Trade Unions and Collective Bargaining
The EU does not acknowledge or provide union rights. These rights are seen as collective rights and the EU protects individual rights, such as the employment rights considered in previous chapters, which are conferred on the person, not a group. As noted already, at its inception the Union was created to further business, as a primarily economic entity and not one that was overly concerned with the rights of the individual. While that has changed over the years, the EU has been relatively silent on union rights, neither promoting nor protecting collective bargaining or the right to strike. The right here is known as the freedom of association and is protected in other international law treaties. For example, Article 22 of the International Covenant on Civil and Political Rights provides that “everyone shall have the right to freedom of association with other, including the right to form and join trade unions for the protection of his interests”; the International Covenant on Economic, Social and Cultural Rights at Article 8(1)(a) protects “the right of everyone…to join the trade union of his choice…for the promotion and protection of his economic and social interests”; and the International Labour Organization Convention requires states to actively encourage and promote the full development of collective bargaining.1
Since the adoption of the Charter of Fundamental Rights of the EU, which attained Treaty status under the Lisbon Treaty, there has been a slight boost to union rights. Article 12 simply states that everyone has the right to freedom of association, which has been seen as implying a right to form and join trade unions. Article 12 here is identical to Article 11 of the European Convention on Human Rights and as such should be interpreted accordingly as per Article 52 of the charter. Thus, the case law of the ECtHR becomes of pivotal importance in relation to union rights and collective bargaining as the charter and the CJEU remain weak in certain elements of protection. For example, while the Treaty of Lisbon altered the status of the charter, providing in one article that it is legally binding and has the same status as other treaties of the EU, the very next sentence qualifies its scope with the caveat “The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.”2 Therefore, enforcement of the rights contained within the charter is dependent on pre-existing treaty rights. The court in Laval did recognize the right to collective bargaining as forming an integral part of EU law;3 however, it has been noted that enforcement of these outcomes proves to be difficult as the right to collective bargaining essentially is secondary to the business right to enjoy an undistorted labor market, as was the case in Alemo-Herron, which has been deemed a vicious attack on the right to bargain collectively.4
Member states of the EU have engaged in various levels of engagement with unions and collective bargaining and during the economic downturn some were actively encouraged by the EU-led Troika to disregard or suspend national pay agreements in order to implement austerity measures. Flowing from pressure of neoliberal policies a report by the European Commission’s director general for Economic and Financial Affairs recommended decreased bargaining coverage and an overall reduction in the wage-setting power of trade unions.5
Given that the EU has reverted to type when it comes to union rights and collective bargaining, which has allowed, even encouraged, member states to reduce, restrict, or repeal certain rights, it is essential that we now look elsewhere to ensure the protection and vindication of these rights. Of highest importance is the ECtHR as it is a court with powers of sanction and enforcement. Before examining the jurisprudence of the ECtHR, a brief consideration of the ESC is warranted as it contains a raft of protections in relation to trade unions. Article 5, the Right to Organise, states:
With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be applied as to impair, that freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they apply to persons in this category shall equally be determined by national laws or regulations.
Further, Article 6, the Right to Bargain Collectively, states:
With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
a) To promote joint consultation between workers and employers;
b) To promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations with a view to the regulation of terms and conditions of employment by means of collective agreements;
c) To promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and
d) To recognise the right of workers and employers to collective action in cases of conflict of interest, including the right to strike, subject to the obligations that might arise out of collective agreements previously entered into.
A considerable number of cases have been brought before the committee under both of these articles and in its periodic reports the committee has expressed strong disapprobation toward states for failing to live up to their charter obligations. However, as noted in Chapter 2, the committee is not a court and has no power to enforce its decision. It can make recommendations that the state change or adopt certain laws or procedures but has no power to ensure that this happens. Nor can it sanction the state or award compensation.6 In the limited cases where the committee has requested that the Committee of Ministers make a contribution to the costs of the complainant, such requests have been denied.7
Article 11 of the European Convention on Human Rights deals with the freedom of assembly and association. It states:
1. Everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights or freedoms of others. This article shall not prevent the lawful restrictions on the exercise of these rights by member of the armed forces of the police or of the administration of the state.
In much of the case law of the court, the relationship between the freedom of association and the right to join a trade union has been discussed. Since the 1970s it has determined that the right to form or join a trade union is a special type of freedom of association. In Young, James and Webster it stated, “It therefore follows from the text itself that the right to freedom of association is the overall concept, with the right to join or form trade unions as an element of that concept, rather than a separate and distinct right for the purpose of this Convention.”8
Questions then arose as to the term “association” and while the court does not give a definition, it is widely accepted that this is a voluntary body convened with a common goal demonstrating a minimum level of organization and stability.9 Determining whether an organization constitutes an association is important in order for the convention to apply. Organizations governed by public law do not qualify as associations. In addition, it can make a difference whether a trade union is addressed as a trade union or an association. If a trade union is, as suggested earlier, a special type of association, then distinct and special rights may apply to it and not to other, more general organizations. However, in much of the case law the court has preferred to refer to the trade union as a plain association, ensuring equality of treatment among all associations.10 Historically, the application of the convention horizontally was contested. These days the courts generally accept that the state has a duty to protect the rights and freedoms to include ensuring an effective remedy for breach of rights even in the realm of relationships between individuals or associations, especially in the area of closed shop agreements.11 Positive obligations imposed on the state by way of ensuring industrial relations in the private sector are covered by Article 11.
This issue of closed shops is closely intertwined with the right to form and join trade unions. The court has extended the principle into a negative right, the right not to join a particular trade union. Though the text of the article only confers a positive right to associate and none of the other rights recognize a corresponding negative (for example, the right to life does not carry with it the correlating right to die),12 the court has openly recognized a right not to organize or associate. In Young, James and Webster the court was faced with its first closed shop agreement. Here the three workers were dismissed because of their refusal to join a trade union that signed a closed shop agreement with their employer after their employment commenced. The court cautiously accepted that Article 11 provided some measure of negative freedom of association. The case was, at this stage, without precedent that the court could pin its ruling on as no international protection relating to the right NOT to associate existed.13 As a result, the monitoring bodies of the ILO and ESC concluded that this would primarily be left to the discretion of states provided that agreements were as a result of free negotiations. The ECtHR chose not to follow this and felt that “it does not follow that the negative aspect of a person’s freedom of association falls completely outside the ambit of article 11” due to the difficulties raised by closed shop practices. The court attached high value to the consequences of the practice of closed shop agreements, such as the loss of employment and the political objections of workers to being aligned with unions. The court has always adopted the view that the convention is a document to be read as a whole and not in isolation and affirmed this stance in coming to its reasoning in this case. It looked at the rights protected under Article 9 (freedom of thought, conscience, and religion) and Article 10 (freedom of expression) in interpreting Article 11. As such, the rights contained within Articles 9 and 10 could effectively only be protected if Article 11 carried with it the negative freedom of association. Therefore, to be included in an association against one’s will results in an unjustified interference with personal autonomy.14 In the wake of this case several more cases against the UK were lodged with the court. The majority of these reached a friendly settlement with only one arriving before the court. In Gibson vs. UK the applicant was unsuccessful.15 Of great importance to the court’s decision was that his livelihood was not at stake and there was no closed shop agreement.
In Sigurjonsson the court considered the obligation requiring membership of a professional organization to attain a taxicab license.16 This case did not involve a trade union nor was membership of the organization imposed by way of closed shop agreement. The organization was made up of self-employed cab drivers and was imposed by law. Even though it performed some public functions it was deemed to be primarily a private association and therefore fell within the remit of Article 11. The court here surpassed its more tentative reasoning in Young, James and Webster and stated unequivocally that Article 11 “must be viewed as encompassing a negative right of association”; however, it stopped short of determining whether this right was on par with the positive one. The court again relied on the loss of livelihood and the claimant’s ideological objections to membership, even though these were not political in nature, to find a breach of Article 11.
It was in Sorensen and Rasmussen vs. Denmark where the court stopped distinguishing between pre- and post-entry closed shops.17 Until this point it had refused to be drawn on whether pre-entry closed shops (the requirement to join an association or trade union at the time of taking up a contract of employment) would fall foul of Article 11. This may have been influenced by the fact that many of the member states still operated these pre-entry closed shops and the ILO also viewed them as lawful. In this case the applicants complained of the requirement to join a particular trade union as a condition of taking up employment. While acknowledging that on occasion group interests would outweigh individual interest, the court warned that a balance must be achieved to avoid the abuse of a dominant party. As such, a worker who has union membership as a precondition to employment must also be protected by Article 11 due to the fact that the worker seeking employment is in a more vulnerable position.
When it comes to the internal organization of the union, the court has refined the law primarily by relying on the provisions of the ILO Convention. In Cheall vs. UK the applicant, a branch secretary of the trade union ACTS, resigned and applied for membership of another union APEX. Due to the fact that he was accepted without observance to the TUC Disputes Principles and Procedures, the Disputes Committee excluded him from membership. He challenged this exclusion civilly but to no avail. He challenged this under Article 11 alleging that the UK had failed to protect him from these measures. It was held that the right to join a union cannot be interpreted as conferring a general right irrespective of the rules of that union. The ILO allows for unions to draw up their own constitutions and establish rules for the admission and expulsion of members. The court did require that the state protect individuals from abuse by a dominant union where the measures were disproportionate or unreasonable. In this case the court found them to be neither. Here we can see the balancing act that the court is doing in trying to use the convention to ensure state intervention to protect a weaker party while at the same time allowing a private association set its own rules for membership.
In ASLEF, UK legislation was again before the court; this time it was legislation that prohibited a trade union from expelling a member on the basis of his or her political affiliation.18 The court reiterated its position that it was for the union to draw up its own list of rules and acted as a counter to the negative freedom of association: “An employee or worker should be free to join or not join a trade union without being sanctioned or subject to, so should the trade union be equally free to choose its particular members.” The court opined that it would run counter to the freedom in Article 11 if the unions had no control over their membership and they must be free to decide, in conformity with union rules, matters relating to admission and expulsion.
It was not until 2002 that antiunion matters came before the court in Wilson, National Union of Journalists and Ors vs. UK, which centered on British legislation that undermined unions and collective bargaining by offering more favorable conditions to employees who agreed not to be in a union. The court found that the freedom of employees to instruct a union to act on their behalf was an essential feature to the freedom of association and union membership. As a consequence the state needed to ensure that the union was not restrained in any way from providing that function. By providing financial incentives to surrender union rights the state had failed in its obligation to vindicate the rights under Article 11. Again, in Danilenkov vs. Russia the court examined various techniques used in order to convince employees to part with their union rights, including reassignment, dismissal, reduction in salary, and disciplinary sanctions.19 As a result of these measures membership of the union plummeted and the union sought redress, to no avail. The court found that the Russian state had failed to fulfill its positive obligation to adopt effective judicial protection and that individuals subject to discriminatory treatment are entitled to challenge such and to obtain damages or other appropriate remedy.
Another important aspect of Article 11 is the right to bargain collectively. This right has been recognized under a number of international documents, first appearing in the ILO Convention in 1949. It was the ESC that first explicitly provided that all workers have the right to bargain collectively and most recently it has been recognized in the Charter of Fundamental Rights of the European Union. Under Article 11 of the European Convention, this right is not present in the text; rather, the court has interpreted the right to include collective bargaining. Initially the court’s view was that it was for the state to determine how the union should be heard, and while collective bargaining may be one of the ways in which unions can protect their members’ interests, this did not constitute an element of Article 11.20 This line of reasoning was maintained by the court until 2008 when the case of Demir and Baykara was determined. Here, a Turkish trade union was included in negotiations and concluded a collective agreement. There was, however, no recognition of the freedom to associate in Turkey and in addition no legal framework to protect it. As such the Turkish courts determined that the agreement was void and the employees had to repay the increased wages paid to them under the agreement. Here the court reversed its earlier decision, having regard to the changing international standards and laws, found Turkey to be in breach of Article 11, and heralded collective bargaining as an inherent part of Article 11.
This may seem like a strange concept that the court can just depart from its earlier ruling and is not bound by its own precedent. This kind of dynamic interpretation used by the ECtHR has its origins in many European (and U.S.) Supreme Courts where the highest court is not bound by its own precedent. Thus, any particular interpretation of a convention right by the court is not fixed. The evolutive, or dynamic, interpretation was introduced by the court in Tyrer vs. UK.21 The idea is that the convention is not stagnant and is to be interpreted in the context of contemporary societal conditions. This approach was approved in Sigurjonsson vs. Iceland where the court reiterated that “the Convention is a living instrument which must be interpreted in the light of present day conditions.”22 In Selmouni vs. France it explained the operation of this concept as “certain acts which were classified in the past as inhuman and degrading treatment as opposed to torture could be classified differently in future.”23 This interpretation is a recognition that as society evolves so too do the concepts of fundamental rights protection. This dynamic interpretation is essential if the convention is to maintain its effectiveness. Societal structures have changed considerably since its adoption and failing to interpret it in light of evolving standards would lead to stagnation.
Union rights have evolved significantly over time within Europe and while they are still not comprehensively addressed by the EU, the ECHR and the ESC provide adequate redress and legal provision.
1 First noted in Article 19 of the Constitution of the ILO in 1944 and has since been included in 10 key ILO documents.
2 European Union, Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007, 2007/C 306/1; Article 6.1.
3 Case 341/05 Laval [2007] ECR I-11767.
4 Case 499/04 Alemo-Herron [2006] ECR I-2397.
5 Schulten, T. 2013. “The Troika and Multi-Employment Bargaining: How European Pressure is Destroying national collective bargaining systems” Global Labour Column available at http://column.global-labour-university.org/2013/06/the-troika-and-multi-employer-bargaining.html
6 Confédération Française de l’Encadrement vs. France Complaint No. 9/2000.
7 For example, see European Roma Rights Centre vs. France Complaint No. 15/2003.
8 Young, James and Webster vs. UK, EComHR, Report of 14 December 1979, App Nos 7601/76 and 7806/77.
9 See Tomuschat, C. 1993. “Freedom of Association” In The European System for the Protection of Human Rights, 493, eds. R. St J. MacDonald, F. Matscher, and H. Petzold. Dordrecht, Martinus Nijhoff Publishers.
10 See Sigurdur A Sigurjonsson vs. Iceland App No 16130/90 (30 June 1993)
11 Van Hiel, I. 2013. “The Right to Form and Join Trade Unions” In European Convention on Human Rights and the Employment Relationship, 289, eds. F. Dorssemont, K. Lorcher, and I. Schoman. Oregon, Hart Publishing.
12 See Pretty vs. UK [2002] ECHR 423.
13 Van Hiel, I. 2013. “The Right to Form and Join Trade Unions” In European Convention on Human Rights and the Employment Relationship, 290, eds. F. Dorssemont, K. Lorcher, and I. Schoman. Oregon, Hart Publishing.
14 See Tomuschat, C. 1993. “Freedom of Association” In The European System for the Protection of Human Rights, eds. R. St J. MacDonald, F. Matscher, and H. Petzold. Dordrecht, Martinus Nijhoff Publishers.
15 App No 14327/88 (20 April 1993).
16 Sigurdur A Sigurjonsson vs. Iceland App No 16130/90 (30 June 1993).
17 App Nos 52562/99 and 52620/99 (11 January 2006).
18 Associated Society of Locomotive Engineers and Firemen (ASLEF) vs. UK [2007] ECHR184.
19 App No 67336/01 (30 July 2009).
20 National Union of Belgian Police vs. Belgium (1975) 1 EHRR 578; Swedish Engine Drivers Union vs. Sweden (1975) 1 EHRR 617.
21 (1978) 2 EHRR 1. The court had previously found that birching did not breach Article 3 and in overruling its previous decision confirmed that the instrument would be interpreted in light of societal changes within the member states.
22 (1993)16 EHRR 462 [35].
23 (2000) 29 EHRR 403 [101].