ECHR upholds right to collective bargaining and to strike

Demir and Baykara Case.

This an important development and has been sent through to us by a number of Workers Uniting Group Supporters who asked for it to be circulated. The reports is from the respected Sonia McKay of the Working Lives Research Institute.

"The European Court of Human Rights made two recent judgements in the cases of Demir and Baykara v. Turkey and Enerji Yapi-Yol Sen v. Turkey.

The cases declare that Article 11 of the European Convention on Human Rights includes a right to collectively bargain and precludes a blanket ban on a right to strike.

Court upholds right to collective bargaining

Two recent rulings by the European Court of Human Rights (ECHR) state that the exercise of the right to form and join trade unions includes the right to collective bargaining and the right to strike. The judgement in the first case, Demir and Baykara v. Turkey (Application No. 34503/97), was delivered on 12 November 2008. At the time when the Tum Bel Sen trade union was formed – as the union representing civil servants in Turkey – Turkish law did not permit civil service trade unionism, although a collective agreement negotiated between the union and the employer was in operation for two years before it was annulled. Demir and Baykara, representing the trade union and its members, claimed at the ECHR that the right to collectively bargain was contained within Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This article states:

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

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

The ECHR noted the declaration of the right in Article 11(1) and the restrictions under Article 11(2). It held that these had to be strictly construed and that they could not impair the very essence of the right to organise.

Restrictions imposed by the state thus had to be shown to be legitimate and civil servants could not be treated as ‘members of the administration of the state’.

The court went on to rule that the right to collectively bargain with an employer in principle had become one of the essential elements of the right to form and join trade unions, guaranteed under Article 11.

Court finds strike ban too restrictive

The judgement in the second case, Enerji Yapi-Yol Sen v. Turkey (Application No. 68959/01), was delivered on 21 April 2009 and expanded further on the point made in the earlier Demir ruling. The case concerned a state prohibition on public sector trade unions from taking industrial action.

Members of the trade union Enerji Yapi-Yol Sen who ignored the prohibition were disciplined and the union brought the case to the ECHR, alleging that the ban on strikes interfered with their right to form and join trade unions as guaranteed under Article 11. While the court acknowledged that the right to strike was not absolute and could be subject to certain conditions and restrictions, it held that a ban applied to all public servants was too wide a restriction.

The ECHR held that the disciplinary action was ‘capable of discouraging trade union members and others from exercising their legitimate right to take part in such one-day strikes or other actions aimed at defending their members’ interests’ and amounted to a threat to rights guaranteed under Article 11.

The strike ban was not in response to a ‘pressing social need’ and the Turkish government had thus failed to justify the need for the impugned restriction in a democratic society.

Sonia McKay, Working Lives Research Institute