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Trade union rights are human rights
[ch 5: pages 129-130]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 human 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 take secondary (solidarity) industrial action (that is, strike action against an organisation that is not your employer). The ECHR has refused to declare the UK’s ban on secondary action a breach of Article 11 (RMT v UK, [2014] ECHR 366). UK industrial action laws are explained in Chapter 6.
The human right to bargain collectively imposes positive obligations on governments to support collective bargaining. However, in practice, governments have a wide “margin of appreciation” (that is, plenty of flexibility) as to how they achieve this (Unite v The UK, Application 65397/13, 3 May 2016).
The human right to bargain collectively includes the right to be consulted collectively over proposed redundancies under section 188-192, TULRCA (Vining v London Borough of Wandsworth [2017] EWCA Civ 1092). See also Chapter 11: Redundancies.