Landmark European decision on right to collective bargaining discussed

UCD School of Law

2010 Distinguished Guest Lecture; Professor Keith Ewing, Professor of Public Law, Kings College London, President Institute of Employment Rights

I had the pleasure of being invited to this lecture which was a follow on to the excellent seminar organised by the UCD Law School on twenty years of the Industrial Relations Act, 1990 in July. (The papers from that were launched as a book following the lecture. Available from Round Hall Press. Much more than a commentary on the Act; an overview of our IR dispute resolution machinery)

 The subject of Professor Ewing’s lecture was the decision of the European Court of Human Rights in Demir and Baykara v Turkey . (Application no. 34503/97;) Read full case report  

Professor Ewing described this as a landmark case and one of the most important in his entire career as a labour lawyer. ‘You wait a lifetime for a case like this but it is worth the wait.

Mrs Demir was a member of the union and Mr Baykara its president. Their union entered into a collective agreement with the local council in Gazientap  in Turkeyin 1993 covering the usual range of workplace issues. Not long after, the council thought better of it and decided to break the agreement.

The union sought enforcement of the agreement; succeeded but after some further legal to-ing and fro-ing a superior court, the Court of Cassation ruled that while unions had the right to exist; that was it. They had no right to collective bargaining. (Incidentally, the court ruled that any benefits union members got were void AND council officials who had signed off on them would be liable for the losses if they could not be recovered from the workers!!!)

Eventually, Demir and Baykara, on behalf of the union, claimed at the European Court of Human Rights (ECtHR) that the right to collective bargaining was established by article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 11 states:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

The Court noted the declaration of the right in article 11(1) and the restrictions under article 11 (2). It held that these had to be strictly construed and that they could not limit the right to organise. Any restrictions imposed by the state had to be shown to be legitimate and civil servants could not be treated as “members of the administration of the state”. The court went on to rule that the right to collective bargaining with an employer had become one of the essential elements of the right to form and join trade unions, guaranteed under article 11.

This means that the right to freedom of association includes the right to collective bargaining.

Professor Ewing noted that in arriving at this conclusion the Court had to find a way of essentially departing from one of the central pillars of judicial decision making; precedent, and had to confront an established body of jurisprudence.

A number of cases in the 1980’s (details available) had ruled that while the right to trade union membership existed, acting on that right was another matter, and was not protected by law. This is the settled position in this jurisdiction also.

It did so by ranging widely and reviewing material such as the ILO convention 98 on the Right to Organise and Bargain  and the NICE Treaty, for example in an attempt to update what is meant by the right to collective bargaining and the court followed the ILO jurisprudence in determining the necessary standard of compliance.

The implications of this case are clear according to Professor Ewing and the reasoning of the court can not be limited to the right to bargain but extends to the right to strike, on the basis that industrial action is a human right. What is more, this probably covers all types of action including ‘political’ strikes (days of action etc).

Bear in mind also that the Charter of Fundamental Rights which, to many people was the strongest reason for voting Yes to Lisbon contains an identical provision to that in the ECHR which grounded the Demir and Baykara case. (Demir etc was decided before the Lisbon Treaty was passed)

Ewing is clear about the implications of this.

Irish constitutional law and employment law students learn that the corollary of the freedom of association is a freedom to disassociate, and in the particular case of the Ryanair and earlier Supreme Court judgements the right to run a ‘union free company’. In his view the Supreme Court decision is incompatible with the Demir decision and irreconcilable with ILO conventions.

Tony Kerr in concluding would go no further than to say that the decision was ‘significant for Ireland’. Precisely how this will work its way through the system we will have to wait and see. Trade union membership is about 30% of the working population and Ryanair can’t be to blame for all of that, so those who see this decision as a panacea may be engaging in wishful thinking.

Finally Keith Ewing noted that it was a remarkable coincidence that the European countries which had the most highly developed union rights were the ones doing best in the current economic challenges!

Please see link to UCD Diploma in Employment Law course on Links page. We at Workplace Solutions strongly recommend this course