Freedom Of Association And Strikes Notes

ESSAY PLAN 2 – Freedom of association and strikes

Art 11: “everyone has the right to...freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

Collective bargaining

Old law

Belgian police and Swedish Engine Drivers – right to join a trade union implicitly includes the right for the union to be heard on employment issues at the work place, but Art 11 does not prescribe any particular way the State should guarantee this such as a right to engage in collective bargaining.

= Art 11 simply imposes a duty on member states to have in place mechanisms that enable trade unions to represent their members but does not guarantee any particular means by which this is to be done.

Developed law

Barrow (2010) – Strasbourg Court becoming “more proactive”, and has “repudiated its earlier cautious attitude.... the right to bargain collectively is an essential elements of the right and that action to enforce legitimate collective bargaining can be treated as corollary to that right”.

Wilson and Palmer – employer discriminated against union members by providing certain financial benefits only to those employees who were not union members contravened Art 11. Employers had refused a pay rise to employees who refused to transfer to personal contracts in place of collectively agreed terms and conditions of employment. These contracts also required those who signed them to forgo the entitlement to be represented by a union in some or all of their dealings with the employer. While continuing to state that collective bargaining was not “indispensable for the effective enjoyment of trade union freedom”, the court affirmed that “the union and its members must be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members... employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf”.

Important in that state’s positive obligations brought into play despite the fact that two private parties.

Although Art 11 does not encompass collective bargaining per se, it is of the essence of the right to join trade unions for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. The role of the state is to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations.

Ewing (2003) describes this case as a “significant break with the past” and says it “restores confidence in Art 11”.

BUT – still does not include a right to collective bargaining. Although collective bargaining is one of the ways by which trade unions may be enabled to protect their members’ interests, it is not essential for the effective enjoyment of trade union freedom.

Changes made by ERelA 2004 – s146 and 145 coverage extended from employees to workers; action short of dismissal was renamed detriment so as to include omissions (s146), workers have right not to be induced to give up union membership, activities or services).

ASLEF v UK – EctHR declared that statutory interference with union rules that barred members from being members of a particular political party were contrary to Art 11 rights as trade union freedoms under Art 11 include the right for unions to determine their own rule book structure subject to the requirements that the rules were not arbitrary or oppressive in nature.

Barrow (2010): “more expansive analysis...has now been further extended”...

Demir and Baykara (Grand Chamber) – 17 judges unanimously held that there had been a breach of Art 11 on two grounds: the interference with the right of the applicants to form a trade union, and on the account of the annulment of the collective agreement entered into by the trade union following collective bargaining with the employing authority. The action concerned the annulment by the Turkish courts of an existing collective agreement between a union representing municipal civil servants and a Council which violated Art 11.

reversed its previous view that the right to bargain was not an inherent element of Art 11. “The right to bargain collectively with an employer has in principle become one of the essential elements of the right to forma and to join trade unions for the protection of interests set forth in Art 11”.

Used ILO Conventions 98 and 151, Art 6 Social Charter (even though Turkey had not accepted it!) and Art 28 of the EU Charter of Fundamental Rights (even though this was a treaty which could not bind Turkey). This represents a “complete u-turn” (Ewing and Hendy, 2010).

ILO Convention 87: all workers without distinction shall have the right to establish and to join organisations of their own choosing without previous authorisation.

ILO Convention 98: workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment and their organisations should enjoy adequate protection against interference by other organisations and by employers in their establishment, functioning and administration.

The case also “produced another rabbit from its brimming hat” (Ewing and Hendy, 2010) in relation to Art 11(2) – it was easy for the Turkish gov to say that the restriction on civil service unions was prescribed by law and it had a legitimate aim, but the court refused to accept that the restrictions were necessary in a democratic society for any of the purposes permitted by Art 11(2”). They were not proportionate in light of international labour standards, regional labour standards and the practice of other countries (of which Turkey obviously has no control).

A member state must not discourage collective bargaining and it must respect freedom to take collective industrial action. The case does...

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