Rapport définitif - Rapport No. 69, 1963

1. 11. By a communication dated 21 January 1962 the European Confederation of Autonomous Trade Unions of Railwaymen (C.E.S.A.C.) submitted to the I.L.O a complaint containing allegations of infringements of trade union rights in France. The complaining organisation was informed of its right to submit further information in substantiation of its complaint and did so in a communication dated 26 February 1962.
2. 12. The complaint and supplementary information were forwarded to the French Government for its observations. The Government replied by a communication dated 25 October 1962.
3. 13. France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 14. The C.E.S.A.C alleges that the French National Railways (S.N.C.F.) discriminated against the National Autonomous Union of Administrative and General Service Agents (S.N.A.A.S.C.), which is affiliated with the C.E.S.A.C.
2. 15. The complainants declare that the S.N.A.A.S.C, created in November 1960, requested in a letter addressed to the Director-General of the S.N.C.F that relations be established between their organisation and the S.N.C.F. It is claimed that, at the time and in the interim, this request has been disregarded by the S.N.C.F on the pretext that the protocol of 3 June 1948 governing trade union rights and the exercise of trade union functions does not oblige the S.N.C.F to establish relations with any but the most representative trade unions.
3. 16. The complainants, however, allege that the protocol not only stipulates that there must be 50 per cent of abstentions during the first round of voting in elections of worker delegates in order for a new organisation to compete, but further that it fails to define what constitutes the most representative organisations.
4. 17. The complainants declare that, when the S.N.A.A.S.C competed in the second round of voting in the trade union elections held in March and April of 1961, it carried 25 seats for regular delegates and 50 seats for deputy delegates and that, in spite of this, it was not recognised to have representative character.
5. 18. In its reply the Government first points out that although the S.N.A.A.S.C has not been recognised as being entitled to compete in the first round of voting in trade union elections, this, contrary to the allegations of the complainants, is not because of the provisions of the protocol of 3 June 1948 but is rather based on article 9 of the Act of 16 April 1946 (as amended), which governs the status of worker delegates in undertakings, and article 10 of the Ordinance of 22 February 1945 setting up works councils. Both of these texts, it is claimed, specify that for the first round of voting each list is established by the most representative trade unions.
6. 19. The Government goes on to state that although the 1948 protocol entitles the most representative organisations in each of the categories of the general services personnel and " supervisory personnel " to designate representatives to negotiate with the managing bodies of the S.N.C.F, it could not be expected to establish criteria for recognising trade unions as representative, since these requirements are already defined by existing laws and regulations and, in particular, by the provisions of article 31 (f) of Book I of the Labour Code.
7. 20. The Government does not deny that the S.N.A.A.S.C carried 25 seats for regular delegates and 50 seats for deputy delegates on the second round of voting in the 1961 general elections; it points out that the number of seats attributed to deputy delegates is automatically twice the number of seats attributed to regular delegates. Referring to these elections, the Government states that the S.N.A.A.S.C carried no seats in elections to works councils, and that, in elections for worker delegates, the S.N.A.A.S.C obtained 540 votes, representing 0.2 per cent of all valid ballots cast (273,812) for the entire " general services " electoral body and 4.3 per cent of the valid ballots cast (about 13,000) in the few categories under which administrative agents are grouped. The Government adds that the 25 seats of regular delegates carried by the S.N.A.A.S.C represent 1.1 per cent of the total of 2,266 seats.

B. B. The Committee's conclusions

1. 21. In certain previous cases the Committee has taken the view that it was not called upon to express an opinion as to the right of a particular organisation to be invited to take part in consultative bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association, and that this was a matter to be determined by the Committee in the light of the facts of each given case.
2. 22. Moreover, as the Committee has previously observed, on several occasions, and especially when the draft text of the Right to Organise and Collective Bargaining Convention was being discussed, the Conference has had to consider the question of the representative character of workers' and employers' organisations, and has accepted to some extent the distinction which certain countries draw between various organisations according to the extent to which they are representative.
3. 23. In this connection, however, the Committee, while agreeing that a distinction may be admissible in itself, expressed the view that it is necessary that the criteria for determining such distinction shall be objective and be based on prescriptions which give rise to no possibility of abuse.
4. 24. In the present case the Committee considers that the criteria by which the degree to which organisations are representative is determined are not such as to infringe the principles of freedom of association. As defined under article 31 (f) of Book I of the Labour Code, these criteria are membership, independence, dues, the experience and date of establishment of the trade union, patriotism under occupation.
5. 25. It is particularly important to note that the membership figures and percentages mentioned in paragraph 20 above show conclusively that the organisation in question does not represent more than an infinitesimal minority of the workers concerned.