In practice, this constitutional right is manifested in two ways:
- From employees to trade unions, with the possibility for employees to join a union whose role is to defend the economic or professional interests of the profession they represent (Ordinance-Law No. 399 of 6 October 1944 authorizing the creation of professional unions);
- From trade unions to employees: unions with employee members within a company with a workforce exceeding 40 employees may appoint one or more trade union delegates there (depending on whether the workforce is below or above 150 employees) (Law No. 957 relating to the exercise of trade union rights in companies).
While Law No. 957 sets out the conditions for appointment relating to the individual employee (notably age, length of service within the company, criminal record), Ordinance-Law No. 399 establishes a prerequisite relating to the representativeness of the union seeking to make an appointment.
To be appointed as a trade union delegate, the employee must therefore perform, for their employer, a profession or function falling within the scope of the union making the appointment.
This is the primary and essential condition that gives the union legitimacy to appoint a delegate within the company.
In the absence of such legitimacy, the appointment is made outside the constitutional right to defend the interests of the profession.
It may then be challenged — within a period of fifteen days — by any interested party before the Juge de Paix, who will first examine the representativeness of the union.
This representativeness is not presumed, and it is up to the union to prove “a community of interests” and, in particular, “economic and professional interests” linking the appointed employee to the union.
Failing this, the Juge de Paix will annul the appointment of the trade union delegate made in violation of the principle of representativeness, which is legally and constitutionally protected.
