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Trade union rights are human rights
[ch 5: pages 145-147]The European Court of Human Rights (ECHR) has confirmed that the right to bargain collectively is a human right, as a core element of the right to form and join trade unions under Article 11 of the European Convention on Human Rights (the right to freedom of association). This was established in the following landmark case:
Mr Demir belonged to a Turkish civil servants’ union that reached a collective agreement with the municipal council, leading to pay increases and other benefits. The council then broke the terms of the collective agreement and the workers made a legal claim to the Turkish courts, which responded by ruling that under Turkish law, it was unlawful for a trade union of civil servants to enter into collective agreements. The agreement was annulled and the workers were ordered to repay their pay increases. This led to a claim in the ECHR in which the court ruled that the right to bargain collectively with the employer is an essential element of the right to form and join trade unions. By preventing a trade union of civil servants from making collective agreements, Turkey was in breach of Article 11.
Demir v Turkey [2009] IRLR 766
The ECHR has confirmed that the right to freedom of association includes the right to strike (RMT v UK, [2014] ECHR 366, Tymoshenko v Ukraine [2014] ECHR 1016). However, it does not include the right to engage in secondary (solidarity) industrial action (i.e. strike action against an organisation that is not your employer). In the RMT case, the ECHR refused to rule that the UK’s ban on secondary action breaches Article 11. UK Industrial action laws are explained in Chapter 6.
The human right to bargain collectively imposes positive obligations on governments to support collective bargaining, but governments also have a wide “margin of appreciation” (i.e. flexibility) as to how they do this. In Unite v The UK, Application 65397/13, 3 May 2016, a challenge by Unite to the abolition of the Agricultural Wages Board, the ECHR ruled that the UK government’s positive obligation under Article 11 to support collective bargaining does not extend to providing a mandatory statutory mechanism for collective bargaining in the agricultural sector (see Chapter 4, page 101).
International labour laws and conventions
International laws and conventions are vital to trade unionists faced with a hostile government. The Demir ruling was particularly important because it was the first time that the ECHR relied explicitly on a range on international instruments to overturn past rulings, concluding that Article 11 had expanded to include the right to engage in collective bargaining.
The UK government has ratified several key laws and conventions, in particular:
• Article 6(2) of the European Social Charter (ESC): The ESC imposes on all member states of the Council of Europe a duty to promote collective bargaining.
• Article 28 of the Charter of Fundamental Rights of the European Union: This Charter gives all workers the fundamental right to negotiate and conclude collective agreements at the appropriate levels and in cases of conflict of interest, to take collective action to defend their interests, including strike action.
• The International Labour Organisation (ILO) Convention on Freedom of Association and Protection of the Right to Organise 1949 (Convention No.87): This Convention states that workers and employers have the right to establish and join organisations of their own choosing without previous authorisation, to draw up constitutions and rules, freely elect representatives, organise their administration and activities and formulate their programmes without state interference, and to organise.
• The ILO Convention on the Right to Organise and Collective Bargaining 1949 (Convention No. 98): This Convention states that appropriate national measures shall be taken to encourage and promote full development and use of voluntary collective bargaining machinery between employers or employers’ organisations and workers’ organisations, with a view to regulating employment terms and conditions using collective agreements.
• Article 11 of the European Convention on Human Rights: This Article states that everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of their interests. No restrictions can be placed on the exercise of these rights unless prescribed by law and 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 and freedoms of others. There are exceptions for the police, armed forces and state administration.
• European Union Directive 2014/14/24/EU on Public Procurement (outsourcing): Paragraph 37 of this Directive requires member states to take measures to ensure compliance with national and EU labour laws and collective agreements in the context of outsourcing.