Ratified treaties¹

Disciplinary proceedings/ Possibility for a trade union to defend a non-member employee/ Use of international law as a guide for interpreting domestic law/ Reference to international law to strengthen a decision based on domestic law

An employee who was the subject of disciplinary proceedings failed to report to the commission in charge of labour disputes. She thought that, given the current status of the legislation in force, no trade union could represent her to defend her rights since she was not a union member. She brought an action to have the disciplinary sanctions that had been imposed on her cancelled. She considered that the fact that she could not be defended by a trade union was unconstitutional. In accordance with the worker’s request, the Court of First Instance requested the Constitutional Court, as a defense, to adjudicate the constitutionality of the Trade Unions Act. That Court first determined the capacity of trade unions to defend workers who were not union members and then proceeded to examine whether all of the provisions of the Trade Unions Act were consistent with the Constitution.

Analyzing the legislation and the Constitution, the Constitutional Court found that trade unions were authorized to represent all employees, particularly in collective bargaining, and not only their members.

The Court then relied on international law to strengthen its legal reasoning:

 “The purpose of trade unions to defend in an organized way not only their members but also all employees is also reflected by Conventions of the International labour Organization which were ratified by the Republic of Lithuania on 23 June 1994. For example, Article 5 of the 23 June 1981 Collective Bargaining Convention provides that measures adapted to national conditions shall be taken to promote collective bargaining, while the aims of these measures shall be the following: (a) collective bargaining should be made possible for all employers and all groups of workers in the branches of activity covered by this Convention; (b) collective bargaining should be progressively extended to all matters covered by subparagraphs (a), (b) and (c) of Article 2 of this Convention (i.e. in cases of determining working conditions and terms of employment, regulating relations between employers and workers, and regulating relations between employers or their organizations and a workers’ organization or workers’ organizations).”

The Constitutional Court of Lithuania then ascertained whether the other sections of the Act, which the applicant claimed provided protection only for the members of trade unions, were in conformity with the Constitution; it dealt in particular with Lithuanian legislation guaranteeing workers’ representatives enhanced protection against dismissal.

In order to assess the constitutionality of these provisions the Court relied mainly on the content of ILO Convention No. 135, thus assigning that instrument a role as a guide for interpretation; it stated the following in this connection:

 “Article 1 of Convention 135 concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking adopted by the International Labour Organization, which was also ratified by the Republic of Lithuania on 23 June 1994, reads: “Workers” representatives in the undertaking (under Article 3 of the Convention, such are also considered trade union representatives designated or elected by trade unions or members of such unions) shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed agreements.

Thus the provisions of Parts 2,3,4,5 and 6 of Article 21 of the Law on Trade Unions are in line with the requirements of the said Convention to protect the representatives of employees from the dangers which may occur in connection with their activities in the trade union.”

The Constitutional Court of Lithuania thus referred to ILO Conventions Nos. 154 and 135 to confirm that it was the mission of trade unions to defend non-member employees and to affirm that the enhanced protection provided for trade union representatives was in conformity with the Constitution.

¹ ILO Convention on Collective Bargaining, 1981 (No. 154); ILO Convention on Workers’ Representatives, 1971 (No. 135).