Rapport définitif - Rapport No. 77, 1964

1. 7. In a communication dated 31 October 1963 the International Confederation of Senior Officials submitted to the I.L.O a complaint against the Government of Austria for infringement of freedom of association. On 8 January 1964 the complainants presented an amendment to the original text of the complaint. Both communications - were transmitted to the Government of Austria, which replied by a note dated 10 February 1964.
2. 8. Austria 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. 9. According to the statement of the complainants, a Constitutional provision existed prior to 1962, the force of which was that staff representatives must be a certain extent participate in the drafting of regulations concerning the rights and duties of public officials. This provision was repealed. Nevertheless a circular exists, published by the Federal Chancellery in 1946, providing that the representation of the staff of public services should provisionally be entrusted to the four civil service unions then in existence. The four unions are the Union of Municipal Employees, the Union of Post Office Employees, the Union of Railway Employees and the Union of Public Employees. The complainants explain that those unions are no more than a creation of the political parties, two of which have for years been allied to the present coalition Government. The most senior trade union officers are at the same time representatives of those two parties. In view of the existing party discipline those senior trade union officers are subordinate to the Government, that is to say to the employer. The members of those unions do not in fact possess any rights-even that of electing their leaders-since the last elections in public services which took place in 1951.
2. 10. The complainants also state that in 1955 those officials who desired trade union action which was independent of the employer formed the Austrian Federation of Officials, which succeeded in 1959 in obtaining from the Constitutional Court a recognition of their right to employ the term " trade union ", contrary to the opinion expressed by the Minister of the Interior. Following the argument that the right to participation and representation of personnel has not been subjected to legal regulation, the Government refuses to permit the Federation to intervene in consultations on general staff problems, those consultations being held solely with the four recognised organisations. The only advantage which the Federation has so far been able to gain is the decision of the court respecting the right to use the denomination of "trade union".
3. 11. The documents forwarded by the complainants include two previously mentioned, the award of the Constitutional Court and the 1946 circular. In the circular the public authorities are invited to secure the participation of staff committees in framing regulations on staff questions. The committees are, in particular, to be consulted before the adoption of measures of all kinds relating to this staff ; complaints lodged on behalf of one or more public officials are to be received as well as claims of an economic or social nature, and public officials should be permitted to participate in measures to ensure hygiene in the working conditions of offices.
4. 12. In its reply the Government points out that the right of association is guaranteed both by the Fundamental State Law and the 1951 Law of Associations, and in this respect the Austrian Civil Service Federation enjoys the same rights as other organisations. The complainants apparently are confusing two separate ideas, namely the right to representation within undertakings and the right to represent the collective interests of the members of a profession through occupational organisations. The first of these rights is not included in the concept of right of association, within the meaning of the international Conventions. The Circular or " Figl Edict " mentioned in the complaint has a provisional character and refers almost exclusively to matters within the competence of staff committees and within their respective agencies. The unions mentioned in that Edict were the only ones in existence at the time of its publication. Since then one of the unions has ceased to exist as a result of a reshuffle within the civil servants' trade union movement.
5. 13. It can be gathered from the information supplied by the Government that the four unions of public employees possessed on 31 December 1963 a total of 406,820 members (of whom 75,605 were retired), and the number of public employees included in the scope of those unions numbered on that date approximately 420,000. The Austrian Civil Service Federation on the other hand has not so far published any figures showing the number of its members, but according to the available data they would be somewhere between 10,000 and 20,000. The Government explains that the members of the four unions referred to periodically elect their executive committee and indicates the dates on which their Congresses were held, all of which took place very recently (1959, 1961, 1962 and 1963). In its communication the Government encloses a copy of the rules of each of these unions.
6. 14. According to the Government the conditions of employment of public services are generally determined by legal provisions ; there is nevertheless a wide scope for collective negotiation. The conditions set by the Government for granting the power to conclude collective agreements is that the number of members and the importance of the activities of a union in the economic field give that union a representative character. So far the Austrian Civil Service Federation has not applied to have this power granted. The Government also explains that in presenting their claims the four unions mentioned can count on the support of the Austrian Federation of Trade Unions and that the central organisation forms part of the joint Price and Wages Committee and has a share in the framing of the economic and social policy of the country. Those organisations are completely independent and on various occasions have taken action as a trade union in support of their demands and have instituted numerous proceedings against the Austrian Republic and other public employers in defence of their members. Each of these unions has a headquarters and branch offices throughout the country, with a total of 246 employees. The Austrian Civil Service Federation on the other hand apparently does not devote more than one hour per week to hearing complaints from its members.
   • Allegations relating to Non-Participation by the Austrian Civil Service Federation in Consultative Bodies
7. 15. The Committee observed that in the present case the principal complaint relates to the fact that the Austrian Civil Service Federation is not recognised by the authorities for consultation in staff matters. The Government for its part maintains that the right of representation within the undertaking (and by extension within public agencies) is not included in the concept of the right of association within the meaning of the international Conventions and must be distinguished from the representation of the collective interests of the members of a profession by the appropriate organisations. In other words, the Government holds that the claim of the complainants that the Federation should be admitted to the existing consultative bodies does not find support in the international standards relating to freedom of association. As an illustration of this point the Government mentions that the number of members of the Federation does not exceed 20,000 at the most, a figure much lower than the number of members of the other associations of the staff of public services, and that the Federation is therefore entirely a minority organisation.
8. 16. In several cases the Committee held that it was not required to state its views regarding the right of a particular organisation to be, for example, invited to form part of consultative bodies, unless its exclusion constituted a flagrant case of discrimination involving the principle of freedom of association, and that this is a question on which the Committee has to decide in each particular case, having regard to the circumstances.
9. 17. Again, on various occasions, as the Committee will recall, in particular with relation to the discussion of the draft Convention on the right of association and collective bargaining, the Conference raised the question of the representative character of unions and admitted up to a certain point the distinction which is sometimes made between different unions as regards the extent to which they are representative. However, with regard to this particular point, the Committee considered that, although a distinction may be admissible in itself, it is necessary in the first place that the criteria for determining such distinction should be objective and be based on factors which give rise to no possibility of abuse.
10. 18. In a similar case connected with France, involving the problem of a trade union organisation which had been refused the right to form part of the internal bodies of a state undertaking, the Committee held that since that organisation only represented a small proportion of the workers concerned it had not produced sufficient evidence to prove that not to allow its participation in such bodies would have meant an infringement of trade union rights.
11. 19. In the present case, in view of the figures supplied concerning the number of members of staff organisations in the public services, including the Austrian Civil Service Federation, which make it possible to apply an objective criterion to determine the representative character of those organisations, the Committee considers that the exclusion of the Federation from the consultative bodies already established cannot be regarded as a flagrant case of discrimination involving the principles of freedom of association, since the Federation has clearly a minority position.
12. 20. In these circumstances the Committee considers that the complainants have not proved that there was an infringement of trade union rights and recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations relating to the Absence of Any Possibility of Action by the Austrian Civil Service Federation
13. 21. The complainants have alleged that the most that the Austrian Civil Service Federation had been able to obtain was the judicial recognition of its right to describe itself as a union. This decision has not altered the de facto situation and the Federation is still not recognised. In this respect the Committee recalls that the Government in its reply stated that the staff unions of public services do in principle possess the right of collective bargaining. The condition laid down by the law for exercising this right is that the organisation in question should be of a representative character by reason of the number of its members and the importance of its activities in the economic field. As regards the Austrian Civil Service Federation, it has not even applied for recognition for the purpose of collective bargaining.
14. 22. On the other hand, the Committee considers that the very raison d'être of a union is the defence and representation of the interests of its members, the mere possibility of legal assistance possessed by a union does not satisfy the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which in Article 2 guarantees freedom of choice for workers in the matter of joining a particular organisation and defines the term "organisation" in Article 10 as "any organisation of workers or of employers for furthering and defending the interests of workers or of employers".
15. 23. Now, according to the 1946 edict mentioned by the complainants and the Government, and which refers to the intervention of unions in matters affecting staff within a public agency, the organisations which have been recognised for that purpose would appear to be only ones who amongst other things are authorised to present complaints concerning an official if requested by him or where a measure may fundamentally affect the position of one or more officials.
16. 24. The Committee has under certain conditions accepted as a fact not contrary to the principles of freedom of association that a minority organisation may not be empowered by law to form part of consultative bodies, as we have seen above, or may not be authorised to initiate collective negotiations. Nevertheless, the Committee has also pointed out that the distinction between the most representative trade union organisations and the other organisations should not result in those trade union organisations which have not been recognised as the most representative being deprived of the essential means of defending the occupational interests of their members.
17. 25. On the other hand the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations, when analysing the trade union legislation of Denmark with regard to public officials, had observed that according to that legislation only one organisation of officials can be recognised by the Government, and that this recognition implied for the organisation concerned the right to be consulted and to form part of consultative bodies, and to negotiate. In this connection the Committee observed that if the recognition of an organisation for the purpose of representation on joint bodies or of previous consultation can be admitted in certain conditions, the fact that the law itself only authorises this recognition for one single organisation of officials and grants the right of collective bargaining to that organisation alone may in certain cases limit the possibility of action of organisations which are not recognised. Moreover, the fact that the recognised organisation is the only one which is able in practice to further and defend the interests of its members might be incompatible with the principle laid down in Article 2 of Convention No. 87, according to which the persons concerned should be able to set up such organisations as they think fit and to join the same. The Committee did not insist on this point of view when the Government stated that the organisations which were not recognised were authorised to submit petitions to the Government, although they did not possess the right of collective bargaining.