Right to constitute and freedom to join trade unions

Freedom of peaceful assembly and freedom of association are individual freedoms which are protected by all the international texts on the protection of human rights and by national constitutions. At European level, the right to constitute and freedom to join trade unions is provided for in Article 11, ‘Freedom of association and collective bargaining’, of the 1989 Community Charter of the Fundamental Social Rights of Workers:

Employers and workers of the European Community shall have the right of association in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests.

Every employer and every worker shall have the freedom to join or not to join such organisations without any personal or occupational damage being thereby suffered by him.

The first paragraph of Article 11 provides a generic ‘right of association in order to constitute professional organisations or trade unions’. The second paragraph of Article 11 specifies a freedom to join ‘such organisations’. The scope of this provision, as it emerged from earlier drafts, reveals a distinction between the right to ‘join’, referring to active adhesion, and the right to ‘belong’, meaning protecting existing passive membership.

The second paragraph of Article 11 provides not for a ‘right’ but for a ‘freedom’ to join. The difference between a ‘freedom’ and a ‘right’ requires definition. A ‘freedom’ may be said not to give rise to a positive legal action – a claim – but renders unlawful restraints upon it. A freedom granted also has to compete against other freedoms. However, the relative weakness of freedoms granted becomes evident when rights are concerned. Competing rights may limit rights, but rights granted will usually overcome competing freedoms.

See also: Charter of Fundamental Rights of the European Union; Community Charter of the Fundamental Social Rights of Workers; collective industrial relations; European Social Charter; freedom of association; fundamental rights; international labour standards; negative freedom of association; trade unions.