a) Hungary / b) Constitutional Court / c) / d) 23-04-1990 / e) 8/1990 / f) / g) Magyar Közlöny (Official Gazette), 35/1990 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Economic, social and cultural rights - Freedom of trade unions.
Keywords of the alphabetical index:
Trade union, representation / Employee, right to human dignity / Umbrella, right.
Article 15.2 of the Labour Code was unconstitutional as it could potentially infringe an employee's right to self-determination which formed an integral part of the right to human dignity in Article 54.1 of the Constitution. It was not inconceivable that the trade union might choose to exercise its right of representation in spite of an employee's explicit request to the contrary. Such potential infringement of the employee's right to self-determination could not be alleviated by taking into account the employee's interest which could only be assumed by the union. Indeed the risk of infringing the employee's interests was at its greatest where the personal matters of non-member employees were concerned. Once the disputed provision had been annulled, the Labour Code would then retain consent as the sole basis for representation.
The right to human dignity ensured by Article 54.1 of the Constitution was a natural right of which no one could be deprived. Such a right included, inter alia, the right to free personal development, to self-determination, to privacy or general freedom of action. It was an "umbrella right", a subsidiary fundamental right which might be relied upon to protect an individual's autonomy when no particular, specified fundamental right was applicable.
The petitioner sought a ruling on the constitutionality of a 1967 Labour Code provision giving trades unions the right to represent employees without their authorisation.
The petitioner submitted that representation of employees had previously fallen within the exclusive competence of the trade union in the particular sector of the economy. Under Article 15.2 of the Labour Code, the trade union in employment-related issues had the right to act in the interests, in the name and on behalf of the employees in the absence of any special authorisation to do so. Following the process of political transformation, the representation of employees' interests had been placed on a more pluralist basis, reflected in Articles 4 and 70/C of the Constitution. As a result, he contended, representation by trade unions was permissible only in respect of their members with special authorisation and not in respect of non-union member employees unless so authorised.
The Constitutional Court did not find the disputed provision unconstitutional either under Article 4 or Article 70/C.1 of the Constitution: Article 4 of the Constitution extends the trade unions' right to engage in the protection of interest and representation, which appears also in the former Constitution, to other organisations formed for the protection of interests. Neither this rule nor the provision of Article 70/C.1 of the Constitution pertaining to the freedom of forming trade unions and other organisations for the representation of interests prescribe what interest protection and representation activities include.
On the other hand, the trade unions' right under the disputed provision of the Labour Code to undertake the representation without authorisation may infringe upon the employees' right to self-determination, which is an integral part of the right to human dignity declared by Article 54.1 of the Constitution as a natural right of which no one may be deprived. On the basis of the disputed provision, it may not be ruled out that a trade union may choose to exercise its right of representation in spite of an employee's explicit request to the contrary. This potential infringement upon the right to self-determination may not be eliminated even by the fact that a representation without authorisation must take into account the employee's interest, since the interests of the individual employees are only presumed by the trade union.
The risk of infringing the employee's interest is at its greatest when the non-trade-unionist employee's personal matters are concerned. That was the primary reason why the provision in question had to be annulled. As a result of this annulment, however, the Act has retained only consent as a way of trade union representation. If the right of trade unions to represent their members either without authorisation or in capacities to which employees may effectively give tacit consent by acquiescence seems justifiable, such a gap should be overcome by creating new legal regulations.