Ratified treaty;¹ Work of international supervisory bodies²

Freedom of association/ Conditions governing the modification of union statutes/ Prohibition of the requirement of prior authorization for the constitution of a union/ Direct resolution of a dispute on the basis of international law

In the exercise of a public claim of unconstitutionality, three citizens filed against articles 370 and 371 of the Substantive Labour Code (Código Sustantivo del Trabajo, CST) since they were considered to violate the national Constitution and ILO Conventions Nos. 87 and 98.

The articles subject to the claim established firstly that in order for modifications to union statutes to be valid, it was necessary that the union organization registered the modifications with the Ministry of Employment and Social Security; and secondly, that any total or partial change to the executive board of the union must be communicated to the relevant employer and labour inspector in order for the change to take effect.

The Court based its decision on the premise that, in accordance with the provisions of article 53 of the Constitution, all ILO Conventions that have been duly ratified form part of domestic law and that, in accordance with the specific case law analysis, some ILO Conventions form part of the constitutional block and are, therefore, parameters that can be used to revise the constitutionality of laws, as in the case of ILO Convention No. 87.

Therefore, the Court states:

“The exercise of union activities cannot be subject to a registration process that is equivalent to a prior control on the part of an administrative authority, which could refuse to carry out the registration. From a functional perspective, this ability would resemble a “prior authorization” for the constitution of a union, a requirement that is expressly prohibited by Article 2 of ILO Convention No. 87. In this respect, it is important to take into account that the ILO Committee on Freedom of Association has established that while some formalities must exist related to the creation of union organizations, these formalities should not represent an obstacle to their constitution […].”³

Regarding the second article in this case (article 371), the Court ruled that the requirement of informing the Ministry of Employment and Social Protection and employers of changes to executive boards of unions has the aim of public disclosure of decisions made within the organization, ensuring that these are made effective by third parties, for example in matters related to union rights:

“[…] [F]rom a perspective of the constitutional rights to freedom of association and to organize, the appropriate response is that statutory protection operates as of the first notification. Consequently, in the event that the first party to be notified was the employer, then that employer would have the obligation of respecting the trade union rights of the new leadership from the moment that they received the notification. And in the event that the first party notified was the Ministry, then the Ministry would be obliged to communicate the information to the employer immediately.”⁴

In light of the above, the Court declared the standards in question to be constitutional, but subject to two conditions: with the understanding that the communication of changes to the executive board of a union complies exclusively with the purpose of public disclosure, and that union rights are understood to operate immediately on reception of the first notification.  

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

² ILO Committee on Freedom of Association.

³ Paragraph 11 of the decision.

⁴ Paragraph 21 of the decision.