Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 2 of the Preamble of the
Republic of Lithuania Law on Trade Unions as well
as Part 4 of Article 10, Article 17, Part 1 of
Article 18, Article 21 and Part 2 of Article 23 of
the same law with the Constitution of the Republic
of Lithuania
Vilnius, 14 January 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Augustinas Normantas, Vladas
Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius,
Teodora Staugaitienė, and Juozas Žilys,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-Jadvyga
Andriuškevičiūtė, a senior consultant to the Law Department of
the Seimas of the Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 29
December 1998 in its public hearing conducted the investigation
of Case No. 8/98 subsequent to the petition submitted to the
Court by the petitioner-Vilnius City District Court No.
2-requesting to investigate if Part 2 of the Preamble of the
Republic of Lithuania Law on Trade Unions as well as Part 4 of
Article 10, Article 17, Part 1 of Article 18, Article 21 and
Part 2 of Article 23 of the same law were in conformity with
Article 50 of the Constitution.
The Constitutional Court
has established:
I
On 23 April 1997, the petitioner-Vilnius City District
Court No. 2-was investigating a civil case following the claim
of E. Bieliauskienė to annul a disciplinary penalty which had
been imposed on her. By its ruling the court suspended the
investigation of the case and appealed to the Constitutional
Court with a petition requesting to investigate whether Part 2
of the Preamble of the Law on Trade Unions (Official Gazette
Valstybės žinios, 1991, No. 34-933; 1994, No. 42-758) as well
as Part 4 of Article 10, Article 17, Part 1 of Article 18,
Article 21 and Part 2 of Article 23 of the same law were in
conformity with Article 50 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
On 11 February 1997, by order of the director general of
the joint-stock company Vilniaus mėsos kombinatas the plaintiff
was imposed a disciplinary penalty-severe reprimand for failing
to ensure security of entrusted material values. The plaintiff
requested Vilnius City District Court No. 2 to annul the
disciplinary penalty which had been imposed on her. On 23 April
1997, by its ruling the court suspended the case and
established time limits during which the plaintiff had to
appeal to the commission for labour disputes at the joint-stock
company Vilniaus mėsos kombinatas requesting to annul the
disciplinary penalty. As the plaintiff never appealed to the
said commission, on 20 June 1997 by its ruling the court
dismissed the civil case. On 25 September 1997, by its ruling
the Vilnius Regional Court annulled the said ruling of Vilnius
City District Court No. 2 and referred the case back to the
same court to investigate the case in essence.
In the course of the investigation of the case it became
evident that the plaintiff was basing her refusal to protect
her rights at the commission for labour disputes on the
provisions of the Law on Trade Unions which provide that trade
unions shall protect the interests and rights of their members.
Meanwhile, the petitioner was not a member of the trade union.
The plaintiff was of the opinion that even though Chapter 15 of
the Code of Labour Laws regulating the procedure of settling
labour disputes remained unchanged, it was impossible to demand
that trade unions protect the rights of someone who is not
their member.
In the opinion of the petitioner, the norms of the Law on
Trade Unions providing for obligation of trade unions to
protect their members only contradict Article 50 of the
Constitution which provides: trade unions shall be freely
established and shall function independently; they shall defend
the professional, economic, and social rights and interests of
employees.
The petitioner also maintains that all employees, and not
only trade union members, must follow the procedure of labour
disputes settling as provided for by Chapter 15 of the Code of
Labour Laws. Therefore the district court requests to decide
whether Part 2 of the Preamble of the Law on Trade Unions as
well as Part 4 of Article 10, Article 17, Part 1 of Article 18,
Article 21 and Part 2 of Article 23 of the same law is in
conformity with Article 50 of the Constitution.
III
In the course of the preparation of the case for the court
hearing, the representative of the party concerned explained in
writing that it is possible to assess the provision of Article
50 of the Constitution, whereby trade unions shall defend the
professional, economic, and social rights and interests of
employees, in its wide meaning as a definition of the purpose
of trade unions and their purpose in the public life of the
state. Trade unions have been granted the right to defend the
professional, economic, and social rights and interests of all
employees irrespective of whether they are trade union members
or not.
It is also indicated in the document that assessing the
content of the Law on Trade Unions in a formal way, it is
possible to perceive that its certain articles indicate a
narrower circle of subjects than Article 50 of the
Constitution. Part 4 of Article 10 of the Law on Trade Unions
prescribes that trade unions shall defend the labour, economic,
and social rights and interests of their members, and it is
also established that trade unions shall represent trade union
members in their relations with the employer or his authorised
representative. Part 1 of Article 18 of the Law on Trade Unions
provides that trade unions shall be entitled to demand that the
employer rescind his decisions which violate the labour,
economic and social rights of trade union members which are
established by laws. In the opinion of the representative of
the party concerned, Part 4 of Article 10 and Part 1 of Article
18 of the Law on Trade Unions contradict Article 50 of the
Constitution.
IV
In the course of the preparation of the case for the court
hearing explanations of A. Sysas, Chairman of the Alliance of
Trade Unions of Lithuania, and A. Kvedaravičius, a deputy
chairman of the Centre of Trade Unions of Lithuania, were
received.
A. Sysas, Chairman of the Alliance of Trade Unions of
Lithuania, noted in his explanation that the freedom of
citizens to form associations is established by Article 35 of
the Constitution. One type of associations is trade unions.
Employees unite to form trade unions so that they could defend
their professional, economic and social rights. Therefore the
Constitution points out the main direction of the activity of
trade unions, which is to defend the professional, economic and
social rights and interests of employees. The provisions
contained by the Law on Trade Unions whereby trade unions shall
defend the labour, economic and social rights and interests of
their members do not contradict the Constitution even though
the latter indicates a wider circle of subjects to be defended
by trade unions. The Law on Trade Unions which provides that
trade unions shall defend their members does not prohibit trade
unions from defending the employees who are not trade union
members.
A. Kvedaravičius, a deputy chairman of the Centre of Trade
Unions of Lithuania, pointed out in his explanation that the
provision of Article 50 of the Constitution whereby trade
unions shall defend the professional, economic, and social
rights and interests of employees grants the right and
opportunity to trade unions to defend the rights and interests
of all employees, trade union members included, while it grants
the right to the employees who are not trade union members to
entrust the protection of their rights to trade unions and to
charge them to be their representatives. A concrete mechanism
of representation of employees and trade union members and that
of protection of their rights is established by laws. The
disputed norms of the Law on Trade Unions are in compliance
with Article 50 of the Constitution as they merely
particularise the protection of the rights and interests of
trade unions, their members and the employees who are not trade
union members.
In the course of the preparation of the case for the court
hearing an explanation by G. Švedas, a vice-minister of justice
of the Republic of Lithuania, was received.
V
In the court hearing the representative of the party
concerned virtually reiterated her arguments set forth in
writing.
The Constitutional Court
holds that:
Part 1 of Article 50 of the Constitution provides: "Trade
unions shall be freely established and shall function
independently. They shall defend the professional, economic,
and social rights and interests of employees."
Construing the content of these constitutional norms, one
has to take account of the following aspects which are peculiar
to the activities of trade unions.
First of all, it needs to be noted that trade unions are
voluntary and independent organisations of employees. They join
trade unions in order to defend their rights better, i.e. in an
organised way. A person who joins a trade union, of its own
free will chooses this organisation as one of the forms of the
protection of his labour rights and interests. Therefore the
defence of the rights of trade union members as provided for by
the norms of the Law on Trade Unions is line with the main
purpose of these organisations. Such an aspect of the activity
of trade unions becomes especially conspicuous in settling
individual labour disputes when trade unions defend their
members from unlawful decisions of employers and, if necessary,
these members are represented in court by the organisations of
their trade unions.
On the other hand, it is to be noted that historically
trade unions were established as defenders of all employees.
Therefore constitutions of many countries, including that of
the Republic of Lithuania, provide that trade unions shall
defend the professional, economic, and social rights and
interests of employees. Through bilateral and tripartite
negotiations with the representatives of the government and
those of the employers they may solve social and economic
problems of not only their members but also those of other
employees. Taking account of the interests of employees, the
trade union of an enterprise may act for the good of all of
them and attempt, for instance, that fair wages be established
or safe labour conditions be secured. As a rule, the interests
of all employees are represented by making collective or other
agreements with employers. Under Article 16 of the Republic of
Lithuania Law on Collective Agreements, representatives of the
parties to a collective agreement shall prepare a draft
collective agreement, taking into consideration the proposal of
the employees and agreements worked out during negotiations.
The draft agreement must be discussed by the employees (at
structural units) and must be submitted for further discussion
to the meeting (conference) of the collective of employees.
Upon the approval of the draft collective agreement at the
meeting (conference), representatives of the parties shall sign
the agreement within three days. It means that the laws
obligate trade unions to represent all persons who work at
enterprises or other organisations in the course of joint
solution of their economic and social problems.
Thus the Constitutional Court underlines that the
provision of Part 1 of Article 50 of the Constitution, whereby
trade unions shall defend the professional, economic, and
social rights and interests of employees, virtually expresses a
double purpose and function of trade unions: first, to
represent trade union members and defend them in the first
place; second, defend all the employees of a respective
enterprise, institution or organisation in the cases and ways
as established by the law.
The purpose of trade unions to defend in an organised 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 organisations
and a workers' organisation or workers' organisations).
Taking account of the circumstances set forth and the
given construction of the content of Part 1 of Article 50 of
the Constitution, the Constitutional Court will investigate
whether Part 2 of the Preamble of the Law on Trade Unions as
well as Part 4 of Article 10, Article 17, Part 1 of Article 18,
Article 21 and Part 2 of Article 23 of the same law which, in
the opinion of the petitioner, provide for the protection of
the rights of trade union members only were in conformity with
the Constitution.
1. On the compliance of Part 2 of the Preamble of the Law
on Trade Unions as well as Part 4 of Article 10 of the same law
with the Constitution.
1.1. Part 2 of the Preamble of the Republic of Lithuania
Law on Trade Unions provides: "Trade unions shall be voluntary,
independent and self-acting organisations which represent and
defend the professional, labour, economic and social rights and
interests of employees."
It needs to be noted that Part 2 of the Preamble of the
Law on Trade Unions of the 21 November 1991 wording was set
down in a different way by establishing that trade unions shall
be voluntary, independent and self-acting organisations which
defend the professional, labour, economic and social rights and
interests of their members and which represent them. However,
by Article 1 of the 24 May 1994 Law "On Amending and
Supplementing the Republic of Lithuania Law on Trade Unions"
the Seimas partially amended Part 2 of the Preamble and
established that trade unions shall be voluntary, independent
and self-acting organisations which represent and defend the
professional, labour, economic and social rights and interests
of employees and which represent them. After the Law on Trade
Unions had been amended in such a way, Article 50 of the
Constitution and Part 2 of the Preamble to this law became
virtually identical. Thus the part of the Preamble which is
disputed by the petitioner is in compliance with the
Constitution.
1.2. Part 4 of Article 10 of the Law on Trade Unions
provides: "Trade unions shall represent trade union members in
the relations with the employer or his authorised
representative. Trade unions shall defend the labour, economic,
and social rights and interests of their members." By this norm
trade unions have been granted the right, as well as an
obligation has been established to them, to represent their
members in the relations with the employer or a person
authorised by the latter and in cases when they violate the
rights of a trade union member or his interests which are
protected by the law also to defend him under the procedure
established by laws. Such a provision of the Law on Trade
Unions is determined by the nature of these organisations. As
mentioned, trade unions are joined so as the rights and
interests of their members might be defended in an organised
way. The provisions of Part 4 of Article 10 of the Law on Trade
Unions guarantees that it is this organisation which will
represent them in the relation with the employer and, if
necessary, will protect them. The employer or a person
authorised by him is prohibited to stipulate conditions or
propose to keep a job by demanding that an employee should not
join or should quit a trade union.
In deciding whether Part 4 of Article 10 of the Law on
Trade Unions which is disputed by the petitioner is in
conformity with the Constitution, one has to take into
consideration the fact that it is provided in the said law that
bodies of trade unions of enterprises and institutions are
obligated to represent not only trade union members but also
other employees. For instance, Article 11 of the said law
provides that trade unions shall represent their members (they
may also be representatives of the collectives of employees) in
concluding collective and other agreements with the employer,
while Article 12 provides that trade unions or their
associations shall be entitled to conduct negotiations and
conclude agreements with the employers or their organisations
or associations concerning employment, re-training, work
organisation and wages, amelioration of working and living
conditions of the employees, as well as regarding other issues.
As a rule, in collective agreements terms of conclusion,
amending and annulment of labour agreements, conditions of
organisation of work, wages as well as conditions of work and
recreation, as well as those of acquiring a speciality,
improvement of one's professional skills, and re-training, as
well as the guarantees and advantages linked with all this, and
other economic and social conditions and stipulations which are
important to the parties are established.
The essence of the disputed provision of Part 4 of Article
10 of the Law on Trade Unions is that this norm expresses the
duty of trade unions to defend the rights of their members as
well as their interests which are protected by laws and to
represent them. However, this disputed norm is to be assessed
in the whole context of the Law on Trade Unions. As mentioned,
Articles 11 and 12 of the said law provide for an opportunity
for trade unions to represent other employees as well,
therefore there exist no grounds for an assumption that the
norm of Part 4 of Article 10 of the Law on Trade Unions denies
an opportunity to defend the rights of other employees. Taking
account of these arguments, a conclusion is to be drawn that
Part 4 of Article 10 of the Law on Trade Unions is in
compliance with the Constitution.
2. On the compliance of Article 17 and Part 1 of Article
18 of the Law on Trade Unions with the Constitution.
2.1. Part 1 of Article 17 of the Law on Trade Unions
provides: "Trade unions shall be entitled to supervise how the
employer abides by and implements labour, economic and social
laws, and collective agreements which are linked with the
rights and interests of the employees whom they represent. To
this end, trade unions may have their inspectorates, services
of legal assistance and other offices." Part 2 of the same
article prescribes: "Persons authorised by trade unions,
exercising the control functions as provided by Part 1 of this
Article, shall have the right freely to visit the enterprises,
institutions and organisations in which the employees
represented by that trade union work, and become familiar with
the documents concerning labour, economic and social
conditions."
Control is an important method in the activities of trade
unions. Exercising the functions of control, it is possible to
establish whether the employer violates the professional,
economic or social rights and interests of the employees. It
needs to be noted that under the 21 November 1991 wording of
Article 17 of the Law on Trade Unions, trade unions were
granted the right to supervise how the employer implements the
laws and collective agreements which were linked with the
rights and interests of trade union members only. In attempt to
create legal pre-conditions for trade unions to defend all
employees, by Article 6 of the 24 May 1994 Law "On Amending and
Supplementing the Republic of Lithuania Law on Trade Unions"
the trade union powers of control were expanded by granting
them the right to supervise as to how the laws and collective
agreements which are linked with the rights and interests of
the employees (i.e. not only trade union members) whom they
represent are implemented. Thus the norms of Article 17 of the
Law on Trade Unions were brought in line with the provision of
Part 1 of Article 50 of the Constitution whereby trade unions
shall defend the professional, economic, and social rights and
interests of employees. Therefore the Constitutional Court
holds that the disputed by the petitioner Article 17 of the Law
on Trade Unions is in compliance with the Constitution.
2.2. Part 1 of Article 18 of the Law on Trade unions
provides: "Trade unions shall be entitled to demand that the
employer rescind his decisions which violate the labour,
economic and social rights of trade union members which are
established by the laws of the Republic of Lithuania."
The employer must conform to the requirements of the norms
of the laws concerning labour, economic and social conditions
for the employees. In cases when the employer adopts such
decisions which in one or the other way violate labour,
economic or social rights of trade union members, the trade
union has the right to react to this and demand that such
decisions be rescinded. Under Part 2 of Article 18 of the Law
on Trade Unions, the employer must review these demands within
ten days in the presence of representatives of the trade union
which had filed the demand, while under Part 3 of the said
article, in the case that the employer fails to review the
demand of trade unions to rescind such a decision in due time
or if he refuses to satisfy it, the trade union shall have the
right to appeal to court.
It goes without saying that decisions of the employer can
violate the rights not only trade union members but also those
of the employees who do not belong to that organisation.
Article 30 of the Constitution guarantees the right of
individuals to appeal to court, therefore the employees who are
not trade union members may protect their rights which have
been violated by decisions of the employer directly in court.
It is to be noted that in the Lithuanian judicial practice it
is held that an employee who is not a trade union member may
directly protect his rights in court (Ruling No. 42 of 21 June
1996 of the Senate of Judges of the Supreme Court of
Lithuania).
Taking account of the arguments and motives set forth, a
conclusion is to be drawn that Part 1 of Article 18 of the Law
on Trade Unions is in compliance with the Constitution.
3. On the compliance of Article 21 of the Law on Trade
Unions with the Constitution.
Part 1 of Article 21 of the Law on Trade Unions provides:
"The employer may not dismiss an employee who is a member of
the trade union operating in that enterprise on his own
initiative (with the exception of cases as provided for by
Items 1 and 8 of Article 29 of the Law on Labour Agreements)
and of his own will without prior consent of the body of the
said trade union which is elected in the same enterprise." This
legal norm means that a trade union member makes use of trade
union defence when the issue of his dismissal is decided. Thus,
such a person, if his rights are compared with those of the
other employees, enjoys additional guarantees due to his trade
union membership.
The norms of Parts 2, 3, 4, 5 and 6 of Article 21 of the
Law on Trade Unions regulate labour and social guarantees of
those trade union members who are elected to elective bodies of
the trade union. These guarantees for such trade union members
are provided so that they would not be discriminated against
because of their work in the elective bodies of the trade
union, i.e. so that one would not do away with them because of
their activities in the said bodies (for instance, groundless
imposition of disciplinary penalties, dismissal, moving to
another, worse job, etc.), as well as so that during their work
in the said bodies their equal rights with the other employees
would be preserved. Besides, 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 disputed norms of Article 21 of the Law on Trade
Unions regulate such labour relations when trade unions may
defend only the persons who belong to this organisation. All
said norms are to be assessed as additional guarantees of the
rights of trade union members which on their own accord do not
deny the defence of the rights of the other employees.
Therefore it is to be concluded that Article 21 of the Law on
Trade Unions is in compliance with Article 50 of the
Constitution.
4. On the compliance of Part 2 of Article 23 of the Law on
Trade Unions with the Constitution.
Part 2 of Article 23 of the Law on Trade Unions provides:
"Trade unions, protecting the rights of their members, shall be
entitled to declare a strike under the procedure as established
by laws." This norm of the Law on Trade Unions is to be linked
with the right of employees to strike which is entrenched in
Article 51 of the Constitution. The said article of the
Constitution prescribes:
"Employees shall have the right to strike in order to
protect their economic and social interests.
The restrictions of this right, and the conditions and
procedures for the implementation thereof shall be established
by law."
The implementation conditions and procedure of the
constitutional right of employees to strike and that of the
right of trade unions to declare a strike are regulated by the
Republic of Lithuania Law on the Regulation of Collective
Disputes. Part 1 of Article 10 thereof provides that the right
to declare a strike (including a preventive one) shall be
vested in the trade union by the procedure as established in
its regulations (statute). A strike is declared
(1) in an enterprise in case this decision is approved of
in a secret ballot by at least 2/3 of the employees;
(2) in a structural unit of an enterprise in case this
decision is approved of in a secret ballot by at least 2/3 of
the employees of the said unit and more than one half of all
the employees of the said enterprise.
Thus the right of trade unions to declare a strike derives
form the right of employees to strike which is guaranteed by
the Constitution and the laws. A trade union has the right to
declare a strike provided this is approved of a majority of
persons working at the enterprise, institution or organisation.
By declaring a strike, the trade union implements the will of
both trade union members and the other employees of the
enterprise. Taking account of these arguments and motives, it
is to be concluded that Part 2 of Article 23 of the Law on
Trade Unions is in compliance with Article 50 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that Part 2 of the Preamble of the Republic
of Lithuania Law on Trade Unions as well as Part 4 of Article
10, Article 17, Part 1 of Article 18, Article 21 and Part 2 of
Article 23 of the same law are in compliance with the
Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.