Workers’ freedom not to join trade unions and, once they have joined, to leave them
Freedom of association
Freedom to join trade unions
Freedom not to join trade unions
Principle of proportionality
RULING Nº 437/2000
18 of October of 2000
Freedom to belong to a trade union comprises two dimensions, one positive and the other negative. The positive dimension recognises the right of workers to form and belong to a trade union which may represent them, without obliging them to be dependent on a discretionary decision on admission by the trade union. The negative dimension guarantees the right not to be a member of a trade union and the right to leave a trade union at any time.
As well as essentially entailing protection against discrimination, the freedom not to join a trade union implies indirect restrictions, and has to be interpreted in an extensive way so as to cover direct and indirect obligations, as well as the genuine obligations of union membership and any steps taken to apply pressure which could conflict with the exercise of freedom.
The Ombudsman requested the Constitutional Court to declare unconstitutional, with general binding force, a provision in a legislative decree approved before the current constitution entered into force, which states that a worker has the right at any time to leave the trade union to which he or she is affiliated, by means of a letter addressed to the senior manager. The trade union may, however, demand payment of dues for the three months following the letter. The Ombudsman considered that this requirement restricted the freedom of workers not to join a union and, once they were union members, to leave the union, that it was not necessary for the constitutional protection of trade unions, and that it was contrary to the principle of proportionality in three respects: appropriateness, necessity and fairness.
Article 55 of the Constitution recognises freedom to form trade unions, which guarantees workers freedom of affiliation, among other freedoms; no worker may be obliged to pay dues to a trade union of which he/she is not a member.
The Court declared the rule in question unconstitutional, on the grounds that the need to fund trade unions and, thereby, the consolidation of trade union activity, is the only possible reason for the situation covered by the rule in question, while freedom of trade unions, in all its dimensions, justifies the protection of trade union activity. To require extraordinary payment of trade union dues is therefore unjustified.
This judgment also ruled that, for reasons of legal certainty, precisely because of the effect that a declaration of unconstitutionality could have on existing trade unions and the normal pursuit of their activities, it would be prudent to limit its effects. Therefore, after declaring, with general binding force, that the rule in question was unconstitutional, the judgment restricted the effects of this unconstitutionality so that they would apply only after publication of the declaration in the official gazette, except with regard to sums which had not been paid or of which payment had in the meantime been contested by the workers.