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The UK's Right to Strike and the Potential Impacts of the European 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”. 1 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 2 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 As regards the UK, the Conspiracy and Protection of Property Act 1975 repealed the Master and Serviant legislation. 3 Nevertheless, the UK has never affirmed a positive right to strike.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 7 collective agreements previously’. 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.
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