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The right to engage in collective bargaining
[ch 5: page 113-114]The right to bargain collectively is a core element of the right to form and to 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 key case:
Mr Demir belonged to a Turkish civil servants’ union that reached a collective agreement with the municipal council. Collective bargaining under the agreement led to pay increases and other benefits. The municipal council then breached some of its obligations under the agreement, and a legal claim was made to the Turkish courts. The Turkish courts 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 European Court of Human Rights in which the court confirmed that the right to bargain collectively with the employer is an essential element of the right to form and to 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 right to engage in collective bargaining, supported by strike action where necessary (see Chapter 9) is enshrined in several key international and European laws and conventions. Here are the main ones:
• Article 6(2) of the European Social Charter: The Social Charter 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: The Charter of Fundamental Rights states that all workers have the fundamental right to negotiate and conclude collective agreements at the appropriate levels and in cases of conflicts of interest, to take collective action to defend their interests, including strike action; and
• Article 4 of the International Labour Organisation (ILO) Convention on the Right to Organise and Collective Bargaining 1949: The ILO Convention states that appropriate national measures shall be taken to encourage and promote the full development and utilisation 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.
In January 2104, the European Union adopted a new Directive on Public Procurement. Paragraph 37 requires member states to take measures to ensure compliance with national and EU labour laws and collective agreements in the context of outsourcing (see Chapter 12).