Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Hungary (Ratification: 1957)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the workers’ group of the National ILO Council at its meeting of 27 October 2021, included in the Government’s report, which relate to the issues examined by the Committee below, and the Government’s comments thereon.

Freedom of expression. In its previous comments, the Committee had noted with concern that sections 8 and 9 of the Labour Code (2012) prohibited workers from engaging in any conduct, including the exercise of their right to express an opinion – whether during or outside working time – that may jeopardize the employer’s reputation or legitimate economic and organizational interests, and explicitly provided for the possibility to restrict workers’ personal rights in this regard. The Committee considered that the above provisions impeded the freedom of expression of workers and the exercise of the mandate of trade unions and their leaders to defend the occupational interests of their members and expected that its comments would be fully taken into account in the framework of the ongoing review of the Labour Code. The Committee notes the Government’s indication that in 2019, section 9 of the Labour Code was amended to implement the European Union reform on data protection. Pursuant to the amended text, “the employee’s personality rights [including freedom of expression] may be limited only where the limitation is strictly necessary for a reason directly associated with the intended purpose of the employment relationship and is proportionate in order to achieve that objective. The employee shall be informed in advance in writing of the manner, conditions and expected duration of the restriction of the personality right, as well as of the circumstances justifying its necessity and proportionality”. The Government points out that the amendment establishes stricter conditions for the restriction of the employees’ rights, including freedom of expression set forth in Article IX (1) of the Fundamental Law. The Committee notes that the workers’ group of the National ILO Council considers the amendment to section 9 (2) of the Labour Code to be only a partly sufficient response to the observation made by the Committee. The Committee also notes that the workers’ group is of the view that section 8 (3) of the Labour Code refers to reputation and other legitimate interests of an employer as interests to be respected and not to be seriously violated in expressing opinion. The Committee notes the workers’ group of the National ILO Council’s proposal to hold consultations on necessary and proportionate limits to the constitutional right of employee’s freedom of expression with involvement of experts and social partners. The Committee regrets that the Government merely indicates that the court being the competent body to interpret the conditions regulated by section 8 (1)-(3) of the Labour Code, the aggrieved party can bring appropriate claims in cases of violation of freedom of expression. The Committee therefore urges the Government to take all necessary measures, including legislative, in consultation with the social partners, to guarantee that sections 8 and 9 of the Labour Code do not impede the freedom of expression of workers and the exercise of the mandate of trade unions and their leaders to defend the occupational interests of their members. The Committee requests the Government to provide information on all progress achieved in this respect.

Article 2 of the Convention. Registration of trade unions. The Committee had previously requested the Government to provide its comments on the observations of the ITUC and the workers’ group of the National ILO Council concerning allegations on the stringent requirements in relation to union headquarters, the refusal of registration due to minor flaws, the imposition of the obligation of including the company’s name in the official name of associations, and the difficulties created or encountered by trade unions because of the obligation to bring their by-laws in line with the Civil Code. The Committee notes with regret that the Government did not provide comments in this respect. The Committee notes that the Government reiterates the information it had previously provided on the existing legal framework for registration, and adds that from 1 June 2017 to 31 May 2021, 1,149 trade unions were registered and eight applications were rejected (three without a call for rectification due to an incomplete application, and five after the issuance of a request for rectification because the applicant did not properly comply with the court’s order within the deadline). The Committee also notes the workers’ group of the National ILO Council’s observation that the implementation of Article 2 of the Convention continues to be complicated by unnecessary requirements and that trade unions may only commence operations from the effective date of the court’s decision on registration. The Committee further notes that, while the Government indicates that the courts no longer require the fulfilment of all minor requirements for court registration, the workers’ group of the National ILO Council points out that the relevant Act has not been amended accordingly. In light of the above,the Committee is obliged to request once again the Governmentto provide its comments on the observations of the ITUC and the workers’ group of the National ILO Council. The Committee recalls that, although the formalities of registration allow for official recognition of workers’ or employers’ organizations, these formalities should not become an obstacle to the exercise of legitimate trade union activities, nor should they allow for undue discretionary power to deny or delay the establishment of such organizations. Accordingly, the Committee once again requests the Government to: (i) engage without delay in consultations with the most representative employers’ and workers’ organizations to assess the need to further simplify the registration requirements, including those relating to union headquarters; and (ii) take the necessary measures to effectively address the alleged obstacles to registration in practice, so as not to impede the right of workers to establish organizations of their own choosing. The Committee also requests the Government to continue to provide information on the number of registered organizations and the number of organizations denied or delayed registration during the reporting period, and to provide additional details on the grounds for refusal of registration so to enable the Committee to better assess the conformity of these grounds with the Convention.

Article 3. Right of workers’ organizations to organize their administration. The Committee had previously requested the Government to provide its comments on the ITUC allegations that trade union activity was severely restricted by the power of national prosecutors to control trade union activities, for instance by reviewing general and ad hoc decisions of unions, conducting inspections directly or through other state bodies, and enjoying free and unlimited access to trade union offices. The ITUC further alleged that, in the exercise of these broad capacities, prosecutors questioned several times the lawfulness of trade union operations, requested numerous documents (registration forms, membership records with original membership application forms, minutes of meetings, resolutions, etc.) and, if not satisfied with the unions’ financial reporting, ordered additional reports, thereby overstepping the powers provided by the law. The Committee notes with regret that the Government did not provide its comments on these serious allegations from the ITUC. Recalling that acts described by the ITUC would be incompatible with the right of workers’ organizations to organize their administration enshrined in Article 3 of the Convention, the Committee again requests that the Government respond to the ITUC allegations.

Right of workers’ organizations to organize their activities. The Committee had previously highlighted the need to amend the relevant laws (including the Strike Act, the Passenger Transport Services Act and the Postal Services Act), in order to ensure that the workers’ organizations concerned may participate in the definition of a minimum service and that, where no agreement is possible, the matter is referred to a joint or independent body. The Committee notes the Government’s indication that having dealt with difficulties caused by the COVID-19 pandemic, it plans to put on the agenda a comprehensive amendment of the Strike Act. The Committee urges the Government to take all necessary measures to amend without further delay the Strike Act, as well as the Passenger Transport Services Act and the Postal Services Act as per the Committee’s previous comments, and to provide information on all developments in this respect.