seamen, which have been ratified by Finland.
According to this Act, the administrative committees of the official
employment exchanges must comprise an equal number of representatives of employers and workers (or shipowners and seamen) elected
by the communal council after consulting the employers' and workers' organisations (Employment Exchanges Act of 27 March 1926,
section 6). The Insurance Council responsible for administering the
Accident Insurance Act includes four employer and four worker
members (Insurance Councils Act of 17 July 1925, section 2), who
are appointed by the Council of Ministers from lists of candidates
submitted by the central organisations of employers and workers
(Instructions of the Insurance Council of 17 December 1925, section 19). Similarly, the permanent committee responsible for
administering the Act on accident insurance in State employment,
includes a representative of the workers (Resolution of the Council
of Ministers of 17 December 1925, Article 1).
The factory inspectors are assisted by worker inspectors, and
the workers of the district concerned have the right to give their
opinion on the appointment of these worker inspectors through the
medium of the trade union (Factory Inspection Act, and Decree
concerning the administration of that Act of 4 March 1927). Finally,
trade associations have been represented in the official committees
responsible for examining and preparing questions of social policy.
The part played by trade associations in another branch of social
legislation is more important, namely, that of unemployment insurance, which in Finland is organised on the " Ghent system ". Under
the law at present in force, the unemployment funds subsidised by
the State may either form independent societies or institutions, or
belong to associations formed for other purposes. In the latter case,
the administration and accounts of the funds must be kept separate
from the other business of the association (Decree of 2 November 1917
on unemployment funds, section 1).
In practice, all the funds at present in existence are formed by
trade unions in the different industries. These funds also grant unemployed workers travelling allowances, in accordance with the
provision made by the Government for facilitating workers' journeys
FINLAND
39I
at State expense (Resolutions of the Council of Ministers of 8 November 1918 and 19 February 1920). The resources and benefits of
these funds are, however, very small.
Like the unemployment funds, mutual benefit societies may either
form independent institutions or belong to associations for other
purposes (Decree of 2 September 1897 on workers' mutual benefit
funds, sections 1 and 7). In practice, however, they are independent
institutions which are not in touch with the trade unions.
§ 2. — Trade Associations and Regulation of the Conditions
of Work
The influence of trade associations is strongest in the direct
regulation of relations between employers and workers. As regards
the peaceful settlement of such relations, Finnish law, far from limiting the powers of trade associations in this field, restricts individual
liberty in favour of the associations. Under the law at present in
force, the latter are given, certain functions with respect to (1) the
conclusion of collective agreements ; (2) the settlement of labour
disputes ; (3) the representation of the interests of workers in
undertakings by " workers' delegates ".
_In_a general way, collective agreements undoubtedly form the
most important means for the direct regulation of the conditions of
work by employers and workers. The conclusion of such agreements
implies the existence of strong trade unions, as well as their recognition by employers, conditions not very well fulfilled in Finland.
Compared with the organised employers, the workers' organisations
have not usually been very strong. Although the trade union federations included the conclusion of collective agreements in their programme 1, they have not always had the necessary influence over
their members and workers in general to gain approval of their
tactics 2. But on the other hand it should be observed that Finnish
employers, as a rule, desire to settle their relations with the workers
" without the intervention of a third party ", and refuse to recognise
1
For several years, the federations were even against the conclusion
of collective agreements (see Chapter I, § 3), but since 1925-1926 this
negative attitude has been abandoned. Cf. Työväen Tietokirja, p. 14 ;
SüOMEN AMMATTÌ JAR JESTÖ, Toimintakertomv.s Vol. 1925, p. 54.
2
Cf. LAINVALMISTELUKITNTA : Ehdotus laiksi työehtosopimuksesta, •
p. 16.
39 2
FREEDOM OF ASSOCIATION
the workers' unions. I t follows that t h e employers' federations do
not generally approve of t h e regulation of conditions of work by
collective agreements, a n d that some of t h e m even expressly forbid
their members to conclude such agreements 1.
I n these circumstances, it is natural that the system of collective
agreements is far from having reached t h e level of that of most other
countries ". Moreover, before 1924, the law with respect to collective
agreements had not been defined either by legislation or by t h e
courts 3 .
N o w , however, legislation h a s been passed concerning collective
agreements with a view t o defining their legal status and thereby
promoting their conclusion. T h e principle of t h e new A c t is " t o
m a k e use of the existence of trade associations to serve t h e ends of
the legal stability " of conditions of work, and while respecting
freedom of association, to enlarge collective powers a n d responsibility 4 .
T h e Act on collective agreements promulgated on 22 March 1924
recognises the competence of one or more employers to conclude an
agreement for the one part, reserving this power for the other part to
one or more registered associations of workers (section 1 ) . T h e
agreement is binding not only on t h e employers and associations which
have concluded it, a n d which are, or were during t h e period of t h e
operation of t h e agreement, members of associations parties to it,
but also on workers entering t h e employment of employers bound b y
the agreement, in so far as t h e conditions covered by it a r e concerned
(section 4 ) 5 . Moreover, the fine payable, unless otherwise provided
by the agreement itself, in the event of a collective breach of the
agreement, may be imposed on a n employer of the association party
to t h e agreement, b u t not on a n individual worker (section 9 ) . A s a
1
Cf. Industritidningen,
1926, No. 5, pp. 57-58 ; No. 8, pp. 114-115 ;
No. 13, pp. 178-179.
2
Collective agreements have been concluded • only in smaller
industries, and their number has fallen, as will appear from the following
figures :
Year
Agreements
Workers
1907
1914
1921
3
196
207
132
'
19.800
20.500
14.000
In a case concerning the application of a collective agreement, the
court even denied that the union had the right to sue the employer in
the name of the workers. LAINVALMISTELUKUNTA, op. cit., pp. 11, 12, 15
4
Ibid., pp. 22-24.
5
On the other hand, the Act rejects the possibility of declaring a
collective agreement binding on all employers and workers in a particular
industry.
FINLAND
393
rule, an association party to an agreement may act as plaintiff or
defendant in actions brought in the event of a collective breach of the
agreement, either on its own account or on behalf of its members, and
as plaintiff on behalf of workers not belonging to the association in
respect of whom the employer is required to observe the provisions
of the agreement ; an employer, on the contrary, who is party to an
agreement acts in person (section 12) *.
It will be seen that the Act makes the trade associations responsible for maintaining and developing the system of collective agreements, and that it has even given them powers extending beyond the
organisation itself 2 .
In the second place, the trade associations have an important duty
as regards the peaceful settlement of disputes between employers and
workers. Although on the one hand the associations may be better
prepared than individual employers and workers to uphold the
interests they represent, and may thus aggravate the disputes, on the
other hand, they form an effective means of preventing differences
from becoming open disputes, and, in the event of an open dispute,
of conciliating the parties. In Finland, the system of recourse to
arbitration and conciliation in labour disputes was introduced by the
trade associations in the collective agreements concluded before the
war.
Provision for conciliation has also long been found in the law.
The 1879 Act on industries provided that the delegates of the trade.
societies might co-opt worker delegates for the' settlement of labour
disputes with a view to conciliating the two parties (section 26).
Similarly, the old instructions of 1889 to factory inspectors required
them to act as conciliators in disputes. Finally, the work of the
official conciliation was placed in the hands of the Social Board in
1917 and the Ministry of Social Affairs in 1923. In practice, however,
the provisions of the Industries Act, although still in force, have lost
all importance ; the duty of the factory inspectors to intervene in
disputes has been withdrawn ; and the work of the Ministry of
Social Affairs has been limited in a few cases of special importance 3 .
A permanent conciliation institution was set up by the Act of
21 March 1925 on conciliation in collective labour disputes, as
1
If an employer or worker bound by an agreement intentionally
commits a breach of its terms, such employer or worker must act in
person as defendant (section 12, subsection 3).'
2
KoTONEN : Työehtosopimuslaki, pp. 9-10 and 18-22.
3
FORSMAN, op. cit., pp. 30-31.
FREEDOM OF ASSOCIATION
394
supplemented by a Decree of 21 December 1925. This Act completely
set aside the system of compulsory arbitration and conciliation
proposed in previous schemes. According to the Act, the conciliators
appointed by the Government may not intervene in disputes unless
requested by one of the parties, or a trade organisation, if a certain
number of the persons involved in the dispute belong to the
organisation. They may not intervene on their own initiative unless
the dispute is of such a size or nature that the stoppage of work
caused thereby may endanger public interest. If the parties have
agreed to set up a special body for conciliation, the official conciliator
must not intervene unless both parties request him to do so or the
special body has failed in its work (section 4). The workers must
be " duly represented " during the negotiations. They are represented
by a trade organisation if the latter is entitled by law to sue in the
courts or in arbitration proceedings on behalf of the workers in its
own name. Further, if some of the parties to a dispute belong to
another trade organisation, the conciliator may enter into communication with that organisation or the one to which it belongs, and may
permit it to take part in the negotiations (section 7). These provisions show that the new system of official conciliation provides for
the effective participation of trade associations. In practice, the part
reserved to them may become the principal factor in conciliation.
As a third form of peaceful, activity for trade associations,
reference has been made to the representation of the workers in
industrial undertakings. As a matter of fact, this representation is
still on a very small scale. On the initiative of the trade unions, the
workers employed in some undertakings have appointed one or more
delegates to represent their interests, but no provision for this institution has yet been made by law. On the other hand, the system of
workers' delegates is recognised and covered by certain passages oí
labour legislation 1. For instance, at the request of the workers
the employer must submit to their delegates a monthly extract from
his accounts concerning overtime and overtime-pay (Eight Hour Day
Act of 27 November 1917, section 7). Similarly, he must submit
his proposed workshop regulations either to a joint meeting of the
workers, or to the workers' delegates, whose opinion must be attached
to the proposal when it is referred to the Ministry of Social Affairs
for approval (Act of June 1922 on workshop regulations (section 7).
1
Cf. Valtiotieteiden käsikirja, Vol. IV, pp. 160-161.
FINLAND
395
Finally, the factory inspectors must submit an extract from their
report on the results of their inspections, not only to the employer,
but to the workers' delegates (Act of 4 March 1927 on factory
inspection).
The rights of the workers' delegates are thus altogether limited,
and in general it may be said that the representation of the workers
in the undertakings is still in its infancy 1.
§ 3. — Trade Associations and Collective Labour Disputes
In addition to the peaceful measures reviewed above, trade
associations may have recourse, for the protection of their interests,
to militant action, the ultimate form of which is the voluntary
declaration of a temporary stoppage of work to enforce a demand,
or in other words the organisation of a strike or lockout.
Although the existence of trade associations is not a necessary
condition for labour disputes, the practical importance of the latter
is the outcome of the growth of the unions, whose aim it is to
represent the often contrary interests of workers and employers. The
history of trade associations in Finland shows in fact that the prime
motive for forming associations has been to strengthen the position
of workers and employers in strikes and lockouts. It is t r i e that
the associations have not directly aimed at declaring and directing
strikes ; the Confederation of Trade Unions for instance advocated
before the war the conclusion of collective agreements and the settlement of disputes by conciliation and arbitration, and the principal
trade organisations have tried to persuade the two parties to accept
peaceful negotiations. But when the unions are unable to obtain
satisfaction by this means, they have recourse to strikes and lockouts.
The organisation of disputes and the consequent assistance for the
workers involved form an important section of the rules of the
Confederation of Trade Unions (Article 8 of the Rules of 1912,
Articles 9 and 10 of those of 1923). For many years labour disputes
have absorbed more than half the expenditure of the workers'
organisations. Similarly the employers' associations, which describe
themselves as " organisations for defensive purposes ", have accumu-
1
Proposals for setting up works' councils have recently been
introduced in Parliament but have not yet been discussed.
396
FREEDOM OF ASSOCIATION
lated large strike insurance funds, to which in certain organisations
all members m u s t belong \
T h e position of t h e F i n n i s h law with regard to collective labour
disputes is determined b y two factors : in t h e first place, b y t h e
freedom of association, which implies for employers a n d workers t h e
right to protect their interests even if this means a stoppage of w o r k ;
and secondly, b y t h e general interest, which must always suffer from
labour disputes.
T h e right to strike or to declare a lockout is the direct result of
the general freedom of assembly and association. I t is moreover
implied in existing labour law, particularly in t h e A c t on conciliation
in labour disputes, b u t it is not expressly guaranteed in a n y legal
text. On the contrary, in some respects its exercise is limited b y law.
These restrictions originate partly from t h e law of contracts a n d
partly from the requirements of public order.
T h e maintenance of industrial peace was one of the considerations
that led t o the promulgation of the A c t of 22 March 1924 on collective
agreements. T h e first aim of t h e A c t was to make t h e period for
giving notice of t h e cancellation of an agreement long enough ; if
the agreement is concluded for an indefinite period, three m o n t h s '
notice must be given in the absence of any agreement to t h e contrary.
T h i s holds also, unless otherwise agreed, for collective agreements
concluded for a specified period which continue to be applied beyond
the agreed period or wnich are n o t denounced within t h e fixed period
(section 3 ) . T h e declaration of a strike or lockout which does n o t
observe t h e specified period of notice constitutes a " collective
breach " of t h p agreement. I t is t h e strict d u t y of t h e parties t o t h e
agreement to avoid strikes a n d lockouts, as will appear from t h e following passage.
Section 8. — A collective agreement shall bind the associations and
employers who are party thereto to refrain from all hostile action directed
against the agreement either as a whole or in respect of particular provisions thereof. Further, the associations which are parties to the agreement shall see that their members likewise refrain from such action and
that they do not contravene the provisions oí the agreement in any other
manner.
T h i s provision tends to limit t h e freedom of employers a n d trade
1
See PAASIVUORI and K A R I , op. cit., V, pp. 178-180 and 458-477.
SUOMEN AMMATTIJÄRJESTÖ : VII, edustajakokouksen
pöytäkirja, pp. 200-
203. Valtiotieteiden käsikirja,
1926, No. 5, pp. 57, 71-76.
Vol. IV, p p . 170, 221.
Industritidningen,
FINLAND
397
associations, a n d makes t h e latter primarily responsible for the
maintenance of industrial peace. I t should be remarked, however,
that the obligation of the contracting parties to avoid collective
disputes is not absolute, b u t relates only to the matters covered by
the agreement. Moreover, t h e liability of trade associations with
respect to contraventions b y their members is only relative. T h e
legislature considered that t h e existence of strong trade associations
was an indispensable condition for t h e conclusion of collective agreements, as well as constituting a guarantee of industrial peace. I t
therefore held it inexpedient to impose too great a responsibility on
the associations, as this m i g h t considerably hamper their activities *.
T h u s , while compelling trade associations to see that their members
observe the provisions of t h e agreement, the Act reduces this obligation by the provision concerning the effects of failure to observe the
duties defined in section 8. T h e s e effects are specified in t h e following section.
Section 9. — Associations and employers, being parties to a collective
agreement, who fail to perform the duties mentioned in section 8 which
are incumbent upon them under the agreement shall be liable to a fine
by way of damages to the other parties to the agreement, in default of
any provision to the contrary in the agreement itself. Such fine shall
not exceed 100,000 marks.
A s this section provides that t h e contracting parties may adopt
provisions to t h e contrary in the agreement itself, it depends
primarily on the terms of t h e agreement whether a contravention of
its provisions shall be subject to penalty, and whether t h e trade
associations shall be responsible .also for breaches of the agreement
by their members.
T h e compensation provided for in section 9 is a compromise
between a fine and legal damages 2 . T h e a m o u n t of t h e fine is
determined, according to t h e Act, w i t h d u e regard " to all t h e
circumstances of t h e case, and in particular to t h e extent of t h e wrong
and the degree of culpability ". I n no case is it paid to t h e State,
b u t " it shall be paid to t h e persons who suffered wrong in case of
pecuniary loss, b u t in other cases to t h e party on whose complaint
the verdict is given " (section 10). T h u s , if t h e general interests of
the trade association are injured, it receives partial compensation.
1
KoTONEN, op. cit., pp. 32-34.
This form of compensation is similar to that provided for in the
Danish Arbitration Act of 1910 (Bod).
2
398
FREEDOM OF ASSOCIATION
It was observed above that the Act limits the right of strike and
lockout only with regard to a collective agreement as a whole or its
separate provisions. It follows that the Act on collective agreements
allows strikes and lockouts declared in support of demands in other
matters. For instance, if a collective agreement governs only wages,
a strike organised for the determination of hours of work is allowed,
unless otherwise provided in the agreement itself.
Similarly
sympathetic strikes and lockouts are not subject to the Act on
agreements 1.
The right to organise labour disputes not contrary to the provisions of the collective agreement is limited, however, under the Act
on contracts of work promulgated on i June 1922.
Before this Act came into force the provisions of the law concerning breacli of contract and stoppages of work were fairly strict. By the
Act of 1865, agricultural domestic servants were bound to remain in
their employment for a full year. The position of industrial workers,
as governed by the Order of 1879, was more favourable, for they
were only bound for the duration of their contract of work. But a
voluntary stoppage of work provoked by the workers, whether
industrial or agricultural, was punished in both civil and criminal law :
the worker was not only liable to pay damages, but also a fine.
Moreover, his employer had the right to apply to the police and the
administrative authorities at the worker's expense, to compel him
to resume his service. In the event of a lockout contrary to the
Industries Act, the employer was similarly liable to pay damages and
a fine 2.
During the last few years the Domestic Servants Act has governed
only a minority of agricultural workers, just as the provisions of the
Industries Act have applied only rarely, for those relating to notice
of dismissal were either expressly omitted from the contract of work
or simply ignored 3 .
The new Act of 1922 on contracts of work covers all workers,
agricultural and industrial. It rests to some extent on the same
principle as the Industries Act, but differs from the latter in several
important respects. A declaration of a stoppage of work is of course
allowed, on condition that due notice is given by the party taking
1
2
KOTONEN, Op. Cit., p p . 3O-3I.
Cf. FORSMAN, op. cit., p. 24
; MoRiNG : Sitomen työväenlahisää-
däntö, pp. 14-18.
:i
TYÖSOPIMUSKOMITEA : Mietintö, No. r, p. 23.
FINLAND
399
the intitiative. Unless stipulated otherwise, the term of notice is
held to be equal to the period between two pay days, or if wages
are not paid at regular intervals, a period of a fortnight. If the parties
have agreed that employment may be terminated without notice,
the work must not cease before the end of the working day or shift
(section 27). In this latter case, therefore, the contract may be
cancelled from one day to another.
A voluntary stoppage of work for other reasons than those
specified in the Act (various cases of faults on the part of the worker
or employer) constitutes a breach of the contract if due notice is
not given ; as under the new Act the contract of work is considered
a civil contract, the breach of its provisions can no longer be punished
by a fine, but merely entails the payment of damages for the injury
caused (section 33).
These provisions cover the large majority of manual and
intellectual workers, but there is one group of workers whose contract
of work is subject to special regulations and who are therefore placed
under a stricter system, namely, seamen. The Seamen's Act of
8 March 1924, which corresponds to those of the Scandinavian countries, first of all limits the power to cancel the agreement. If the
agreement is not made for a specified period or does not fix the
period of notice, a period of one week is considered to be the period
of notice for seamen ; if the agreement expires during the voyage,
it nevertheless remains in force until the ship arrives at the next
port, and if the seaman is Finnish and engaged in Finland, until it
arrives in a Finnish port (sectons 12 and 13). Strikes are allowed
provided the agreement is cancelled in due form, but for as long as
it remains in force the seamen are bound to obey the orders of their
superior officers (section 50). They must report for service on board
at the time specified for this and may not leave the ship without
permission (section 51) ; in the event of disobedience, the police
authorities may be called upon to take action against them (section 52), or they render themsp?ves liable to a loss of their wages
(section 62), or to a fine or imprisonment (section 77I.
The right of strike or lockout, being simply an application of
the freedom of assembly and association, is naturally subject to the
provisions of the criminal law and the measures taken for the
maintenance of public order, one of which relates directly to strikes.
As the success of a strike depends very largely on the fact that the
employer finds it impossible to obtain labour, the organisers of the
400
FREEDOM OF ASSOCIATION
strike are naturally tempted to prevent unorganised workers from
working. Now, any use of violence or intimidation as against such
workers was forbidden already by the old Industries Act, and still
is by the Act on contracts of work :
Section 35. — Any person who by violence or threats forces or
endeavours to force an employer to suspend work or to dismiss or refrain
from engaging any worker, or a worker to take part in a stoppage of work,
or prevents such person from working, shall be liable to the penalties
specified in Chapter 25, section 12, of the Penal Code.
The section in question of the Penal Code provides that any
person who, without a legal right to do so, compels another to perform,
tolerate, or refrain from a given action shall be punished by a fine
or imprisonment. The bringing of pressure to bear on an unorganised
worker, with a view to making him take part in a strike, is the only
act deemed to be an offence under the Act on contracts of work.
It should be noted, however, that, contrary to the general
principle of the Penal Code, the Public Prosecutor cannot institute
proceedings in respect of the offences in question unless the plaintiff
notifies the offence for action (Act on contracts of work, section 41).
Strikes and lockouts may also be prohibited if they are contrary
to the law and morals in general. Among the different cases which
may come under this head, political strikes at present form the most
important group. In view of the relations that existed between
certain trade unions and the Communist movement, the authorities
held certain strikes to be revolutionary in aim, and contrary to the
provisions of the Penal Code, in particular those relating to attempted
high treason. The most important case was that of the Trade Union
Organisation of the Northern District already discussed above 1 . On
the other hand, it should be recalled that in this case the strike as
such was not included among the counts of indictment, but merely
that the intention of its organisers, and the methods used in
preparing it, were held to indicate the revolutionary nature of the
organisation in question.
The exercise of the right to strike may finally be limited by the
requirements of public safety. This is in fact the case as regards
officials. According to Finnish administrative law, the engagement
of an official is a one-sided act on the part of the public authorities
implying the consent of the person concerned. The duty of an
1
See Chapter II, § 3.
A01
FINLAND
official to perform his service a n d obey his superior officers is laid
down in the Penal Code (Chapter 40, sections 20 and 21). Officials
cannot therefore enjoy the right to strike 1. But they have organised
trade associations whose activities are not unlike those of the trade
unions 2 .
I n this connection it m a y be of interest to note that the question
of e x t e n d i n g the prohibition of strikes to certain groups of manual
workers has been under discussion. I n a Bill on labour disputes
submitted to Parliament in 1920, t h e Government proposed t h e introduction of compulsory arbitration for the settlement of disputes in
" work where a dispute may substantially injure the public interests ".
T h i s work of public interest was defined as all services connected
with the maintenance of order, communications, and roads on t h e
one hand, and the food industry on t h e other. I n the explanatory
memorandum to the Bill it was pointed out that most of the services
mentioned were generally organised by the State or local authorities,
a n d t h a t consequently " the workers employed in them are on t h e
same footing as public officials, who have not the right to strike ".
I n addition the Bill contained a provision by which strikes and lockouts m i g h t be provisionally prohibited, if need be, in any industry or
trade. I n t h e name of the right t o strike the representatives of t h e
trade unions protested against this Bill 3 . I t was in fact rejected by
Parliament, and the Conciliation Act passed in 1925 makes no-provision for compulsory arbitration or the provisional prohibition of
disputes. Subject to t h e limitations mentioned above, t h e law as it
at present stands leaves the right to strike intact in every field of work.
1
STÂHLBERG, op. cit., I, pp. 171-174.
Valtiotieteiden
Vol. IV, pp. 553-555.. TYÖSOPIMUSKOMITEA, op. cit., p. 27:
2
See Chapter I, § 3.
3
TYÖSOPIMÜSKOMITEA,
Freedom of Association
op.
cit.,
pp.
4, 6, 27,
31.
Käsikirja,
CONCLUSION
The principal facts relating to the problem of the freedom of
association in Finland may now be summarised.
Owing to the intermediate position occupied by Finland, both
from the political and the social points of view, the development of
its legislation with regard to the freedom of association and trade
organisation has been subject to a variety of influences. This
diversity has made the preparation of the freedom of association very
slow, but the subsequent stages of its realisation very rapid. Each of
the three periods of development indicated above terminated in a
sudden and radical change.
From the days of Swedish rule and the constitution in 1809 of the
autonomous State of Finland in the Russian Empire until the
general strike of 1905, the system with regard to freedom of association was, in fact, a restrictive one. No doubt the individual right of
assembly and association of the workers, as of other citizens, sprang
from the Swedish common law, but it was neither guaranteed nor
protected by legislation. In the absence of legislation governing the
exercise of this right, it was limited so far as the workers were
concerned in three different ways : in the first place, by administrative
decrees and the measures taken by the authorities for limiting and
supervising the organisation of meetings and the constitution and
activities of associations ; secondly, by the Domestic Servants Act,
which strictly regulated the obligations of most agricultural workers ;
and finally by the workshop regulations imposed by employers by
virtue of the authority they enjoyed under the Industries Act. The
first trade unions organised with a view to industrial warfare remained
weak, and failed to establish their claims, among which they placed
the realisation of the freedom of association in the foreground.
The second period, which lasted from the general strike of 1905
until the end of the Russian régime in 1917, witnessed the practical
recognition of the freedom of association. The reform of the political
institutions of the country which followed on that strike, led to the
FINLAND
4O3
promulgation of the Act guaranteeing the right of individuals to
assemble and associate. This reform was, however, far from complete.
Whereas the exercise of the right of assembly was governed by the
Act, the position of associations remained, ambiguous. Moreover,
there was no change in social legislation concerning the obligations
and rights of workers as against employers. The impetus given to
the trade union movement by the political transformation led,
however, to a change in the actual position. The authorities no longer
interfered with the activities of the unions, apart from a few exceptions, the chief being the suppression of certain unions o f State
employees. Moreover, although many employers continued to refuse
to recognise the trade unions as an equal party in the settlement of
conditions of work, the provisions formerly contained in the workshop
regulations which prohibited the combinaton of the workers,
disappeared as a rule.
The third period was defined as that during which the present
system of freedom of association has been founded. One of the
features of the process, begun with the declaration of independence
of the Republic of Finland in 1917, and ending in the present system,
has been the establishment of legal protection for the right of association. Not only does the new legislation definitely guarantee the
individual freedom of assembly and association, but it also defines
the status of associations, including trade unions, which, under the
general Act on associations, enjoy legal personality and, under social
legislation, have important economic functions. Further, the trade
union movement now makes its influence felt in most fields of economic activity. The organisation of industrial workers has been
hampered, however, by a crisis engendered by the Communist political
movement. This fact has raised certain difficulties in the application
of the new legislation to trade associations.
It has been shown that the present status of trade associations is
defined by the right of assembly and association, and is subject to
the Act governing the exercise of these rights. Legally it is based
on the individual right to meet and combine, which is specially
protected by the Act of 1906 and the Constitution of 1919. So far
as it is not exercised contrary to the law and morals, it requires no
previous authorisation. More than this, so far as the workers are
concerned, according to the interpretation of the Constitution, this
right cannot be limited by the authorities nor, under the new Act
of 1922 on contracts of work, by the employers. It should be
observed, however, that although the law expressly guarantees the
404
FREEDOM OF ASSOCIATION
workers' freedom of association, it also establishes the right of
individuals not to belong to trade associations.
The second factor in the general position of trade associations
is the legal status of assemblies and associations as such. They are
specially protected by the law concerning the exercise of the freedom
of assembly (1907 Act) and of association (1919 Act). The organisation of meetings — except public festivals — and the formation of
associations for other purposes than profit are free and do not require
the previous authorisation of the public authorities. The activities
of meetings are protected by the limitation of the general prerogatives
of the authorities, and associations enjoy special protection in the
form of the official registration granted to any association which
fulfils certain formalities,. and giving it legal personality. Finally,
meetings may be dissolved by the authorities only in certain special
cases, and associations only by a decision of the competent court if
they have acted contrary to the law, or morals, or the objects stated
in their rules.
This system of general freedom of assembly and association applies
also to trade unions, which are regarded in law as associations not
run for profit. In actual fact, however, the trade unions are intended
to uphold the interests of a certain well-defined class. In Finland,
the workers' unions have always remained in touch with the political
labour movement. Now the foundation of the Communist Party in
1920 side by side with the old Social-Democratic Party led to
differences between some of the trade unions and the authorities.
It has been shown that the freedom of association suffered from the
fact that a large number of unions joined the Communist Party, which
was considered illegal, or established relations with it ; but it was
also shown that the trade unions as such have not usually been made
the subject of administrative or judicial action. Although in the
various proceedings instituted by the Public Prosecutor against the
heads and organisations of the Communist movement, many trade
union leaders were sentenced to imprisonment and the loss of their
civic rights, this was done in their capacity as members of the
Communist Party, and not as trade unionists. Similarly, the suspension of many trade unions by the authorities, or the interference with
their activities, took place because they were regarded as organs,
whether real or alleged, of the Communist Party, and not as trade
unions. This distinction, however, calls for further precision. It
should first of all be noted that the Supreme Court in a decision of
1924 allowed as one of the counts of indictment against the accused
FINLAND
405
trade union leaders, the fact that the Confederation of Trade Unions
served the aims of the Communist Party, a party which this same
Court had deemed to be illegal. But although thé Confederation
considered then that the lawful existence of trade associations was in
danger — as appears from its complaint on this subject to the International Labour Office — this decision did not result in action against
the trade unions themselves. On the other hand, the decision of the
Court of Appeal in the great Communist case of 1924 at first led the
executive authorities to impose definite restrictions on the freedom
of action of trade associations. It was established in 1925, however,
by the highest judicial authorities, the Supreme Court and the
Chancellor of Justice, that the dissolution of the Communist Party
did not ipso facto entail that of the affiliated organisations, and
further that the fact of having had relations with the said Party when
it was legally tolerated did not constitute a valid reason for dissolving
a trade union under the 1919 Act on associations, nor for interfering
with its meetings and fêtes under the 1907 Act on assemblies and
the 1924 Decree on public fêtes. Although clearly defined principles
in this matter have not yet been decided by legal practice (case of
the Vasa trade unions), it may be said in a general way that disputes
concerning the application of the principle of freedom of assembly
and association have by now been settled.
As regards, finally, the activities of trade associations, the provisions of Finnish law tend either to extend the freedom of associations
or to restrict them in the general interest.
The field of activity of trade associations has been extended in
two different directions. The law has recognised them as representing
the interests of workers and employers as against the State. The
latter has therefore tended more and more to give them the right
"to participate in the preparation and administration of labour legislation. On the ground, however, that the associations have not yet
developed sufficiently, the public authorities use them, only in an
advisory capacity, except as regards the system of unemployment
insurance, which is based entirely on trade union organisation.
The rights of trade associations have been extended in another
respect, that of the regulation of the direct relations between employers and workers. The present legislation sanctions certain of their
actions, and even grants them a certain authority over individuals.
The conclusion of collective agreements and the responsibility for
their observance are now principally in the hands of the trade
associations ; for the workers, in fact, the organisations alone have
4o6
FREEDOM OF ASSOCIATION
responsibility (1924 Act). The associations are also primarily
responsible for the peaceful settlement of labour disputes, and the
official conciliators may not intervene except at the request of the
parties (1925 Act). On the other hand, Finnish legislation contains
little provision for the representation of trade unions in the undertakings.
Whereas the freedom of action of trade associations has been
extended so far as the peaceful regulation of conditions of work is
concerned, it has been limited with respect to collective disputes. The
provisions of the law on strikes and lockouts are based on the principle
of respect for the rights of third parties. Labour disputes are directly
mentioned only in the 1924 Act on collective agreements, which
requires the associations to refrain from hostile action themselves
and to see to it that their members likewise refrain from such action.
The consequences of failure to comply with this provision are borne
by the contracting parties. The 1922 Act on contracts of work,
however, limits the right of strike and lockout indirectly ; for the
voluntary suspension of work, except in the cases expressly provided
for in the Act, is subject to the giving of notice, and a breach of
this rule involves the payment of damages. Only seamen and public
officials 'are subject to stricter regulations, owing to the special
nature of their work. Finally, the freedom of action of trade associations in labour disputes may be limited by the provisions of the
criminal law. In particular, violence and threats against unorganised
workers are prohibited.
To sum up, Finland, after having overcome the difficulties
created by political happenings, has recognised the freedom of association, and protects it as far as it is compatible with public order. Her
new labour legislation has even extended this protection beyond that
of the general right of assembly and association.
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