Compulsory Membership Research Articles

Саморегулівні організації: юридичні особи на межі приватного і публічного права

The article analyses the legal status of self-regulatory organisations (SROs). These organisations are formed among the actors of various types of professional and business activity (lawyers, doctors, auditors, accountants, etc.), but the notion ‘self-regulatory organization’ has started to be used in legislation only recently. The main function of these organisations is to carry out self-regulation, i.e. to regulate the activity of their own members by adopting rules of conduct and monitoring compliance with them. However, these organisations often acquire regulatory powers not only from their members, who voluntarily agree to be subject to their regulation, but also from the state, which delegates to them or recognizes their public regulatory powers. This creates a kind of paradox: on the one hand, SROs are established in a manner typical of private law entities. However, on the other hand, their activities acquire the features of administrative activity. This raises a number of issues in law enforcement practice. Firstly, there are difficulties with the type of legal regulation that should be applied to the activities of these organisations - general permissive or special permissive. Secondly, the issue of court jurisdiction is ambiguous as well, i.e. which courts (administrative or commercial) have competence to resolve disputes arising between self-regulatory organisations and their members. Thirdly, the issue of compulsory membership in self-regulatory organisations is also quite acute, as this may lead to a violation of the right to freedom of association. Finally, the question of whether SROs are liable in the event of damage caused by them when exercising public authority is also ambiguous. There is a question concerning the conditions of their liability: shoud these be general conditions (Articles 1166-1167 of the Civil Code of Ukraine) or special conditions according to the rule of ‘truncated’ composition, which is typical for the liability of public authorities (Article 1173 of the Civil Code of Ukraine). This article provides a detailed analysis of these and other issues and outlines the ways to resolve them

Cost of Training Crisis: Anaesthetics.

The anaesthetic training programme in the United Kingdom (UK) spans over seven years and is overseen by the Royal College of Anaesthetists (RCOA). Junior doctors in England are currently striking amid ongoing pay negotiations with the government, and almost all junior doctors are worried about the cost of living. This article provides an overview of the average financial cost of training for doctors in the anaesthetic training programme. The cost incurred by anaesthetic trainees illustrates the level of financial burden faced by trainees across multiple specialities. The cost includes: student loan repayment (with interest rates), compulsory membership fees (including the Royal College of Anaesthetists and General Medical Council), postgraduate examinations (Fellowship of the Royal College of Anaesthetist exams are compulsory to complete training) and medical indemnity. The average trainee spends between 5.6% and 7.4% of their annual salary on non-reimbursable costs. This article delineates for aforementioned expenses and compares them with the training programs in Australia and New Zealand, given their status as frequent emigration destinations for UK doctors.

Regulation of the profession Restorer in Slovakia

The Slovak Republic decided to regulate access to the execution of the profession “restorer” by establishing the Chamber of Restorers (original name in Slovak: “Komora reštaurátorov”). The Chamber of Restorers was established by law in 1994 as a so-called professional chamber with compulsory membership. It gathers physical persons executing the profession “restorer” in Slovakia. As far as we know, it is the only country in the EU where the attempts for self-regulation of the professionals executing the liberal profession “restorer” have been successfully transformed into the creation of a so-called professional chamber. The idea and initiative came from the restorers themselves. At the beginning of the process of preparation of a proposal on how to structure the law, the Slovaks cooperated with their former federal partners from the already split up Czech and Slovak Federative Republic. However, the Czech situation developed differently. The article explains the restorers´ chamber system and its historical preconditions in the Czechoslovak organisation of the profession´s execution.

Mandatory membership of community-based mutual health insurance in Senegal: A national survey.

With the low adherence to voluntary mutual health insurance, Senegal's policymakers have sought to understand the feasibility of compulsory health insurance membership. This study aims to measure the acceptability of mandatory membership in community-based mutual health insurance (CBHI) and to understand its possible administrative modalities. The study consists of a national survey among a representative population sample selected by marginal quotas. The survey was conducted in 2022 over the phone, with a random composition method involving 914 people. The questionnaire measured the socio-economic characteristics of households, their level of acceptability concerning voluntary and compulsory membership, and their level of confidence in CBHIs and the health system. Respondents preferred voluntary (86%) over mandatory (70%) membership of a CBHI. The gap between voluntary and compulsory membership scores was smaller among women (p = 0.040), people under 35 (p = 0.033), and people with no health coverage (p = 0.011). Voluntary or compulsory membership was correlated (p = 0.000) to trust in current CBHIs and health systems. Lack of trust in the CBHI management has been more disadvantageous for acceptance of the mandatory than the voluntary membership. No particular preference emerged as the preferred administrative channel (e.g. death certificate, identity card, etc.) to enforce the mandatory option. The results confirmed the well-known challenges of building universal health coverage based on CBHIs-a poorly appreciated model whose low performance reduces the acceptability of populations to adhere to it, whether voluntary or mandatory. Suppose Senegal persists in its health insurance approach. In that case, it will be essential to strengthen the performance and funding of CBHIs, and to gain population trust to enable a mandatory or more systemic membership.

How transnational rules can contribute to the improvement of the Brazilian regulatory system for unitization—an analysis under the transnational legal order perspective

Abstract Unitization is the most effective method to avoid irrational, wasteful and environmentally unsustainable production of oil and natural gas. Therefore, it is important to notice that unitization is a complex practice. It is effective for the equitable production division of a deposit shared by different owners. However, compulsory membership can result in costly negotiation and make exploration and production projects less attractive. In the pre-salt, the most productive Brazilian oil province, unitization processes are common and even more complex due to the following factors: (i) there are three different tax regimes in the pre-salt polygon; (ii) when the reservoir is shared with an area not granted yet (referred to as an open area), the Brazilian regulation establishes that the unitization process must be carried out with the public company, Pré-sal Petróleo S.A., representing the Government; (iii) moreover, due to the high productivity of the pre-salt layer, the financial values involved in this process are substantial, even with a participation of less than 1 per cent in the shared reservoir. Brazil established a robust regulation on unitization in 2013, which was amended in 2017 and, again, in 2020. This demonstrates that the regulatory improvement process, in the search for a more efficient regulation—that balances the attraction of investments and protection of the public interest—is continuous. This article proposes that in this process of regulatory improvement, good international petroleum industry practices (good practices), contractual models drawn up by industry associations and codes of conduct shall be used as a reference. These non-state rules, which are the result of self-regulation by the upstream sector of the oil industry, will be considered in this article as transnational rules, following the approach of Halliday and Shaffer, who propose the existence of a transnational legal order.

Finnish Student Unions as Associations in the Context of ECHR Article 11

ABSTRACT This study examines the applicability of article 11 of the European Convention on Human Rights (ECHR) to Finnish student unions. In Finland, student unions have not traditionally been regarded as associations within the context of the convention, based on certain old inadmissibility decisions made by the European Commission of Human Rights. Based on the case law of the European Court of Human Rights, this study shows that, despite its wording, the Convention also protects negative freedom of association – the right not to belong. Methodologically, this is a legal dogmatic study that examines the case law, particularly in terms of the criteria by which it excludes or includes some communities from its scope. The conclusion is that, if the case of compulsory membership of student unions is debated in the Court of Human Rights, student unions cannot be considered public institutions, to which article 11 ECHR has not been applicable, but should be treated as associations. This, in turn, implies that compulsory student union membership can be criticised from the perspectives of both national law and the Convention.

Charakter członkostwa w samorządach zawodowych w świetle artykułu 17 ustęp 1 Konstytucji RP

The nature of compulsory membership in professional self-governments associating persons covered by the obligation of public trust is a fact that is questioned from time to time. Opponents of obligatory membership, however, find it difficult to argue for the identification of membership. According to art. 17 sec. 1 of the Constitution of the Republic of Poland, the basic opinion of professional self-governments is to supervise the proper performance of the profession by their members, which they do on behalf of the state, in the public interest. Therefore, in order to be able to fully perform this supervision, professional self-overnments should be equipped with an authoritative function in relation to all persons covered by the profession on equal terms. The aim of the article is to justify the obligatory membership in the professional self-government using dogmatic and legal methods.

Kontrola sądowa aktów normatywnych „podmiotów publicznych” w świetle węgierskiego Kodeksu postępowania sądowoadministracyjnego

The introduction of judicial review of statutory public bodies’ normative administrative acts was long overdue in the Hungarian legal system. Prior to 2018, no subjective or objective legal protection was allowed against these acts, which resulted in a number of anomalies, especially in case of professional bodies (chambers) with compulsory membership. This issue was recognised by the legislature as well, which endeavoured to rectify this hiatus by adopting the Code of Administrative Court Procedure. However, the progressive rules of the Code regarding the judicial review of normative acts of professional bodies have never been put into practice, as a mere two years later it was altered in a way that reflected a reversion to the regulatory framework prior to the adoption of the Code. The aim of this paper is to examine the original regulatory framework as well as the new amended rules of the Code from the perspective of the twofold function of administrative justice: protecting individual rights, while also controlling the legality of administration. Our primary focus of research was on the qualitative examination of the rules of the Code, however we also touch upon judicial practice, where available.

The internal market for supplementary pensions: A long and winding road

Since the beginning of the 1990s, EU initiatives have sought to gradually harmonize the activities of institutions for retirement provisions (‘IORPs’). However, thirty years later, multiple barriers to entry remain. This article will identify the current state of play, by adopting a twofold approach towards supplementary pensions in a context of EU internal market law. First, we will assess the process of negative integration of several pension policy tools in light of the free movement case law (in particular, the free provision of services). During this study, the focus will be on mechanisms of compulsory membership and collective bargaining in the field of occupational pensions. Second, we will analyse the most important legislative constraints of supplementary pension services at EU level, with an emphasis on secondary internal market law. We argue that, despite the effort of respecting national autonomy in social policy, positive integration has led to several spillovers. Finally, the article will highlight the most significant obstacles, and conclude by discussing the general attitude of EU internal market law towards supplementary pensions and social policy in general.

Self-Government Activities of Professional Chambers — Legislation and Application (with a Focus on the Conditions of the Czech Republic)

The article “Self-Government Activities of Professional Chambers” is focused on the exercising of self-government by professional chambers as public corporations, especially on its legislation and application in conditions of Czech Republic. The article presents professional chambers in the Czech Republic, which are based on compulsory membership. The article also deals with the issue of compensation when there is damage caused by professional chambers. Finally, attention is paid also to statutory regulations as a form of abstract acts published by professional chambers.

A Pure Bureaucratic-Entrepreneurial Theory of Deposit Insurance Adoption

Based on Becker, Kane, Niskanen, and Peltzman’s ideas, we develop a model to explain why deposit insurance is adopted even though policymakers are aware of its pitfalls in both theory and practice. In our model, the regulator acts as both a bureaucrat and an entrepreneur to maximize his self-interest through administering a deposit insurance scheme. The theory postulates that adoption of deposit insurance is more likely under the following conditions: the scheme is (i) publicly administered and (ii) privately funded, with (iii) non-risk rated insurance premium and (iv) compulsory membership; and there is (v) a larger deposit market with (vi) at least two groups of banks (good vs. bad), (vii) lower government ownership of banks, and (viii) higher economic freedom, such that one group exerts its political influence and gains from deposit insurance. Empirically our theory is supported by the stylized facts, cross-country binary-choice regression results and a case study of Canada.

Mutual insurances in Africa: Issues and perspectives

RésuméDès la fin des années 1970, la promotion de la communauté et de la participation des populations au système de santé renforcent l’idée que les mutuelles de santé sont des acteurs potentiellement majeurs de l’extension de la couverture contre les risques de santé. Mais l’histoire de la mutualité en Afrique a été rapidement parsemée d’embûches. Les plans d’ajustement structurel, l’augmentation de la contribution financière des usagers sous l’impulsion de l’initiative de Bamako, ont marqué un coup d’arrêt à l’esprit des mutuelles communautaires. Aujourd’hui les mutuelles sont de nouveau au cœur des initiatives internationales et nationales avec la promotion de la CSU (couverture sanitaire universelle). Mais elles doivent dépasser leurs carences historiques par la professionnalisation et l’obligation d’adhésion. Ce mouvement semble engagé tout en étant confronté au défi de préserver la place des communautés dans les systèmes de santé, principe fondateur du mouvement mutualiste.

Repair in the private rented sector: where now?

PurposeThis paper aims to analyse the extent to which recent changes in the law, most notably the Homes (Fitness for Human Habitation) Act 2018 and proposals for changes in tenant redress, will help tenants living in the private rented sector (PRS) with issues of disrepair and poor living conditions.Design/methodology/approachIt applies theoretical scholarship on procedural justice, to two proposals for reform, namely, compulsory membership of redress schemes and a new housing court or use of the first-Tier Tribunal for claims relating to disrepair.FindingsThe Homes (Fitness for Human Habitation) Act 2018 will not provide decent private rented homes without increased security of tenure and a requirement for inspection prior to letting. Tenants should have the right to a fit home at the time of moving in and a cheap and relatively fast method of redress when things go wrong. A combination of compulsory licencing, membership of an ombudsman scheme and either the transfer of disrepair cases to the first-tier tribunal or a new housing court would provide the best overall solution for tenants with regard to repair and condition.Originality/valueThis study contributes to the important scholarship on procedural justice and applies it to ongoing current debates regarding disrepair in the PRS.

유니온 숍 협정과 부당해고, 부당노동행위 - 대법원 2019. 11. 28. 선고 2019두47377 판결을 중심으로 -

Article 81, Paragraph 2 of the Trade Union And Labor Relations Adjustment Act stipulates compulsory membership provisions, such as the union shop agreement, as one of the unfair labor practices. However, union shop agreement entered into by a dominant trade union is considered to be valid as an exception. According to interpretation of the above clause, union shop agreement might apply to the act of a new employee who directly establishes a new trade union or joins another trade union without first joining and withdrawing from the dominant trade union. In this case the dispute was over the issue of whether the dismissal of a new employee based on the union shop agreement was an unfair dismissal or not, where the employee had joined another trade union without first joining and withdrawing from the dominant trade union. The trial court decided that the firing was not an unfair dismissal because the union shop agreement justified it. On the contrary, the appellate court decided that it was an unfair dismissal. The Supreme Court ruled that it was an unfair dismissal based on a limited interpretation where it was found that the union shop agreement can only be applied to a new employee who has not joined any trade union. It appears th Supreme Court’s decision is rational based on the reasons belows. 1) It is a global trend to limit the effectiveness of the union shop agreement and it also corresponds to the development of the history of trade unions. 2) It is necessary to protect employee’s right to work and right to choose the traded union by controlling employer’s dismissal. 3) Employer’s positive right to organize is guaranteed by the Constitution and union’s positive right to organize should be treated equally among plural trade unions. I hope that based on this ruling, the meaning of the right to unite, especially passive right to organize, will be contemplated and debated deeply. It is necessary, in my view, to regulate the union shop agreement as an unfair labor practice altogether, because passive right to organize should be protected equally to the positive right to organize.

Full employment history of Danish firefighters potentially involving additional exposures, 1964-2015.

This study aimed to demonstrate the possibility of using data on full employment history to describe occupational patterns of Danish firefighters that may indicate additional hazards encountered by these workers. An established cohort of Danish full-time and part-time/volunteer firefighters was used in the study (N = 9952) as well as occupational history covering the period 1964-2015, which was retrieved from a nationwide pension fund with compulsory membership. The most frequently held employments other than firefighting, together with temporal patterns of these employments, were explored in descriptive analyses. Besides working in the firefighter service, both full-time and part-time/volunteer firefighters had frequently been employed in the military and the police (55% and 38%) and more than 10% of both types of firefighters in a number of blue-collar jobs, including construction-related jobs (eg, masonry, joining, carpentry, insulation, and installation), laundry and dry cleaning, the auto industry, and rubber and plastic production. Part-time/volunteer firefighters had more frequently been employed in the machine industry, fabricated metal production, the wood and furniture industry, and farming. Both types of firefighters were initially employed in other jobs before their employment in firefighting. The cohort of Danish firefighters had frequently been working in other professions potentially exposing them to additional hazardous exposures, and occupational patterns varied by type of firefighter employment. Accounting for full employment history is, for that reason, considered essential when exploring associations between specific professions and health outcomes.

Samorząd zawodowy w systemie ustrojowym Polski

The socio-political changes which began in Poland over three decades ago resulted in, inter alia, the activation of various occupational groups that have decided to operate on the basis of the then existing public law. This meant the creation of corporate self-government organizations that are based on associations of persons with compulsory membership. Ever since the political reforms in Poland have been undertaken, professional self-government has been considered an important element of the state’s administrative system. The basis for creating such institutions was the need to protect certain professions which, in the social interest, required the highest qualifications and impeccable ethics. The professional self-government has significantly strengthened its position by taking over a number of the state’s administrative powers regarding, inter alia, the supervision of certain professions. For several years in Poland there has been a public debate on the future of the professional self-government during which arguments have been raised that question the need for the continued functioning of this type of organizations. Moreover, doubts have been raised as to whether the chambers of professional self-government strengthen democratic aspirations and the development of self-governance, or whether they are anachronistic structures that threaten the consolidation of the free market order in Poland. Therefore, it is not only worth pointing out the essence and the tasks of the institution of the professional self-government, as well as its historical development in the country, but it is of paramount importance to draw attention to the significance of this type of entities in creating democratic state institutions and in accelerating participatory processes.

The union default solution to declining union membership

The continued stasis in the now much reduced aggregate levels of union membership in Britain and elsewhere has such portent for widening inequalities in wealth and power under the neo-liberal variant of late capitalism that a union default requires introduction. In all countries around the world, the de facto system is a non-union default. Under a union default, all workers would be defaulted into membership of the appropriate union. This is not a proposal for compulsory membership, a contravention of individual liberty nor the return of the closed shop by the backdoor because workers will have the right to opt out of membership. The right to be the appropriate default union to which workers would be defaulted into in any workplace would be gained by the union passing a low minimum support threshold. This would bring with it the right to bargain over pay and conditions.

Article 23(4) Trade Union Rights and the United Nations policy of devolution on labour relations

ABSTRACTArticle 23(4) of the Universal Declaration of Human Rights states ‘Everyone has the right to form and to join trade unions for the protection of his interests.’ This article documents the global legislative history of Article 23(4) trade union rights from its original drafting to interpretation by international labour standards. The history includes debates on the fundamental principles of trade union rights, the decision by ECOSOC to ignore a call to establish a permanent UN Commission on Trade Union Rights, the devolution of authority from the United Nations to the International Labour Organization, how ILO international law experts framed trade union rights as a subset of the freedom of association, and the treatment of labour relations policy, including compulsory union membership, that resulted under international human rights norms. The history is discussed as one that confines standards of policy on labour rights in the global political economy and has particular implications for the discourse on labour rights as human rights.

Associations in transition: the business of Russian civil society

What characteristics of professional and business associations determine their organisational activities in the context of Russia's stage of transition? While research on associations in management and nonprofit literature remains under-theorised and fragmented, professional and business associations not only constitute a significant component of the Russian nonprofit sector, but also contribute to the institutional infrastructure of the emerging market economy. This paper investigates the influence of organisational determinants on the relative importance of advocacy, community building, and service delivery within professional and business associations. Data for this study were collected from 215 associations throughout Russia. The study verifies multifunctional nature of associations and confirms that advocacy remains the highest priority activity for associations embedded in the transitional environment. Applying Dirichlet regression, the study finds that organisational size and a specific agency type positively influences community building function. Moreover, our findings indicate that compulsory membership negatively affects service delivery and community building functions, whereas presence in social media has a positive effect on both of these functions fulfilled by Russian associations.

An analysis of the feasibility of an extreme operational risk pool for banks

AbstractOperational risk events in banks include extreme events with significant losses being incurred and with substantial impact on share prices. A pooling arrangement between banks that would be able to reduce overall costs and reduce share price impacts would seem desirable, but one of the major inhibiting factors to establish the feasibility of such a pooling arrangement is that statistical models of these extreme events are difficult to build with any reliability. This paper uses both quantitative and qualitative analysis of operational risk losses for EU and US banks over the period 2008–2014 to establish the feasibility of creating a pooling arrangement between the banks and concludes that such an arrangement might be feasible but would require compulsory membership of the pool and capping of losses.