UNIVERSITY OF EAST ANGLIA – SCHOOL OF LAW
Alain MONKAM
LL.M. LAW – M14 X – DISSERTATION: EMPLOYMENT LAW
16 AUGUST 2010 – 11909 WORDS
The UK’s right to strike
and the potential impacts of the European Laws
“This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and than no quotation from the thesis, nor any information derived therefrom, may be published without the author’s prior written consent”.
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TABLE OF CONTENTS
I. INTRODUCTION 3
II. CONFLICTING PROVISIONS 7
1) THE NEGATIVE UK’S LAWS 7 a) Origin of the negative right to strike 7 b) Evolution of the negative right to strike 10 c) Containment of the negative right to strike 12
2) THE POSITIVE EUROPEAN INSTRUMENTS 15 a) The implied right to strike 15 b) The express right to strike 18
III. EMERGENCE OF THE CASE LAW 21
1) THE ECJ CASE LAW 21 a) Decisions 22 b) Potential legacies vis-à-vis UK’s Law 23
2) THE ECtHR CASE LAW 26 a) Evolution of the case law 26 b) Implications of the case law 28
3) THE CURRENT DOMESTIC RECEPTION 31
IV. CONCLUSION 35
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I. INTRODUCTION
In Europe, the strike is a ‘social phenomenon’ 1 which emerged on the eve of the modern industrial societies. The trade unions and the workers had recourse to industrial actions in order to put the employer under pressure, to balance his financial power and to negotiate better working conditions and wages. Though, a strike appears to be one form of industrial actions. It consists of the simultaneous and coordinated withdrawal of labour by workers. Industrial actions also include go-slow, work-to- rule, overtime ban, ban on particular duties or any form of partial stoppage of work. 2 The primary reaction of the European States was to ban any legal possibility of the workers to assembly and defend their rights. At the turn of the mid ninetieth century, legislation start to soften under social pressure in many countries and the bans were lifted (at least on criminal grounds).
As regards the UK, the Conspiracy and Protection of Property Act 1975 repealed the Master and Serviant legislation. 3 Nevertheless, the UK has never affirmed a positive right to strike. Instead, since the beginning of the twentieth century, the UK has developed a concept of negative right to strike that is far different from the usual right to strike met in most of the continental European countries. Actually, there is no right to strike in the UK. No statute and no constitution provide for such positive right of the workforce to withdraw its labour. However, the trade unions which organise an industrial action and the employees who take part in it, have gained immunity against liabilities that might derive from the law of tort.
The Trade Union and Labour Relations (Consolidation) Act 1992, s 219 states that an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
1 Expression found in Otto Kahn-Freund and Bob Hepple, Laws Against Strikes: International Comparisons in Social Policy (The Fabian Society, London 1972) 5. 2 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York, 2003) 6. 3 Ian Smith and Gareth Thomas, Smith & Wood’s Employment Law (9th edn OUP, London 2007) 701. 3
Moreover, the Conservative governments of Ms Thatcher and Mr Blair tremendously complicated the exercise of the right to strike by the subjection to a stringent procedure requiring to notify the employer and to hold of ballot. 4 Though the Labour party came into power in 1997, this legislation was maintained with some simplificatory changes. 5 The individual employees were also afforded the right to be protected against dismissal in so far the industrial action lasted no longer than 12 weeks.
The UK negative concept of right to strike is in contrast with other European rights to strike e.g.: 6
• In France, the preamble of the Constitution states that ‘the right to strike is exercised according to the statutes governing such rights’. The Constitution of Italy has a similar wording as regards the right to strike.
• In Germany, the right to strike is not acknowledged by the Constitution; it has been developed through the case law of the courts on the basis of article 9(3) of the Constitution of the Bundesrepublik Deutsland which guarantees the right to form associations, to safeguard and improved working and economic conditions to everyone and to all occupations.
• In the Netherlands and in Belgium, the right to strike is not affirmed by the Constitution. However, it derives from the construction that the local courts have given to international instruments that these countries have adopted, namely article 6(4) of the Revised European Social Charter (ESC) stating that ‘With a view to ensuring the effective exercise of the right to bargain collectively, parties undertake […] to promote the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously’.7
4 Ruth Dukes, ‘the right to strike under UK law: not much more than a slogan?’ (2010) 39 ILJ 82. 5 Bob Simpson, ‘Recent Legislation – Strike Ballots and the Law: Round Six – Code of Practice on industrial Action Ballots and Notice to Employers 2005’ (2005) 34 ILJ 331; Bob Simpson, ‘Recent Legislation – Code of Practice on industrial Action Ballots and Notice to Employers 2000’ (2001) 30 ILJ 194. 6 Arabella Stewart & Mark Bell, ‘The Right to Strike: A Comparative Perspective. A Study of National Law In Six EU States’ the website of the Institute of employment rights < http://www.ier.org.uk/system/files/The+Right+to+Strike+A+Comparative+Perspective.pdf > accessed 2 July 2010 7 In the Netherlands, the Supreme Court recognised (very lately) the fundamental nature of the right to strike in the NS case, according to the European Social Charter - HR 30 May 1986, NJ 1986, 688 4
The evolution of Belgium and the Netherlands are quite interesting because it touches the core issue of this paper. The European Community has never had competence in respect of the right to strike. Article 118 of the Treaty of Rome limited the social powers of the Commission to: 8
• employment • labour and working conditions • basic and vocational training • social security • prevention of occupational accidents and diseases • occupational hygiene • the right of association and collective bargaining between employers and workers
The Treaty of the functioning of the European Union (consolidated version), article 153 even states that the European Union shall not support and complement the activities of the Member States in the fields relating to ‘the right of association, the right to strike or the right to impose lock-outs’. 9
Despite the absence of European jurisdiction relating to the right to strike, the European courts found their way through the ‘back door’ and have recently developed important case law regarding this issue. In the one hand, the European Court of Justice (ECJ) confronts the right to strike to the Community laws, namely the freedom of establishment and holds that the use of the right to strike should be proportionate to the latter. In the other hand, the European Court of Human Rights (ECtHR) acknowledges a positive right to strike that (i) is not ‘absolute’, (ii) might be subject to restrictions and (iii) is protected by the European Convention on Human Rights, namely the article 11 relating to the freedom of association.
8 EC Treaty establishing the European Economic Community of 25 March 1957, not published, website of the European Navigator http://www.ena.lu > accessed 2 July 2010. 9 Consolidated version of the Treaty on the Functioning of the European Union (EC) [2010] OJ C83/117. 5
There are speculations about the potential influences that such case law would have on the UK courts. Will the UK courts gain a new power to assess the right to strike with respect to the principle of proportionality? Do the UK courts go towards a positive right to strike like Belgium or the Netherlands did earlier? Should the tortious immunities legislation be repealed in favour of a ‘Trade Union Freedom Bill’?10 Various questions arise as regards the possible impacts of the European approach of the right to strike.
In order to attempt to answer these questions, this paper will examine the conflicting provisions between the UK’s statutes and the European instruments (II). Afterward, it will focus on the recent case law of the ECJ and ECtHR plus its reception by the UK’s courts (III). It should be noted that for simplificatory reasons, this paper will limit to the right to strike at the collective level i.e. the trade union stage.
10 KD Ewing, The Right to Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006). 6
II. CONFLICTING PROVISIONS
The UK’s statutes have adopted a negative right to strike through the accordance of tortious immunities. In addition, the call for a valid industrial action was subjected to a stringent procedure. In contrast, various European instruments tend to acknowledge a full positive right to strike.
1) THE NEGATIVE UK’S LAWS
Sir Otto Kahn-Freund generally described the British industrial relationships as collective laissez-faire . In 1954, he wrote that 11
British industrial relations have, in the main, developed by way of industrial autonomy (…) It means that employers and employees have formulated their own codes of conduct and devised their own machinery for enforcing them (…) within the sphere of autonomy, obligations and agreements, rights and duties are, generally speaking, not of a legal character.
As regards specifically the UK’s laws on strike, it is noted that both the common law judges and the legislator have played a major role in the emergence of the negative right to strike, the Trade Dispute.
a) Origin of the negative right to strike
The British right to strike results from what can be called a ‘ping-pong game’ between the common law courts and the legislator.
In the first instance, the legislation and the common law were perfectly in line and consistent with each other. In the ninetieth century, it was a criminal offence under the Master and Servant Act to break a contract of employment. The 1825 Act created the offences of molestation, obstruction and intimidation.
11 Otto Kahn-Freund, ‘Legal Framework’ in A. Flanders and H. Clegg, The System of Industrial Relations in Great Britain (Oxford, 1954), 44. 7
The Criminal Law Amendment Act 1871 made all picketing illegal. Posting-up a strike notice was even held to constitute intimidation of the employer. 12
In addition to statutory liabilities, the common law courts had developed the doctrine of restraint of trade which created civil liabilities in relation to the simple fact to be member of a union or the simple existence of unions itself as organizations.13 In R v Bunn ,14 London gas workers who were threatening to start a strike, were convicted of the common law of conspiracy by threatening to break their contracts and by their unjustifiable annoyance and interference with masters in the conduct of their business. 15
The year of 1871 appears to be the turning point since various legislations started to be enacted:
• Enacted under the Liberal government, the Trade Union Act 1871 declared that the purposes of a trade union should not be, by reason of being in restraint of trade, unlawful. A member of a union should not be liable to criminal prosecution and any agreement of the union should not be void or voidable.16
• After the 1874 general election, the incoming Conservative government went further than its predecessors Liberals. It introduced the Conspiracy and Protection of Property Act 1875 which repealed the Master and Servant Acts together with the 1871 Act.
However, the ‘ping-pong game’ started between the courts and the Parliament. Between 1891 and 1906, the courts counterbalanced the protection of strikers against criminal law by expanding the scope of tortious liability. The tort of conspiracy to injure and the tort of inducing a breach of contract were developed and applied to industrial action. 17
12 Simon Deakin & Gillian S Morris, Labour Law (5 th edn OUP, Portland 2009) 894. 13 Paul Davies and Mark Freedland, Labour Legislation and Public Policy (Clarendon Press Oxford, 1993) 14. 14 (1872) 12 Cox CC 316. 15 See n.12. 16 See n. 13. 17 Simon Deakin & Gillian S Morris, Labour Law (5 th edn OUP, Portland 2009) 895. 8
In 1901, the Taff Vale case 18 ‘struck a blow at the heart of the trade union movement’. 19 The House of Lords held that a registered trade union could be liable in tort for damages although it was inferred from the Trade Union Act 1871 that the a trade union could not be sued nor sue because of its non body corporate nature. In this case, Farwell J argued that
The Legislature in giving a trade union the capacity to own property and the capacity to act by agents has, without incorporating it, given it two of the essential qualities of a corporation (…). The principle on which corporations have been held liable in respect of wrongs committed by its servants or agents in the course of their service and for the benefit of the employer - qui sentit commodum sentire debet et onus - (see Mersey Docks Trustees v. Gibbs (1)) is as applicable to the case of a trade union as to that of a corporation.
Weeks later after the Taff Vale , the Irish case Quinn v Leathem was decided too. 20 The House of Lords stated that the Conspiracy and Protection of Property Act, 1875 had nothing to do with civil remedies (…) A combination of two or more, without justification or excuse, to injure a man in his trade by inducing his customers or servants to break their contracts with him or not to deal with him or continue in his employment is, if it results in damage to him, actionable [in tort].
Even if the Quinn case was overshadowed by the Taff Vale case, these both decisions triggered a political pressure in favour of a new legislation. A Liberal Government was elected with the support of the Labour Party in formation and brought a new legislation. During the debate, Richard Wentworth Beaumont, an MP Representative stated that ‘such legislation is necessary to prevent workmen being placed by judge-made law in a position inferior to that intended by Parliament in 1875’. 21
18 Taff Vale Rly Co v Amalgamated Society of Railway Servants [1901] AC 426, HL. 19 Graeme Lockwood, ‘Taff Vale and the Trade Disputes Act 1906’ in KD Ewing, the Right To Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006) 25 20 [1901] AC 495, HL 21 John Saville, ‘The Trade Disputes Act 1906’ in KD Ewing, the Right To Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006) 75. 9
The Trade Disputes Act 1906 was then enacted:22
• it accorded immunity to trade unions against tortious liability • it gave immunity to any person who ‘in contemplation or furtherance of a trade dispute’ 23 committed the new tort of conspiracy, induced other people to breach a contract of employment or interfered with the trade, business or employment of another • it permitted peaceful picketing in trade disputes
The Trade Disputes Act 1906 laid down the basis of the UK’s negative right to strike and thus provided ‘the bedrock of the freedom to organize industrial action’ for decades.24 Formally, the trade unions and workers gained no fundamental right to go on strike. However, if they did, they were protected against civil liabilities that might result from their industrial action as long as such action complied with the golden formula i.e. ‘acts in contemplation or furtherance of a trade dispute’.
b) Evolution of the negative right to strike
In the decades following the adoption of the 1906 Act, the common law judges tried to lower its effect and its scope (as they did with the 1875 Act) by an important creativity consisting in the application of new or the resurrection of ancient torts.
Especially in the second half of the twentieth century, it is observed that there was a ‘shift by the courts from a strict and narrow construction of the economic torts to an often unstated and more frequently unreasoned assumption that action by trade unions, their officials and workers in threatening, calling for or organizing industrial action was tortious’. 25 For examples:
22 See n. 17. 23 A trade dispute was defined as ‘any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with the conditions of labour of any person’. 24 See n. 17 25 Bob Simpson, ‘The 1906 Act: The Second Fifty Years From Thomson v Deakin in 1952 to P v NASUWT in 2003’ in KD Ewing, the Right To Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006) 176. 10
• In Rookes v Barnard ,26 the House of Lords resurrected the tort of intimidation and held that
the threat by a respondent, without combination with others, to break his contract of service if the appellant were not dismissed had the nature or quality of a tortious act, actionable as such, the tort being the tort of intimidation; and s 1 [of the 1906 Act], though intended to give immunity from an action for conspiracy in respect of acts done in concert which would have been lawful if done by one individual alone, was not intended to give protection to the use of unlawful means, eg, the tort of intimidation
• In JT Stratford & Co Ltd v Lindley ,27 the House of Lords narrowly construed the meaning of trade dispute and held that the industrial action triggered by the refusal to recognise a trade union amounted to the inducement ‘to breach the hiring contracts and their members' contracts of employment without lawful justification’ [since it was not a trade dispute connected with terms of employment].
• In Torquay Hotel Co Ltd v Cousins ,28 the Court of Appeal spotted secondary actions and held that a trade union action consisting in informing oil companies that drivers would be unwilling to deliver oil to the plaintiff’s Imperial Hotel amounted to ‘deliberate and direct interference with the contract which prevented its due performance’.
Excepted the short period between 1971-1974 where the scheme was removed by the Industrial Relations Act 1971 but reinstated by the Trade Union and Labour Relations Act 1974, the Parliament reacted to the judges’ creativity by the extension of the statutory protection of the 1906 Act: 29
• the Trade Disputes Act 1965 gave immunity from the tort of intimidation applied in Rookes v Barnard ;
26 [1964] AC 1129,HL. 27 [1965] AC 269, HL. 28 [1969] 2 Ch 106, [1969] 1 All ER 522, CA. 29 Ian Smith and Gareth Thomas, Smith & Wood’s Employment Law (9th edn OUP, London 2007) 702 11
• the Trade Union and Labour Relations (Amendment) Act 1976 widened the immunity from the tort of inducement of breach of contract to cover commercial contracts and contracts of employment; it also extended the immunity to cover the development of the tort of interference with contract.
It will be seen in the next sub-section that the Conservative governments of the eighties and nineties adopted an alternative strategy of ‘containment’ of the statutory immunities by severe restrictions of the golden formula and tremendous complication of the exercise of the right to strike. Even the Labour Government of the late nineties did not amend substantially that stringent procedure.
c) Containment of the negative right to strike
Hostile to trade unions and industrial actions, the Conservative governments of Ms Thatcher and Mr Major adopted a ‘step by step’ approach to restructuring the law. Most of the changes were made in six pieces of legislation: 30
• the Employment Acts 1980 and 1982 • the Trade Union Act 1984 • the Employment Acts 1988 and 1990 • the Trade Union Reform and Employment Rights Act 1993
The golden formula lost various immunities such as regarding secondary action and secondary picketing. It was also removed the defences from industrial action taken, or the threat of industrial action made, to put pressure on employers to enter into commercial dealings with companies recognising trade unions.
30 Bob Simpson, ‘The 1906 Act: The Second Fifty Years From Thomson v Deakin in 1952 to P v NASUWT in 2003’ in KD Ewing, the Right To Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006) 184. 12
The definition of trade dispute was narrowed in two respects: first, it would only refer to a ‘trade dispute (…) related wholly or mainly’ to a protected purpose. The old wording ‘ trade dispute connected with..’ was repealed because it was too broad.31 Second, the scope of the trade dispute was limited to disputes between workers and their employers. This amendment was also meant to disqualify secondary actions.
One of the most important changes related to the requirement for action industrial to have the support of a ballot. 32 This procedure was amended several times by both the Conservative governments and the Labour Governments. When it came into power, the latter brought some clarifications but it maintained the general framework.
The whole scheme is nowadays found in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), s 226 to s 234. As the ballot procedure stands, it is very tricky since a trade union has to comply with a number of complex steps: 33
• Notice: no later than one week before the ballot, the trade union has to give the employer notice of its intention to hold a ballot. The notice must provide mandatory information, e.g. as regards the employees concerned by the ballot in terms of workplaces, categories, numbers but no names. 34 • Sample voting paper: no later than the third day before the opening day of the ballot, the trade union has to supply the employer with a sample voting paper which provides mandatory information too. 35 • Employees concerned by the vote: the trade union has to make sure that the entitlement to vote is accorded to ‘all members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case may be, to continue to take part in the industrial action (…)’. 36
31 See TULRCA 1992, s 218 relating to the current meaning of trade dispute. Also see discussion page 24 forward. 32 Bob Simpson, ‘Trade Disputes and Industrial Action Ballots in the Twenty-First Century’ (2002) 31 ILJ 270. 33 Caroline Carter, Jonathan Ions, ‘Staff Wars: Can Employers Strike Back?’ [2002] ELN 139; Alain MONKAM, ‘Despite the changes to the law since 1997, taking part in industrial action is still an extremely risky business for employees, as is the organising of industrial action for trade unions?’, Coursework Paper (2010). 34 TULRCA, s 226A. 35 Ibid, s 226A(1)(b) ; Ibid s 229. 36 Ibid, s 227. 13
• Workplaces concerned by the vote: separate or aggregated ballots should be held depending on the relevant statutory rules. 37 • Conduct of the ballot: besides some exceptions, the basic rule is to hold secret postal ballot governed by a stringent statute. 38 • Information of the result: both the voters and the employer should be informed ‘as soon as is reasonably practicable’. 39 • Notice of industrial action for employer: no later than one week after the disclosure of the ballot results, the trade union must do a formal notice to the employer that provides mandatory information. 40 • Calling of the industrial action: the trade union calls of the industrial action within a maximum 4- week period from the date of the ballot result, unless the parties agree to extend it of up to 4 more weeks. 41 Should such period expire, the trade union would have to start all the process again!
As a consequence of the step-by-step restructuring carried out by the Conservative governments, the organisation of an industrial action has become a very complicated and expensive process for trade unions. One can wonder whether this UK’s negative right to strike would amount to the effective absence of right to strike. Between 1983 and March 1996, there were 204 legal actions against trade unions of which 137 were successful application for an injunction to stop the strike. 42 Like an author puts it, the right to strike under UK law isn’t it much more than a slogan? 43
Such interrogations raise the question of the possible influence of the European Union on the UK’s right to strike.
37 Ibid s 228; 228 A. 38 Ibid, s 230. 39 Ibid, s 231; 231 A. 40 Ibid, s 234A. 41 Ibid, 233; 234. 42 Simon Deakin & Gillian S Morris, Labour Law (5 th edn OUP, Portland 2009) 898. 43 Ruth Dukes, ‘the right to strike under UK law: not much more than a slogan?’ (2010) 39 ILJ 82. 14
2) THE POSITIVE EUROPEAN INSTRUMENTS
As pointed out in the introduction of this paper, the Community has no competence and does not legislate in respect of the right to strike. The Treaty of the functioning of the European Union (consolidated version), article 153 s expressly excludes such competence. 44 However, the right to strike is recognised in a number of European (and international) instruments either impliedly or expressly.
a) The implied right to strike
Those advocating for international protection, in particular protection afforded by regional European instruments, provide various reasons.
First of all, the positive right to strike would be derived from the freedom of association. Freedom of association is recognised as a fundamental civil liberty and is guaranteed under international instruments such as the European Convention on Human Rights 1950, the International Covenant on Civil and Political Rights 1966 and the Constitution of the International Labour Organization (ILO). 45
Article 11 of the ECHR (ratified by the UK on 8 March 1951) states that 46
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.
It is said that article 11 safeguards the freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. 47
44 See n. 9. 45 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 65. 46 European Convention on Human Rights of 4 November 1950, website of Human Constitutional Rights < http://www.hrcr.org/docs/Eur_Convention/euroconv.html > accessed 13 July 2010. 47 Catherine Barnard, EC Employment Law (3 rd Edition, OUP, New York 2006) 770; National Union of Belgian Police v Belgium , 27 October 1975, Eur. Ct HR Rep., Series A, No. 19 (1975), para. 40. 15
ILO Conventions No. 87 (ratified by the UK on 27 June 1949), article 2 states that 48
Workers and employers without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.
There is no express reference in the ILO Convention to the right to strike. However, ILO supervisory bodies have consistently affirmed (i) that the right to strike is one of the essential and legitimate means by which workers and the trade unions may promote and defend their economic and social interests; (ii) such right is an integral part of the free exercise of the rights guaranteed by the Convention. 49
Manfred Nowak describes nicely freedom of association as ‘protection against arbitrary interference by the State or Private parties’. 50 In the opinion of Sheldon Leader, freedom of association is ‘the freedom of persons to do collectively what they are allowed to do individually’. 51 As regards the right to strike, the freedom of association enables the workers to collectively defend their interests. If an individual is legally entitled to refuse to work, so the coordinated withdrawal of labour should be permitted and protected. 52
The right to strike may also derived from the freedom of speech which is also a fundamental civil liberty protected by international instruments such as European Convention on Human Rights 1950, article 10. This article states that
Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Strikes are used to express workers’ opinions and therefore should be protected as speech. 53
48 C87 Freedom of Association and Protection of the Right to Organise Convention of 9 July 1948, website of ILO < http://www.ilo.org/ilolex/english/convdisp1.htm > accessed 13 July 2010. 49 Gillian S. Morris, ‘Freedom of Association and the Interests of the State’ in K.D. Ewing, C.A. Gearty and B.A. Hepple, Human Rights and Labour Law, Essays for Paul O’Higgins (Mansell Publishing Limited, New York 1994) 31. 50 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl/Strasbourg/Arlington, Vir. : Engel, 1993) 385. 51 Sheldon Leader, Freedom of Association, A Study in Labour Law and Political Theory (New Haven, Conn./London: Yale University Press, 1992) 23 and 200. 52 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 68. 53 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 71. 16
Freedom from forced labour should also be accepted as one of the grounds for international and European protection of a right to strike. Since 1945, forced labour has come to be seen a mean of political and social coercion and has fallen within the protection of human rights. 54 As a result, the Abolition of Forced Labour Convention was adopted in 1957.
The Abolition of Forced Labour Convention 1957, article 1 states that forced or compulsory labour should be suppressed as: 55
( a ) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; ( b ) As a method of mobilising and using labour for purposes of economic development; ( c ) As a means of labour discipline; ( d ) As a punishment for having participated in strikes;
( e ) As a means of racial, social, national or religious discrimination.
As regards right to strike, no criminal sanction is imposed anymore for the failure to perform an employment contract. However, injunctions against trade unions restraining from calling for strikes or dismissal of participants might be construed as compulsion to work. 56 In such extent, the right to strike can be linked to the fundamental freedom from forced labour and require International and European protection.
After having examining the implied right to strike in European and international instruments, the next sub-section will focus on the European instruments which expressly protect such right.
54 Lammy Betten, International Labour Law, Selected Issues (Kluwer Law and Taxation Publishers, The Netherlands 1993). 55 The Abolition of Forced Labour Convention of 25 June 1957 , Website of ILO < http://www.ilo.org/ilolex/cgi- lex/convde.pl?C105 > accessed 15 July 2010. 56 Ruth Ben-Israel, International Labour Standards: The Case of Freedom to Strike (Deventer: Kluwer, 1988) 25; Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 69. 17
b) The express right to strike
The European Social Charter is one of the first European instruments to clearly and expressly provide for the right to strike. It was adopted in 1961 and was revised in 1996. However, the Charter has been ‘little known, rarely referred to and often ignored in practice’. 57 This might be explained by the fact that a State can be party to the Charter without being bound by all its provision. 58 This explanation would not apply to the UK as it ratified the Charter on 11 July 1962 and has accepted 60 out of 72 provisions (including article 6.4 below). 59
As regards the right to strike, the European Social Charter 1961, article 6.4 provides that 60
[t he Contracting Parties undertake to consider themselves bound by the obligations laid down in the following articles and paragraphs (…)] the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.
The second piece of European instruments to expressly refer to the right to strike was the Community Charter of the Fundamental Social Rights of Workers 1989. 61 Its article 13 states that
The right to resort to collective action in the event of a conflict of interests shall include the right to strike, subject to the obligations arising under national regulations and collective agreements.
57 Bob Hepple, ’25 years of the European Social Charter’ (1989) 10 Comparative Labour Law Journal 460. 58 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 132. 59 The United Kingdom and the European Social Charter, Table of Accepted provisions (June 2010), website of the Council of Europe < http://www.coe.int/t/dghl/monitoring/socialcharter/CountryFactsheets/UK_en.asp > accessed 18 July 2010. 60 The European Social Charter of 18 October 1961, website of the Council of Europe
It should be pointed out that this Charter was signed by all European Member States except the UK during the Strasbourg summit in 1989. Although the Charter was not incorporated into Community law by means of binding instrument, it has been invoked by the European Court of Justice as an interpretative tool. 62
It is also noted that both Community Charter 1989 and the European Social Charter 1961 subject the right to strike to ‘national regulations’ and/or ‘collective agreements’. Such requirement would reduce the influence of these European instruments on certain Member States, for instance the United Kindom.
The third piece of European instrument is the Charter of Fundamental Rights of the European Union adopted in 2000, revised in 2007. 63 The European Parliament describes the Charter’s rights as ‘based on the fundamental rights and freedoms recognised by the European Convention on Human Rights, the constitutional traditions of the EU Member States, the Council of Europe's Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties’.64
In particular, this Charter recognises the right to strike. Article 28 relating to right of collective bargaining and action states that Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the 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.
The 2007 Charter links the right to strike to collective bargaining, which emphasizes that the primary purpose of a strike should be to put pressure on the employer in the course of negotiations of employment matters. 65
62 Catherine Barnard, EC Employment Law (3 rd Edition, OUP, New York 2006) 13; Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutches Rotes Kreuz [2004] ECR I-000, para 91. 63 Charter of Fundamental Rights of the European Union [2007] OJ C303/1. 64 The Charter of Fundamental rights of the European Union, Introduction (July 2010), website of the European Parliament < http://www.europarl.europa.eu/charter/default_en.htm > accessed 19 July 2010. 65 See n. 62. 19
It is pointed out that the 2007 Charter came into force with the Treaty of Lisbon which was signed by the Member States on 13 December 2007, which at its turn came into force on 1 st December 2009.
However, the UK and Poland entered into a special Protocol No 7 which opted out of the Charter since its article 1(1) provides that 66 The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
In conclusion, this section has shown that a number of European instruments either expressly provide a positive right to strike or implied such right to strike. The right to strike (recognised at the European level) can be opposed to the UK’s ‘freedom of strike’. The freedom of strike would mean that ‘the strike is legally permitted and tolerated but no special privilege is granted; the legal limits of the strike are dictated by the general legal order’. By contrast, the right to strike would mean ‘that the legal order of the state must take precautions to ensure the exercise of the right and so the strike is privileged’. 67 How do the European courts, namely the ECJ and the ECtHR interpret and construct the right to strike? To what extent would such interpretation would or will be taken into account by the UK’s courts? Part III of this paper will focus of these issues.
66 Protocol No 7 on The Application of the Charter of Fundamental Rights To Poland and To the United Kingdom, website of the European Parliament < http://www.consilium.europa.eu/uedocs/cmsUpload/cg00002re01en.pdf > accessed 18 July 2010. 67 Catherine Barnard, EC Employment Law (3 rd Edition, OUP, New York 2006) 772. 20
III. EMERGENCE OF THE CASE LAW
Recently, the ECJ and the ECtHR have developed an important case law relating to the right to strike. The primary reception of this case law by the UK courts tend to be hostile, as expected, since they prefer to keep a margin of liberty and maneuver for the time being.
1) THE EJC CASE LAW
The ECJ has never had jurisdiction to enforce the protection of a right to strike in a Member States because of the lack of EC law on this subject. Nevertheless, the ECJ is attempted to develop its influence on this issue through the ‘back door’. 68 Such back door is opened when a litigant challenges national labour laws by EC law.
It is exactly what happened in two cases ITWF v Viking Line ABP 69 and Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet 70 where the ECJ recognised the “fundamental right to strike” as a principle of Community law. However, the ECJ also ruled that an industrial action might constitute a restriction to the freedom of establishment under articles 43 and 49 of the EC treaty 71 and so must obey the principle of proportionality. 72 Consequently, damages claims could be brought against trade unions where these principles are breached.
68 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 258. 69 ITWF v Viking Line ABP [2008] IRLR 143, ECJ. 70 Laval un Partneri Ltd v Svenska Bygggnadarbetareforbundet [2008] IRLR 160, ECJ. 71 Article 43 of the Treaty establishing the European Community TEC (currently article 49 of the Treaty on the Functioning of the European Union TFEU) states that ‘within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited (…)’. Article 49 of TEC (currently article 56 of TFEU provides that ‘within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended (…)’. 72 Katherine Apps, ‘Damage claims against trade unions after Viking and Laval’ (2009) 34(1) E.L. Rev. 141; A.C.L. Davies, ‘The Right to Strike Versus Freedom of establishment in EC Law: The Battles Commences’ (2006) 35 ILJ 75; Catherine Barnard, “Social Dumping or Dumping Socialism” (2008) 67 C.L.J. 262; Ronnie Eklund, ‘The Laval Case – Swedish Labour Court Decision No. 49’ (2006) 35 ILJ 2002. 21
a) Decisions
The Viking case,73 decided by the ECJ on 11 December 2007, related to a Finnish company (Viking Line, one of the largest passenger ferry operators in the world) that wanted to reflag its vessel (the Rosella) under the Estonian flag, which meant that the ship would be boarded with Estonian crew paid considerably less than the existing Finnish crew. The International Transport Workers’ Federation (ITF), which had been running a Flag of Convenience (FOC), started an industrial action by notifying to its affiliates to boycott the Rosella in every country where the Rosella could appear.
Viking brought proceedings against ITF in the English court and applied for an injunction to stop this industrial action on the grounds that it was a breach of the Articles 43 and 49 of the EC Treaty. The UK’s High Court held that the FOC policy was discriminatory and stated that ‘any measure which places an additional financial burden on a person so as to make the exercise of a free movement right more difficult constitutes a restriction on that free movement right [which is contrary to article 43]’.74 However, the Court of Appeal reversed the decision of the High Court, referred the case to the ECJ since ‘the case raised important issues relating to the interaction of key provisions of the EC Treaty dealing with free movement and the fundamental rights of workers to take industrial action’. 75
The Laval case,76 decided by the ECJ on 18 December 2007, related to a company incorporated in Latvia (Laval un Partneri Ltd ). Between May and December 2004, it posted around 35 workers to Sweden to work on building sites. It had signed collective agreements with the Latvian building sector's trade union, but it was not bound by any collective agreements with the relevant Swedish trade unions, none of whose members were employed by it. Svenska Byggnadsarbetareförbundet was the Swedish building and public works trade union. It sought to persuade Laval to sign its collective agreement for the building sector.
73 A summary of the facts are found in Viking Line ABP v International Transport Workers’ Federation [2006] IRLR 58, CA. 74 Viking Line Abp v International Transport Workers' Federation and another - [2005] All ER (D) 155 (Jun), QBD. 75 See n. 69. 76 A summary of the facts are described by the ECJ. See n. 70. 22
Laval refused to sign the collective agreement. The Swedish trade union commenced collective action against Laval. It blockaded one of Laval's building sites, preventing the delivery of goods onto the site, placing pickets and prohibiting Latvian workers and vehicles from entering the site. Svenska Elektrikerförbundet was the Swedish electricians' trade union which initiated sympathy action, with the effect that the Swedish undertakings belonging to the organisation of electricians' employers were prevented from providing services to Laval. Laval commenced proceedings in the national courts seeking a declaration that both the blockade and the sympathy action were illegal, an order that such action should cease and an order that the trade unions pay compensation.
Laval relied on articles 12 EC and 49 EC and Directive 96/71 precluding trade unions from attempting, by means of collective action, to force a foreign undertaking which posted workers to Sweden to apply a Swedish collective agreement. Laval also argued that these industrial actions amounted to an infringement of the freedom to provide services and discrimination on grounds of nationality. Accordingly, the national court stayed the proceedings, and referred the matter to the ECJ.
b) Potential legacies vis-à-vis UK’s law
In the Viking and Laval cases, the ECJ acknowledged the right to strike as a ‘fundamental right’ deriving from the range of international instruments stated in section I(2) above: the European Social Charter 1961, Convention 87 of the ILO and the Charter of Fundamental Rights of the European Union and Art.11 of the ECHR.
However, one of the most important legacies of the Viking and Laval cases is the control of proportionality test that the ECJ applies to the exercise of the right so strike when its conflicts with a community law, namely, the freedom of establishment protected by articles 49 et 56 of the TFEU. The legitimacy of the right to strike should be analyzed at ‘the light of the public interest objective’.
23
In both cases, the ECJ stated:
Although the right to take collective action, including the right to strike, has to be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the ECJ ensured, the exercise of that right may nonetheless be subject to certain restrictions. Those rights are to be protected in accordance with Community law and national law and practices (…) A restriction of the freedom of establishment can be accepted only if it pursues a legitimate aim compatible with the EC Treaty and is justified by overriding reasons of public interest..
The Viking case might have potential consequences because it should now return to the English courts for a final ruling. Legal scholars believe that in the UK, the Viking case might trigger a new development since the judges do not appreciate the motives, the aims and the merits of the industrial action (unlike in civil countries where national courts regulate industrial actions by the balance between the union's objectives and the potential the harm to the employer).77 The British court’s task is to ascertain whether the union has acted in 'contemplation or furtherance of a trade dispute' as provided by TULRCA 1992, s 219. However, such statutory and traditional limitations should precisely render unlikely the UK’s courts being involved in the application of the political proportionality test to industrial action. The proportionality test would be applied in so far a conflict with a Community law is involved, for example the freedom of establishment. Thus, it should be pointed out that in UK’s most cases, the exercise of the strike does not involve a Community law.
An industrial action takes place within a trade dispute between employers and workers or between the workers themselves. According to TULRCA, s 218, the trade dispute must be connected with one of the following matters: a) terms and conditions of employment, o the physical conditions in which any workers are required to work; b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers; c) allocation of work or the duties of employment as between workers or groups of workers; d) matters of discipline; e) the membership or non-membership of a trade union on the part of the worker; f) facilities for officials of trade unions; and g) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in carrying out of such procedures.
77 Davies, “One Step Forward, Two Steps Back?” (2008) 37(2) I.L.J. 126. 24
In the local context, it is difficult to imagine situations where a UK employer (or a foreign company carrying out activities in UK) could argue the freedom of establishment in order to defeat an industrial action which necessary relates to one of the above-listed matters. For example, if an industrial action is started on the issue of the increase of wages in a company, in what extent such industrial action would be detrimental to the company’s freedom of establishment? The proportionality test appears inapplicable out of international hypothesis like that developed in the Viking and Laval cases.
In so far a collective agreement or collective bargaining is the issue of the industrial action, such action may also conflict with the Community rules on competition provided by TFEU, articles 101 to 106 that prohibit all agreement ‘between undertaking or concerted practices’ restricting competition.
But such hypothesis has already been rejected by the ECJ. 78 In the Albany International case,79 the ECJ held that collective bargaining agreement fell outside the scope of EC competition law. The Court stated that certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers. However, the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 85(1) of the Treaty when seeking jointly to adopt measures to improve conditions of work and employment (…) [such agreement] be regarded as falling outside the scope of Article 85(1) of the Treaty.
At the conclusion of this analysis, the’ most impressionable legacy of the ECJ case law as regards UK’s law would be the qualification of the right to strike as a ‘fundamental right’. However, such statement should have limited influence on UK’s law since (i) the UK has opted out the Charter of Fundamental Rights of the European Union 2007 and (ii) ESC 1961 states that ‘the right to strike [is] subject to obligations that might arise out of collective agreements previously entered into’.
78 Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York 2003) 255. 79 Albany International BV v Stichting Bedrijfspensioenfonds Texielindustrie : C-67/96 [1999] ECR I-5751. 25
2) THE ECtHR CASE LAW
a) Evolution of the case law
The Court has started a change of its approach as regards the right to strike.
Back to Schmidt and Dahlström v Sweden case,80 the ECtHR implied that the right to strike was a union’s means to protect members’ interests. The case related to a three-month dispute involving lockouts and strikes following the expiry of the previous collective agreement. Eventually, a global collective agreement was reached with wage increases but it contained a clause that denied the benefit of those increases in respect of the period of the dispute to members of the unions who had taken part in the industrial action. The unions brought proceedings to the ECtHR which held that ‘examination of the file in this case does not disclose that the applicants have been deprived of this capacity’.
In Federation of Offshore Workers' Trade Unions (OFS) v Norway,81 the ECtHR reached a step further as it held that the right to strike is a 'complement to collective bargaining'.
The UNISON v UK case 82 is perfectly in line with the previous case as the ECtHR stated that ‘the ability to strike represents one of the most important means by which trade unions can fulfill [the function of protecting the occupational interests of their members’.
In Wilson and Palmer v the United Kingdom , the ECtHR was even clearer since it stated that the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members’ interests. 83
80 (1976) 1 EHRR 632. 81 (2002) ECHR 2002-VI, 301, ECtHR, at p 320. 82 [2002] IRLR 497, ECtHR. 83 Wilson and Palmer v The United Kingdom , Applications nos. 30668/96, 30671/96 and 30678/96, judgment of 2 July 2002, para. 46. 26
The last important evolutions are the DEMIR and another (applicants) v. TURKEY (respondent) case 84 decided on 12 November 2008 and Enerji Yapi-Yol Sen v Turkey case 85 decided on 21 April 2009.
As regards the facts of DEMIR case: the first applicant, Kemal Demir, was a member of the Turkish trade union Tüm Bel Sen . In 1993, the trade union entered into a collective agreement with the Gaziantep Municipal Council, concerning all aspects of the working conditions of the council's employees. When the council failed to fulfil certain of its obligations under the agreement, the union brought civil proceedings against it in the district court. The district court found for the union, but that decision was reversed by the Court of Cassation on the ground that there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements, as Turkish law stood. The district court stood by its original judgment on the ground that the right for trade unions (formed by civil servants) to enter into collective agreements was provided by international treaties, such as ILO which had already been ratified by Turkey. The Court of Cassation reversed again that second judgment of the district court.
The applicants complained to the European Court of Human Rights on the ground, amongst others things, that their rights to freedom of association under Article 11 of the European Convention of Human Rights had been violated.
The ECtHR ruled in favour of the union and held that both international and national, and to the practice of contracting states in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the right to form and to join trade unions for the protection of one's interests (…). [It] constituted, for the trade union, an essential means to promote and secure the interests of its members. The annulment of the collective agreement in question constituted inference with the applicants' rights under Article 11 [of the European Convention on Human Rights].
84 [2009] IRLR 766, ECtHR. 85 Application No 68959/01, judgment dated 21 April 2009. The judgment is available in French version only on the website of the ECtHR
Enerji Yapi-Yol Sen v Turkey case related to a circular from the Prime Minister's Public-Service prohibiting public sector employees from taking part in a national one-day strike organised by the Federation of Public Sector Trade Unions 'to secure the right to a collective bargaining agreement'.
For the first time, the Court recognised that Article 11 protects the right to strike and that state interference with that right must be justified in accordance with Article 11(2).86 The Court stated that the right to strike was not ‘absolute’ and could be subject to ‘restrictions’. However, the Court found that the adoption and application of the circular did not answer a “pressing social need” and that there had been disproportionate interference with the applicant union’s right to strike.87
b) Implications of the case law
Reversing its previous position, it is the first time where the ECtHR acknowledges that collective bargaining is an essential right protected by article 11 of the ECHR relating to the freedom of association. In the Demir case , the Court stated that the Court's case law to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 should be reconsidered, so as to take account of the perceptible evolution in such matters in both international law and domestic legal systems.
The implications of such decision as regards the right to strike were foreseeable if it is considered the evolution of the case law described in sub-section III(2)(a). Since the UNISON case, the Court has held that the right to strike was an important mean of the collective bargaining. If further, the Court states that collective bargaining is an essential element of the freedom of association as provided by article 11 of the ECHR, the right to strike should also protected by this same article 11.
86 ECHR, article 11(2) states that ‘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’. 87 Press release issued by the Registrar ‘Chamber Judgment ENERJI YAPI-YOL SEN v. TURKEY (21 April 2009), website of The Institute of the Employment Rights < http://www.ier.org.uk/system/files/European+Court+of+Human+Rights,+Chamber+Judgement+Enerji+Yapi- Yol+Sen+V.+Turkey.pdf > accessed 13 August 2010. 28
Such foreseeable evolution did not take long since several months after the Demir case, the Court made such inferences in Enerji Yapi-Yol Sen v Turkey.
What are the potential implications of the ECtHR case law on UK’s law on strike [on the collective level]? First, it should be noted that in 1998, the UK Parliament adopted the Human Rights Act (HRA 1998) that has been in force since 2 October 2000. It incorporates into domestic law the rights and liberties enshrined in the European Convention on Human Rights, a treaty to which the United Kingdom is signatory on 8 March 1951 but which had no application in domestic law until the HRA 1998.88
As a consequence of this Act, Convention rights must be taken into account by courts and tribunals when interpreting labour legislation. HRA 1998, s 3(1) requires both that legislation is to be read in a way which is compatible with Convention rights and that it is also to be given effect in a way which is compatible with those rights. 89 However, this section 3(1) specifies that this duty to read legislation in compatibility with Convention rights must be done ‘so far as it is possible to to do so’. 90
In bringing home the Convention by the HRA 1998, the legislation has also brought home the existing case law of the ECtHR.91 If this principle were extended to the right to strike, this ECtHR case law ‘ought to require a judicial change in approach to questions of industrial action so that the right to collective action is the starting point from which any restrictions will have to be justified, in contrast to the common law assumption that the illegality of industrial action is the starting point from which any immunities are to be justified and narrowly confined’.92
88 Introduction to the Human Rights Act 1998, UK Human Rights Blog (2010)
However, it can be counter argued that the Demir and Enerji Yapi-Yol Sen decisions related to cases where the existence of trade unions itself and their core activities were threatened because of a ban on collective agreement or a prohibition to take part in industrial actions. In such cases involving obvious breach of human rights, ECHR article 11 can efficiently plays a role. But in the UK, no comparable or similar situation of ban on trade unions’ activities should be identified, which should render the ECtHR case law irrelevant.
However, it is also noted that ‘both the Social Rights Committee of the Council of Europe and the ILO Committee of Experts (in its 2009 Observations) have restated again long-standing concerns about restrictions on the right to strike in the UK, which British governments have not done enough to address and which also might provide fertile ground for applications to the ECtHR’. In particular, as regards the scope of industrial action, ‘in 2009 the European Social Rights Committee concluded that the scope for workers to defend their interests through lawful collective action is excessively circumscribed, having regard, for example, (i) to restrictions that prevent 'a union from taking action against the de facto employer if this was not the immediate employer' or (ii) as regards prohibited secondary actions or (iii) sympathetic actions’.93
However, it can also be counter argued that in the Enerji Yapi-Yol Sen case, the ECtHR has clearly stated that the right to strike was not ‘absolute’ and could be subjected to ‘restrictions’. Thus, what can be construed as a valid restriction to the right to strike under the ECHR has to be specified by the case law.
At the end of this sub-section, it should be noted that the Conservative party pledged that it would repeal the HRA 1998 once in power. But, such repeal seems unlikely after the general election of June 2010. First, it is doubtful that the Liberals, who are part of the coalition government, would accept such repeal. Second, Lord Hope, the Deputy President of the UK Supreme Court, has explained that repealing the Human Rights Act would have little practical effect on the enforcement of rights in the courts.
93 Ibid 30
Lord Hope stated that 94 all that jurisprudence is there (…) the right of individual petition [against UK] will be there (…) If we take a decision which is contrary to the human rights convention, somebody is going to complain to Strasbourg and that may cause trouble for the UK . So it’s very difficult to see how simply wiping out the Human Rights Act is really going to change anything until we withdraw from the convention.
However, it is still rumored that the Government would adopt a Bill of Rights (that might attempt to supplement or restrict the HRA 1998).
3) THE CURRENT DOMESTIC RECEPTION
There are some first attempts to bring arguments coming from the European protection into UK’s case relating to the right to strike.
The Metrobus v Unite the Union case 95 was decided by the Court of Appeal on 31 July 2009, ie after Demir and Enerji cases.
The case opposed the defendant trade union represented bus drivers working for the claimant employer. In respect of a dispute over pay and conditions, the trade union gave notice to the employer that it intended to hold a ballot for industrial action. The notice was given by a letter from Mr Griffiths, the relevant regional industrial organiser for the union, to Mr Eatwell, the claimant's managing director. Some of the employees concerned by the ballot had their union contributions paid by deduction from their wages (a process known as “check-off”), but others did not. In respect of the non- check-off employees, the notice contained the figures and lists required by the statute, but no explanation as to how the figures had been arrived at. 2 days after he ballot was held, Mr Griffiths wrote to Mr Eatwell, informing him of the result of the ballot and gave notice of a 24-hour strike. After the strike took place, Mr Griffiths again wrote to Mr Eatwell giving notice of another 24-hour strike.
94 Interview with Lord Hope, Deputy President of the UK Supreme Court (Law Society Gazette 5 August 2010) UK Human Rights Blog
31
It was in similar form as the first strike notice. It lacked any explanation of how the figures for the non-check-off employees had been arrived at.
The employer applied to the High Court for an injunction to prevent the strike. The judge granted the injunction on the grounds that there were fatal defects in the notice of the ballot, the two strike notices, and in the failure of the union to notify the employer sufficiently promptly of the result of the ballot. The trade union appealed.
In the Court of Appeal, Mr Hendy QC for Unite
• argued that the provisions of TULRA as regards industrial action are to be seen in the light of Article 11 of the ECHR, and must be construed in such a way as to be consistent with the fundamental rights afforded by that Article; • submitted the UNISON case, the Demir case and also the Enerji Yapi-Yol Sen v Turkey case; • relied on the Viking case and submitted that European Community law recognises the fundamental nature of the right to strike; • showed the material concerning the ILO and the European Social Charter 1961 and some other international sources, including ‘criticism of the state of UK legislation as regards limitations on the ability of a trade union to call a strike’;
The Court replied that:
• article 11 did not recognise expressly either a right to collective bargaining or a right to take industrial action; • the Demir case did not address the question of the right to strike; • as regards the Viking case, ‘English law does of course recognise a right to strike, and exempts trade unions from the tortious liability that they would otherwise be under for calling a strike’; • the European instruments recognised that the right to strike may be subject to restrictions in so far such provisions do not make the exercise of the right very difficult or impossible in practice; • though article 11 of the ECHR had binding effect, the Member states kept a ‘margin of appreciation as regards conformity with the Convention’.
32
So, the Court held
The provisions [of English Law] are not disproportionate restrictions on rights under Article 11. They are imposed in an area in which a balance needs to be struck between the rights and interests of workers and their trade unions (…). The test is whether the restrictions go too far because of their complexity, detail and rigidity, so as to attenuate excessively the exercise of Article 11 rights. In that regard, it is not unreasonable or too onerous not to make the obligation to report the ballot to the employer conditional on there being a vote in favour of industrial action. Similarly, the requirement to provide an explanation of the figures, is not unreasonable, excessively onerous or disproportionate.
Though the approach taken by the Court of Appeal suggests ‘a reticence to engage with arguments based on international human rights and labour standards’ ,96 it is inferred from this case that the Court of Appeal has accepted to read the UK laws on strike in accordance with the ECHR, article 11. However, it was found that these legal restrictions (as regards notice requirement and ballot report) do not constitute disproportionate or unreasonable interference with the right to strike.
The findings of the Court of Appeal were also repeated in EDF Energy Powerlink Ltd v National Union of Rail, Maritime and Transport Workers , decided on 23 October 2009 by the High Court.97 The defendant trade union gave notice of a ballot for industrial action to the claimant employer. The latter argued that the ballot notice did not comply with TULRCA 1992, s 226A on the grounds that it was not able to identify the category of employees to be balloted. The employer brought proceedings and was granted an injunction restraining the trade union from calling industrial action on the basis of the ballot.
The High Court rejected the European arguments submitted by John Henry QC for the union and repeated that
The right to strike is not absolute and can be defined according to national law. Proportionate derogations from it may be permissible. According to the decision of the Court of Appeal in Metrobus Ltd v Unite the Union, the requirements as to pre-strike notification and ballots are not onerous or oppressive and do not unduly restrict the exercise of the right to strike.
96 See n. 95. 97 [2010] IRLR 114, QBD. 33
In British Airways plc v Unite the Union ,98 the case related to dispute between Unite the Union, the sole representative of cabin crew working and the employer, British Airways. In January 2010, the trade union gave notice to the employer of its intention to plan a ballot of its members (in December 2009, the employer had successfully applied for an interim injunction restraining a previous industrial action). The employer successfully applied again to the High Court for an interim injunction on the grounds that the union had not provided its members with information as to the number of spoiled ballot papers (11 out of 9282 votes). However, the Court of Appeal allowed the appeal on the grounds that the union was not required by TURLCA s 231 to prove that literally every eligible member was personally sent the applicable results, particularly where the workforce was highly computer-literate and information had been made available on relevant websites.
In this case, Mr Hendy QC did not bring any of ‘the European arguments’ of the Metrobus case though the case also related to the ballot result reports. It sounds like a confession of the failure of the line of arguments stemming from the European protection as regards the right to strike.
98 [2010] All ER (D) 189 (May), CA. 34
IV. CONCLUSION
The United Kingdom has adopted a concept of negative right to strike since a period of over one hundred years. The trade unions and the workers are protected from the liabilities that they might incur in tort from their industrial actions, though no statute expressly provides for a positive right to strike. The industrial action must comply with a golden formula which guarantees the scope and the goals of the strike.The organizers have also to follow a stringent procedure which is supposed to guarantee that they have the support of their members.
Such traditional concept of negative right to strike might conflict with a number of European instruments, namely the European Social Charter 1961 and the Charter of Fundamental Rights of the European Union 2007 that provide for a positive right to strike. Moreover, the European Court of Justice and the European Court of Human Rights have developed a recent case law that acknowledges the right to strike as a fundamental right or a right protected by the European Convention on Human Rights, article 11 on the freedom of association. However, each Court limits the right to strike. The ECJ holds that the right to strike must be subject to a test of proportionality when it comes to conflict with a Community law eg the freedom of establishment. The ECtHR specifies that the right to strike is not ‘absolute’ and it can be subject to restrictions in so far these restrictions comply with article 11(2) of the ECHR.
What influence would such European instruments and recent case law have on the domestic courts?
It is noted that the United Kingdom has opted out of some of the European instruments protecting the right to strike, namely the Charter of Fundamental Rights of the European Union 2007. Though, the United Kingdom is still party to the European Social Charter 1961 and the ECHR. The United Kingdom has also adopted the Human Rights Act 1998 which imports home the ECHR. There are rumors that the new Conservative Government might repeal the HRA 1998 but it is unlikely that would occur because of the opposition of their partner Liberals. In addition, such repeal might have little influence as long as the United Kingdom is still party to the ECHR.
35
The primary reception of the new European case law by the UK’s courts looks very hostile. The Court of Appeal has even stated that ‘English law does of course recognise a right to strike, and exempts trade unions from the tortious liability that they would otherwise be under for calling a strike’. This is a way to say that the European case law qualifying the right to strike as ‘fundamental right’ should bring no novelty.
As regards the protection afforded by article 11 of the ECHR (as held by the ECtHR), the courts keep a margin of appreciation and hold that the requirements relating to pre-strike notification and ballots do not constitute a disproportionate interference with the exercise of the right to strike. As regards the proportionality test suggested by the ECJ, the issue has not already been brought to a court but it is very unlikely that a judge would adopt such ‘political’ approach in local cases which do not involve an international matter.
According to the elements studied in this paper, it is very doubtful that the European influence would be able to strike down the one-hundred-year-old English tradition of a negative right to strike. However, the battle has just started and new developments should be expected.
***
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BIBLIOGRAPHY
BOOKS
• Gerald Abrahams, Trade Unions & Law (Cassekk & Company Ltd, London 1968).
• Robin Allen QC, Anna Beale and Rachel Crasnow Employment Law & Human Rights (2 nd ed, OUP 2007).
• Catherine Barnard, EC Employment Law (3 rd Edition, OUP, New York 2006).
• Lammy Betten, International Labour Law, Selected Issues (Kluwer Law and Taxation Publishers, The Netherlands 1993).
• Paul Davies and Mark Freedland, Labour Legislation and Public Policy (Clarendon Press Oxford, 1993).
• Simon Deakin & Gillian S Morris, Labour Law (5 th edn OUP, Portland 2009).
• KD Ewing, The Right to Strike (Clarendon Press – Oxford, New York 1991).
• KD Ewing, C.A. Gearty and B.A. Hepple, Human Rights and Labour Law, Essays for Paul O’Higgins (Mansell Publishing Limited, New York 1994).
• KD Ewing, The Right to Strike: From The Trade Disputes Act 1906 To A Trade Union Freedom Bill 2006 (Institute of Employment Rights, Liverpool 2006).
• A. Flanders and H. Clegg, The System of Industrial Relations in Great Britain (Oxford, 1954).
• Otto Kahn-Freund and Bob Hepple, Laws Against Strikes: International Comparisons in Social Policy (The Fabian Society, London 1972).
• Sheldon Leader, Freedom of Association, A Study in Labour Law and Political Theory (New Haven, Conn./London: Yale University Press, 1992).
• Tonia Novitz, International and European Protection of the Right to Strike (OUP, New York, 2003).
• Ian Smith and Gareth Thomas, Smith & Wood’s Employment Law (9th edn OUP, London 2007).
• E.W.J. Thomson and S.R. Engleman, The Industrial Relations Act (Martin Robertson, London 1975).
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ARTICLES
• Katherine Apps, ‘Damage claims against trade unions after Viking and Laval’ (2009) 34(1) E.L. Rev. 141;
• Catherine Barnard, “Social Dumping or Dumping Socialism” (2008) 67 C.L.J. 262;
• A.C.L. Davies, ‘The Right to Strike Versus Freedom of establishment in EC Law: The Battles Commences’ (2006) 35 ILJ 75;
• A.C.L. Davies, “One Step Forward, Two Steps Back?” (2008) 37(2) I.L.J. 126.
• Ronnie Eklund, ‘The Laval Case – Swedish Labour Court Decision No. 49’ (2006) 35 ILJ 2002.
• KD Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 ILJ 275.
• K.D. Ewing, John Hendy QC, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 ILJ 2
• Caroline Carter, Jonathan Ions, ‘Staff Wars: Can Employers Strike Back?’ [2002] ELN 139;
• Ruth Dukes, ‘the right to strike under UK law: not much more than a slogan?’ (2010) 39 ILJ 82.
• Bob Hepple, ’25 years of the European Social Charter’ (1989) 10 Comparative Labour Law Journal 460.
• Saleem Sheikh, ‘International – The Draft Social Charter: furthering social rights’ (1989) 14 LS Gaz, 86
• Bob Simpson, ‘Recent Legislation – Code of Practice on industrial Action Ballots and Notice to Employers 2000’ (2001) 30 ILJ 194.
• Bob Simpson, ‘Trade Disputes and Industrial Action Ballots in the Twenty-First Century’ (2002) 31 ILJ 270.
• Bob Simpson, ‘Recent Legislation – Strike Ballots and the Law: Round Six – Code of Practice on industrial Action Ballots and Notice to Employers 2005’ (2005) 34 ILJ 331.
• Arabella Stewart & Mark Bell, ‘The Right to Strike: A Comparative Perspective. A Study of National Law In Six EU States’ the website of the Institute of employment rights
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STATUTES
Trade Union and Labour Relations (Consolidation) Act 1992
• s 218 13, 24 • s 226A 13 • s 226A(1)(b) 13 • s 227 13 • s 228 14 • 228 A 14 • s 229 13 • s 230 13 • s 231 14 • 231 A 14 • s 233 14 • s234 14 • s 234A 14
EUROPE COMMUNITY INSTRUMENTS
• Treaty establishing the European Economic Community of 25 March 1957 5 Article 43 21 Article 49 21
• Consolidated version of the Treaty on the Functioning of the European Union 5
• European Convention on Human Rights of 4 November 1950 16
• European Social Charter of 18 October 1961 18
• Community Charter of the Fundamental Social Rights of Workers 18
• Charter of Fundamental Rights of the European Union 2000 19
• Protocol No 7 on The Application of the Charter of Fundamental Rights To Poland and To the United Kingdom 20
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INTERNATIONAL INSTRUMENTS
• C87 Freedom of Association and Protection of the Right to Organise Convention of 9 July 1948 16
• The Abolition of Forced Labour Convention of 25 June 1957 17
CASES
• Albany International BV v Stichting Bedrijfspensioenfonds Texielindustrie : C-67/96 [1999] ECR I-5751, ECJ 25
• British Airways plc v Unite the Union [2010] All ER (D) 189 (May), CA 33
• Demir and another (applicants) v. Turkey (respondent) [2009] IRLR 766, ECtHR 27
• EDF Energy Powerlink Ltd v National Union of Rail, Maritime and Transport Workers [2010] IRLR 114, QBD 33
• Enerji Yapi-Yol Sen v Turkey Application No 68959/01, judgment dated 21 April 2009, ECtHR 27
• Federation of Offshore Workers' Trade Unions (OFS) v Norway (2002) ECHR 2002-VI, 301, ECtHR 26
• ITWF v Viking Line ABP [2008] IRLR 143, ECJ 18
• JT Stratford & Co Ltd v Lindley [1965] AC 269, HL 11
• Laval un Partneri Ltd v Svenska Bygggnadarbetareforbundet [2008] IRLR 160, ECJ 21
• Metrobus v Unite the Union [2009] IRLR 851, CA 31
• National Union of Belgian Police v Belgium , 27 October 1975, Eur. Ct HR Rep., Series A, No. 19 (1975) 15
• NS HR 30 May 1986, NJ 1986, 688 4
• Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutches Rotes Kreuz [2004] ECR I-000, ECtHR 19
• Quinn v Leathem [1901] AC 495, HL 9
• R v Bunn (1872) 12 Cox CC 316 8
• Rookes v Barnard [1964] AC 1129,HL 11
• Schmidt and Dahlström v Sweden (1976) 1 EHRR 632, ECtHR 26
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• Taff Vale Rly Co v Amalgamated Society of Railway Servants [1901] AC 426, HL 9
• Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, [1969] 1 All ER 522, CA 11
• UNISON v UK case [2002] IRLR 497, ECtHR 26
• Viking Line ABP v International Transport Workers’ Federation [2006] IRLR 58, CA 21
• Viking Line Abp v International Transport Workers' Federation and another - [2005] All ER (D) 155 (Jun), QBD 22
• Wilson and Palmer v The United Kingdom , Applications nos. 30668/96, 30671/96 and 30678/96, judgment of 2 July 2002, ECtHR 26
NEWSPAPER ARTICLE
• Interview with Lord Hope, Deputy President of the UK Supreme Court (Law Society Gazette, 5 August 2010).
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