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Trade union rights are human rights
[ch 5: pages 138-140]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:
A Turkish civil servants’ union 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. The ECHR 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, governments are given 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 (Vining v London Borough of Wandsworth [2017] EWCA Civ 1092). See Chapter 11: Redundancies.
Article 11 rights are currently the focus of two ongoing legal challenges to the limitations in the statutory recognition procedure, in the cases of IWGB v University of London Case Number: TUR1/1027[2017] and IWGB v CAC and Roofoods Limited t/a Deliveroo [2018] EWHC 3342. See page 142 for more information.
International labour laws and conventions
International laws and conventions are vital to trade unionists, especially when 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 includes the right to engage in collective bargaining.
The UK government has ratified several key laws and conventions, in particular:
• 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 (ECHR) made by the Council of Europe: 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 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.
• 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. The ESC is a Council of Europe treaty that guarantees fundamental social and economic rights as a counterpart to the ECHR, which concerns civil and political rights. It is separate from the European Union (EU).
• Article 12(1) of the Charter of Fundamental Rights of the EU: The Charter gives everyone the right to freedom of peaceful assembly and freedom of association at all levels, in particular political, trade union and civic matters, which implies the right for everyone to form and to join trade unions for the protection of their interests.
• Article 28 of the Charter of Fundamental Rights of the EU: 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 final two entries on the above list belong to the Charter of Fundamental Rights of the EU. Despite strong opposition, the current government insists that the Charter is to cease to apply once the UK leaves the EU (section 5, European Union Withdrawal Act 2018).