When Tin Laissez Passer Notice European States Ban Secondary Strikes? Comments On The Rmt Judgment

By Niko Tatulashvili

In its judgment delivered on 8 Apr 2014, the European Court of Human Rights had to determine whether the strict requirements of U.K. police line regarding strike activeness was consistent amongst the requirements of Article eleven ECHR, concerning the liberty of association. The application was lodged yesteryear a London based merchandise union, the National Union of Rail, Maritime in addition to Transport Workers (RMT) uniting employees from different sectors of carry manufacture inwards the UK. 

The applicant complained close 2 split cases, 1 concerned amongst the statutory requirement of a strike ballot discovery in addition to the other amongst a consummate ban on secondary strike action.

The origin illustration was declared inadmissible yesteryear the European Court. The judges stated that fifty-fifty though the requirement of the national police line (the Trade Union in addition to Labor Relations (Consolidation) Act 1992) to grip a primary ballot earlier strike activeness (Section 226(1)) in addition to communicate the results to the employer, specifying the categories of the workers concerned (Section 226(A)) caused approximately delays, inwards the destination the merchandise matrimony inwards this specific illustration silent succeeded in addition to managed to improve the working weather condition of the workers concerned.

In the minute illustration the applicant was a representative of a rattling small-scale number of employees inwards a item workplace, so organizing a strike activeness would non receive got whatever disruptive upshot on the operate in addition to eventually would non Pb to whatever results. According to the applicant it could improve protect the interests of its members if it was allowed to organize a secondary strike activeness inwards back upward of the workers concerned. Secondary activeness is expressly excluded from the statutory protection yesteryear Section 224 of the Trade Union in addition to Labor Relations (Consolidation) Act 1992. The Court declared the minute purpose of the illustration admissible.

Major Arguments of the Parties

The union’s primary declaration was that if it could organize a sympathy strike, the working weather condition of the workers concerned would non receive got deteriorated; in addition to that the ban on such activeness seriously limited its powerfulness to protect its members. In back upward of its application, the RMT cited the comments of International Labour Organisation (ILO) supervisory bodies in addition to the European Committee on Social Rights (ECSR), the torso monitoring the application of the Council of Europe Social Charter, condemning the blanket ban on secondary industrial activeness yesteryear the UK.

The 3rd parties (ETUC/TUC, Liberty) submitted their views inwards back upward of the applicant. They emphasized the remove for improve protection of workers’ rights inwards the electrical current province of affairs when it’s slow for employers to undermine matrimony activeness yesteryear complex corporate structures, yesteryear transferring operate or yesteryear hiving off companies. The fragmentation of traditional labour marketplace (when all members of the same workforce had the same employer) makes it hard for merchandise unions to protect the interests of their members. In this hard contend secondary activeness is a necessary tool for merchandise unions.

For its part, the U.K. regime argued that the ban on secondary strikes was a answer to widespread disruptions caused to the British economic scheme yesteryear widespread secondary activeness inwards the 1970s in addition to 1980s. According to the government, a dispute inwards 1 purpose of the economic scheme has a potential to apace tumble over into others, affecting 3rd parties who receive got no stake inwards the conflict in addition to no way to resolve it.

The judgment of the Court

For the origin fourth dimension inwards its jurisprudence the Court recognized that the secondary strike activeness is a correct protected nether Article 11(1) ECHR. It also referred to Article 31 (3) (c) of the Vienna Convention on the Law of Treaties in addition to also its ain judgment inwards Demir in addition to Baykara, where it had acknowledged the importance of established international norms inwards the procedure of interpreting Convention rights.

After establishing that secondary strike activeness is protected yesteryear the Convention, the Court went on to determine if the interference amongst the secondary strike pursued 1 of the legitimate aims justifying limitation of the liberty of association, equally enumerated inwards Article 11(2). Here the Court accepted the declaration of the U.K. regime in addition to stated that dissimilar primary activeness secondary activeness has a potential to impinge upon the rights of persons non political party to the industrial dispute, drive broad disruption amongst the economic scheme in addition to touching delivery of services to the public. Therefore, yesteryear enacting the police line banning the secondary strike the U.K. Parliament pursued the legitimate aim of protecting “the rights in addition to freedoms of others” mentioned inwards Article 11(2).

Here the Court offers 1 to a greater extent than novelty, it distinguishes betwixt primary in addition to secondary strikes in addition to states that inwards illustration of primary strikes the term “the rights in addition to liberty of others” refers exclusively to the employer’s interests, piece inwards illustration of secondary strikes the same term is non limited to the employer only, but refers to the broader interests of the public.

Next, the Court assessed whether the interference amongst liberty of association was “necessary inwards a democratic society”. The orbit of margin of appreciation of U.S.A. inwards the introduce illustration was 1 of the of import aspects that the Court had to bargain earlier deciding whether the interference amongst the Convention correct was corresponding to a “pressing social need” in addition to thus was “necessary inwards a democratic society” or not.

The seat of the applicant was that margin of appreciation of the U.K. regime inwards this illustration must endure limited equally it was inwards the illustration of Demir in addition to Baykara. The Court stated that inwards monastic enjoin to determine on margin of appreciation of the province the item facts of the illustration should endure taken into account. In the illustration of Demir in addition to Baykara the interference amongst the liberty of association (dissolution of a merchandise union) was far-reaching, intruding its inner core. According to the Court, when the interference affects the inwardness of the merchandise matrimony activity the margin of appreciation of U.S.A. is narrow. But conversely, the State has a broad margin of appreciation where secondary or accessory aspects of the merchandise matrimony activity are affected.

In this illustration the Court considered that the inwardness elements of the liberty of association (which according to the Court tin endure a primary strike action) were non at stake in addition to thus province has a broad margin of appreciation. In the thought of the Court, where the discipline affair of the illustration is related to the social in addition to economical strategy of the respondent state, the broad margin of appreciation should endure allowed, equally national authorities, in addition to peculiarly a democratically elected Parliament, are inwards a improve seat than an international justice to know what is the populace involvement on social in addition to economical grounds. 

The Court also considered the mutual European practise inwards relation to secondary strikes. According to the Court the U.K. amongst its outright ban on secondary activeness stands at 1 destination of a comparative spectrum, however, it does non hateful that domestic authorities receive got stepped exterior their margin of appreciation.

The Court took banknote of the applicant’s declaration that the ECSR in addition to ILO bodies regularly criticize the U.K. regime for its electrical current ban on secondary strike action. The Court referred over again to the Demir in addition to Baykara case, where it had confirmed that an international consensus emerged from specialized international instruments may constitute a relevant consideration for the Court when it interprets the Convention. However, considering the circumstances of the introduce illustration the Court explained that: “… the negative assessments made yesteryear the relevant monitoring bodies of the ILO in addition to European Social Charter are non of such persuasive weight for determining whether the performance of the statutory ban on secondary strikes inwards circumstances such equally those complained of inwards the introduce illustration remained amongst the arrive at of permissible options opened upward to the national authorities nether Article eleven of the Convention.”

Based on these arguments the Court concluded that the restriction on the correct to secondary strike served a pressing social remove in addition to was necessary inwards a democratic society. Therefore, at that spot was no violation of Article 11(1).

EU Law

The European Union police line aspects of this illustration were non considered yesteryear the Court, fifty-fifty though the applicant referred to the European Union Charter of Fundamental Rights in addition to Freedoms which guarantees a correct to strike inwards illustration of conflict of interests betwixt parties (Article 28). One ground for that mightiness endure the fact that Article 28 appears inwards Title IV of the Charter. According to Protocol thirty to the Treaty on the Functioning of the European Union rights mentioned inwards Chapter IV of the Charter does non create justiciable rights for the UK, unless they are recognized on national degree (Article 1(2)).

However, the European Union police line issues were discussed inwards the Concurring Opinion of Judge Wojtyczek. The justice made a reference to Article 51 of the Charter which describes the land of application thereof. According to the Article provisions of the Charter should endure respected yesteryear European Union Member States exclusively when they are implementing European Union law. The Charter does non create novel powers for the EU, other than established yesteryear the Treaties. The justice continued yesteryear mentioning Article 153(5) TFEU which excludes the correct to strike from the orbit of the powers of the Union.

However, the justice accepted that European Union institutions in addition to namely the Court of Justice of the European Union (CJEU) receive got had to determine on the issues of the correct to strike. In this regard the justice mentioned the famous cases of the European Court of Justice (Viking Line and Laval), inwards which the CJEU justified the restriction of the correct to strike when it collided amongst the primal European Union freedoms of movement. The justice concluded that piece the European Union should non violate the correct to strike equally guaranteed yesteryear the Charter, this musical instrument does non title the European Union to forestall its fellow member states from imposing restrictions on the correct to strike.

Comments

The European Union police line analysis offered yesteryear Judge Wojtyczek was rattling brief in addition to did non shed much lite on the issue. In literally 2 paragraphs the justice tried to explicate that the restrictions on the correct to strike are justified yesteryear European Union police line in addition to that Member States cannot endure prevented from imposing such restrictions. The interesting cry for hither is that nobody disagrees that correct to industrial activeness is non an absolute right. The questions which are of import in addition to which the justice did non advert hither are: (a) what sort of restriction is permissible, in addition to (b) what is the margin of appreciation of states inwards this regard? 

Several other of import aspects were omitted from the analysis of the concurring Judge. Speaking close the orbit of application of the Charter the Judge did non consider the Article 52(3) of the same Charter which provides that, “In so far equally this Charter contains rights which fit to rights guaranteed yesteryear the Convention for the Protection of Human Rights in addition to Fundamental Freedoms, the pregnant in addition to orbit of those rights shall endure the same equally those set downward yesteryear the said Convention.” The of import purpose of the ECHR inwards establishing the standards for the human rights protection inwards the part is reaffirmed yesteryear the recent Draft Agreement on the Accession of the European Union to the ECHR 2013. According to this understanding inwards illustration of incompatibility the European Union should brand its regulations on human rights protection compatible amongst the Convention.

Speaking of the Viking Line illustration the justice did non advert that the CJEU inwards this illustration explicitly recognized the correct to strike “as a primal correct which forms an integral purpose of the full general principles of Community Law”. This guarantees the correct to strike a considerable degree of protection inwards the European Union police line in addition to raises the possibility that inwards a futurity judgment of the CJEU, this correct mightiness prevail over the EU’s primal marketplace freedoms.

As for the primary judgment, several points should endure emphasized. It is of import that for the origin fourth dimension inwards its jurisprudence the ECHR recognized that secondary industrial activeness roughshod inside the orbit of Article 11. This recognition of secondary strike activeness seems logical equally the Court continued the tendency (started inwards 2008 yesteryear the Grand Chamber inwards Demir in addition to Baykara) in addition to shared the practise of the ILO in addition to ECSR, which recognize such a right.

However, when it came to the restrictions upon this right, the Court gave the U.K. regime a broad margin of appreciation. This time, the Court disregarded the seat of the ILO in addition to ECSR in addition to supported a full ban on secondary strikes yesteryear the U.K. government. The rhetorical query hither is: what feel does it brand to recognize the correct in addition to so let the states to set a blanket ban on it?

Also, this selective approach of the Court – accepting approximately aspects of the soft police line instruments in addition to disregarding the others – creates a lack of certainty. It is non clear instantly what purpose soft police line instruments (ILO, European Social Charter) play inwards the interpretation of the Convention.

It is also notable that inwards this judgment, primary strike activeness was explicitly recognized yesteryear the Court equally a inwardness chemical factor of liberty of association. Although the restriction upon the secondary strike activeness was justified because it was non a inwardness but secondary or accessory facial expression of the merchandise matrimony activity, it follows logically that inwards the illustration of primary strike activeness states should taste a rattling narrow margin of appreciation because such activeness is a inwardness chemical factor of liberty of association.

There is also an of import proportionality number facial expression inwards this judgment. I percentage the declaration of the U.K. regime in addition to the Court that secondary strike actions receive got a potential to seriously impairment the economical province of affairs inwards the province in addition to drive disruption inwards the operate of others, non related to the industrial dispute. The declaration that economical in addition to social issues are improve known to the regime than the international justice also makes sense. Furthermore, the Court is mainly concerned amongst civil in addition to political rights. However, I silent recollect that the Court should receive got used a case-by-case approach (which it mentions several times inwards the judgment) inwards relation to secondary strikes, instead of supporting a full ban upon it. It could receive got allowed the U.K. regime to strictly regulate such actions, at the same fourth dimension giving merchandise unions a adventure (at to the lowest degree theoretical) to claim such a correct inwards other cases. Such a determination would receive got been easier to reconcile amongst the soft police line instruments the Court embraced inwards its previous illustration law.

In conclusion, the seat of the Strasbourg Court inwards this illustration reminds me the Viking Line judgment: inwards both cases correct to strike was recognized (in Viking Line – primary strike, inwards RMT – secondary strike) in addition to inwards both cases restrictions upon this correct were justified in addition to the soft police line instruments disregarded. This mightiness endure a pure coincidence which has nix to do amongst the statistics but it is silent noteworthy to advert that when it comes to protection of secondary strikes the ECtHR instantly has to a greater extent than inwards mutual amongst the infamous CJEU rulings than its ain previous illustration law.


Barnard & Peers: chapter 9, chapter 20

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