The right to collective action (including strike) from the perspective of the European Social Charter of the Council of Europe

Abstract

Introduction

Although the initial version of the Council of Europe’s European Social Charter dates back to 1961,¹ this European fundamental social rights instrument remains to some extent in the shadow of the better known European Convention of Human Rights (ECHR). Opinions on the added value of the Charter differ amongst scholars with some describing it as a ‘sleeping beauty’² compared to the ECHR, whereas others consider the Charter to be ‘the North star for our social policies.’³ In any event the Charter contains an explicit reference to and recognition of the right to collective action including the right to strike, unlike the relevant fundamental ILO conventions.⁴

Article 6§4 provides that:

‘With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:

(…)

and recognise:

4) 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 Charter is one of the most widely ratified fundamental social rights instruments in Europe. As of March 2016, 43 of the Council of Europe Member States have ratified the Charter of which 34 are bound by the 1996 Charter and nine by the 1961 Charter. The four states which have not yet ratified are: Liechtenstein, Monaco, San Marino and Switzerland. As for Article 6§4 in particular, all EU/EEA Member States and EU candidate countries with the exception of Austria, Luxembourg, Poland and Turkey have ratified Article 6§4.⁵ Over the years, the European Committee of Social Rights (ECSR),⁶ the main supervisory body to the Charter, has established a comprehensive case-law in relation to the Charter in general and Article 6§4 in particular.⁷

In 2014, the ECSR examined reports submitted by the state parties on the articles of the Charter relating to the so-called thematic group ‘3. Labour rights’ which included Article 6§4.⁸ The reports covered the reference period 1 January 2009 to 31 December 2012, i.e. largely coinciding with the first and most severe years of the economic (and social) crisis in Europe. In December 2014 the ECSR adopted 725 conclusions in respect of 41 states.⁹ Of these 725 conclusions, 252 were ‘conclusions of non-conformity’ (i.e. violations of the Charter).

Naming and shaming

The following countries were found to be in violation of Article 6§4: Belgium, Bulgaria, Cyprus, France, Hungary, Ireland, Italy, Norway, Portugal, Romania, Serbia, Slovak Republic, Sweden (for the 1996 Charter) and Czech Republic, Denmark, Germany, Iceland, Spain and UK (for the 1961 Charter). The violations relate to 1) the groups (of workers) entitled to call a collective action, 2) the permitted objectives to conduct a collective action, 3) specific restrictions on the right to strike (e.g. in relation to essential services or specific groups of workers) and 4) certain procedural requirements (such as notice periods before calling the strike or ballots to be held). The next section provides an overview of these different categories of violations. The focus is thus on violations found in EU/EEA Member States and EU candidate countries.

Groups entitled to call a collective action

According to the ECSR case-law, the right to call a strike may be limited to trade unions provided that forming a union is not subject to excessive formalities. On the contrary, limiting the right to call a strike to the representative or the most representative trade unions is not in conformity with Article 6§4. Once a strike has been called, any employee concerned, irrespective of whether he/she is a member of the trade union having called the strike, has the right to participate in the strike.

As regards the entitlement to call a strike, France was again found to be in breach of the Charter as only representative trade unions have the right to call strikes in the public sector. The same applied to Hungary, where in the civil service a strike can only be called by a trade union that is party to an agreement concluded between the government and the trade unions in 1994.

The ECSR considers that in Germany the requirements to be met by a group of workers in order to form a union satisfying the conditions for calling a strike constitute an excessive restriction to the right to strike.

Portugal was found to be in breach because workers who are not affiliated to an existing trade union where the majority of the workers in the enterprise are affiliated, can only exercise the right to strike if they establish a union for that purpose. However, it could take up to 30 days to establish a trade union which the ECSR considers an excessive period.

Denmark was again found to be in breach because workers who are not members of a union that has called a strike are prevented from participating in the strike unless they join the relevant union.

Permitted objectives of collective action

As for permitted objectives of collective action, and according to the ECSR case-law, Article 6§4 applies to conflicts of interests. It does not concern conflicts of rights, i.e. related to the existence, validity or interpretation of a collective agreement or to the violation of a collective agreement. Within those limits, the right to strike should be guaranteed in the context of any negotiation between employers and employees in order to settle an industrial dispute. Consequently, prohibiting strikes not aimed at concluding a collective agreement is not in conformity with Article 6§4.

In its Conclusions 2014, the ECSR changed its longstanding position of non-conformity for Germany as regards the prohibition of strikes not aimed at achieving a collective agreement. It considered that the specific German approach of leaving conflicts of rights to be determined by courts while requiring that collective action must be directed towards resolving conflicts of interest is thus in principle in conformity with Article 6§4, as long as excessive constraints are not imposed upon the right of workers to engage in collective action in respect of conflicts of interest.

The ECSR also repeated its conclusion of non-conformity (since 2004) for the UK in relation to the prohibition of secondary action. The main reasoning of the ECSR was based on the currently existing ‘more diverse and complex matrix of contractual relationships with workers’ (e.g. use of temporary agency staff or new networking/partnership relations amongst employers) whereby ‘trade unions increasingly find themselves representing a workforce whose terms and conditions are to a large extent not determined by their direct employer.’

Specific restrictions to the right to strike

Under the Charter’s case-law, the right to strike may be restricted provided that any restriction is prescribed by law, serves a legitimate purpose and is necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals. Over time the ECSR has expressed itself on restrictions imposed in relation to the right to strike i) in essential services/sectors, ii) of certain public officials, and interventions of iii) parliaments and governments to end a strike action, and iv) courts.

Restrictions related to essential services/sectors

For the ECSR, although prohibiting strikes in sectors which are essential to the community could serve a legitimate purpose, simply banning strikes even in essential sectors – particularly when they are extensively defined like the ‘energy’ or ‘health’ sector – is not deemed proportionate. At most, the introduction of a minimum service requirement in these sectors might be considered in conformity with Article 6§4.

Therefore, Bulgaria is not in conformity, first because existing restrictions on the right to strike in the railway sector still go against the restrictions allowed by the Charter and secondly because civil servants are still only permitted to engage in symbolic actions and are thus forbidden to strike.¹⁰

For Serbia the ECSR found a breach because in the case of strikes involving activities ‘in the general interest’, employers have the power unilaterally to determine the minimum services required after having consulted the trade union, and workers are thus not involved in these procedures on the same footing as employers. The ECSR also found problematic the fact that if minimum services are not determined within the five-day period before a strike it is then up to the competent public or local authority to take the necessary decisions.

As the Collective Bargaining Act of the Slovak Republic still provides for a prohibition to strike for judges, prosecutors, members of the armed forces, fire-fighters and air traffic controllers as well as for certain workers employed in the social, health, telecommunication and nuclear sectors and the fact that there is no provision for the introduction of a minimum service, the ECSR repeated its longstanding conclusion of non-conformity.

As for Sweden, and following a collective complaint by the Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) (Collective Complaint 85/2012), the ECSR considered that the statutory framework on posted workers (the so-called Lex Laval) still constitutes a restriction on the free enjoyment of the right of unions to engage in collective action.

Restrictions related to public officials

According to the ECSR case-law, public officials also enjoy the right to strike and thus simply prohibiting all public officials from exercising that right is not in conformity with Article 6§4. Public officials must be entitled to withdraw their labour and allowing them only to declare symbolic strikes is not sufficient. However, the right to strike of certain categories of public officials may be restricted but this should be limited to public officials whose duties and functions, given their nature or level of responsibility, are directly related to national security, general interest, etc.

Bulgaria was found in breach as a general ban on the right to strike for all personnel employed by the Ministry of Defence or any establishment responsible to that Ministry still applies. As for Denmark, the ECSR confirmed an existing violation as civil servants employed under the Civil Servants Acts are still denied the right to strike. Hungary was still found to be in breach as the judiciary, the armed forces, the police, the national security services and the official staff of the National Tax and Customs Office do not have the right to strike and it is also unclear which criteria are used to define the civil servants denied this right. In Ireland there is still the absolute prohibition of the right to strike of police officers.

Interference by parliaments or governments to end a strike

It is only under certain conditions that ECSR case-law allows intervention by parliaments or governments to end a strike.

Iceland and Norway were found to be in breach because of government interventions to terminate the collective action respectively in a strike of 2010 at the Icelandair airline and a conflict in the Norwegian oil sector in 2012.

In Spain, the government can still impose arbitration to end a strike in exceptional circumstances (e.g. when there is a threat to the rights and freedoms of others because a strike has gone on for too long, or too much damage is being done to the national economy). Although, following a Supreme Court judgment of 1988, this exceptional discretionary power was limited, the ECSR still considers the scope of situations where the government can use this power as too broad and thus not in conformity with the Charter.

In Italy, the power of the government to issue injunctions or orders restricting strikes in essential public services is, according to the ECSR, still too large.

Court interventions

Already in 2011, the ECSR decided, following Collective Complaint 59/2009, by the ETUC and its three Belgian affiliates (CGSLB, CSC and FGTB), that Belgium was in breach of the Charter because of the so-called ‘unilateral application procedure’ whereby employers may ask the courts to order the end of picketing activity. The ECSR found that the exclusion of the unions from the emergency relief procedure could lead to a situation where the intervention of the courts ran the risk of producing unfair or arbitrary results and that, consequently, such restrictions to the right to strike could not be considered to be prescribed by law. In its Conclusions 2014, the ECSR considered that Belgium had not yet taken sufficient measures to remedy the situation and confirmed the situation of non-conformity.

Procedural requirements

The ECSR allows only under certain conditions and in certain circumstances that procedural requirements (such as subjecting the exercise of the right to strike to prior approval by a certain percentage of workers, the requirement to exhaust conciliation/mediation procedures before going on strike or mandatory periods of notice or cooling-off periods) are prescribed to regulate a collective action or strike. Subjecting the exercise of the right to strike to prior approval by a certain percentage of workers is allowed, provided that the ballot method, the quorum and the majority required are not such that the exercise of the right to strike is excessively limited.

Cyprus was found to be in breach as the Trade Union Laws still require that a decision to call a strike be endorsed by the executive committee of a trade union. Although draft laws to amend the situation were submitted in 2009, the Government withdrew all pending draft legislation again in 2013.

As for the Czech Republic, the ECSR considers the fact that the right to call a strike in disputes regarding the conclusion of collective agreements is subject to a majority requirement of two-thirds of the votes cast and a quorum of 50 per cent of the employees concerned by the agreement as too high. Furthermore, the requirement that strikes cannot start before mediation attempts are deemed to have failed and that a period of 30 days must be allowed to the mediator to try to solve the dispute was considered excessive.

In Hungary, the ECSR found a violation in the fact that strikes must be approved by a majority of the civil servants concerned and considers this threshold too high.

Since 2002, the ECSR has considered that the situation in Romania is not in conformity because, despite the adoption of a new Law on Social Dialogue (Law 62/2011) which regulates collective actions, the legislation still provides that the right to call a strike belongs only to the representative unions involved in the conflict and it requires the written approval of at least half of the respective unions’ members.

According to the ECSR case-law, the requirement to exhaust conciliation/mediation procedures before going on strike is in conformity with Article 6§4 as long as such machinery is not so slow that the deterrent effect of a strike is affected. Therefore, the ECSR found Portugal to be in breach because the determination of minimum services is subject to administrative or judicial review and if an agreement is not reached in the three days following the prior notice of a strike, the minimum services and the means needed to ensure them must be defined by a duly substantiated joint order of the responsible ministers, or, in the case of a state-owned company, by an arbitration tribunal formed in accordance with a specific law governing compulsory arbitration. Furthermore, the arbitration decision and the joint order can be challenged in court. In particular, the ECSR considers the procedures in relation to state-owned companies to be excessive.

Finally, the ECSR case-law allows periods of notice or cooling-off periods to be prescribed in connection with pre-strike conciliation procedures but only as long as they are of a reasonable duration. As for Bulgaria, the ECSR found a particular violation in the fact that it is not possible to give notice for a strike of unlimited duration and that a strike can be considered unlawful if it exceeds the duration that was originally notified to the employer. In Italy, Act 83/2000 provides for an obligation to notify to the employer the exact duration, the modalities and the reasons for a strike in essential public services. The ECSR has considered since 2000 the requirement to notify the exact duration of strikes to be an excessive restriction to the right to strike. As for the UK, the ECSR confirms its conclusion of non-conformity of 2010 that the requirement to give notice to an employer of a ballot on industrial action is excessive, since in any case unions must issue an additional strike notice before taking action.

Consequences of a strike

Following the ECSR case-law, a strike should not be considered a breach by the striking employees of their employment contract and should be accompanied by a prohibition of dismissal. If however, in practice, strikers are fully reinstated when the strike has ended and their previously acquired entitlements (e.g. concerning pensions, holidays and seniority) are not affected, then formal termination of the employment contract does not violate Article 6§4. Also, any deduction from strikers’ wages should not exceed the proportion of their wage that would be attributable to the duration of their strike participation.

In this respect, Ireland has been in breach of the Charter since 2004 because first, only authorized trade unions, which are unions holding a negotiation licence, their officials and members are granted immunity from civil liability in the event of a strike, and, secondly, under the Unfair Dismissals Act, an employer may dismiss all employees for taking part in a strike.

In the UK, workers participating in lawful industrial action are protected against dismissal for 12 weeks. Already in 2010, the ECSR held that the period of 12 weeks was arbitrary and reiterated its conclusion of non-conformity. Furthermore, it considers that making the return to work of workers who participated in a lawful strike conditional on time limits and the employer’s consent also constitutes an obstacle to the effective exercise of the right to collective action.

What does the future hold?

Under the Charter, the ECSR has the exclusive competence to asses from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter. Within the reporting procedure however, and following the adoption of the ECSR conclusions, summary reports on the conclusions are forwarded to the so-called Governmental Committee which will assess the conclusions ‘on the basis of social, economic and other policy considerations’ and decide whether or not it will recommend to the Committee of Minsters of the Council of Europe to issue the only official sanction (in the form of a so-called individual ‘Recommendation’) to the countries that are in violation of the Charter. The Governmental Committee is composed of a representative of each Contracting Party to the Charter (mainly civil servants from relevant governmental departments nominated by their governments) as well as representatives of the employers’ side (International Employers’ Organisation and BUSINESSEUROPE) and the trade union side (ETUC). However, these employers’ and trade union representatives are only observers, having full speaking rights but no right to vote.

If it had followed previous practice, the Governmental Committee would have made that assessment based on ‘social, economic and other policy considerations’ during its meetings in the course of 2015. However, due to changes in the working methods of both the ECSR and the Governmental Committee, the ECSR decided that none of the cases on Article 6§4 were to be discussed at those meetings.¹¹ Notwithstanding strong criticism from the ETUC, the ECSR did not find it possible to reverse the decision.¹²

Consequently, none of the cases on non-conformity in relation to Article 6§4 were discussed at the Governmental Committee and all concerned states will now have to report on them in their next report on Article 6§4 due by October 2017. Following this the ECSR will make a new legal assessment by January 2018 and the cases on Article 6§4 can then be discussed by the Governmental Committee.

In any case, as the Charter is the oldest fundamental social rights instrument within the European (and international) framework that explicitly recognize(s)(d) the right to collective action/strike, the last supervisory cycle can thus be considered as a significant missed opportunity fully to scrutinize the identified violations of the right to strike in Europe, in particular in times of crisis. Such a review seems more than warranted in particular given the manifold changes to the right to strike that have in the meantime occurred or are being planned in several Member States (e.g. UK and Finland) and on which – in principle – governments will have to report.

Stefan Clauwaert ETUI Senior Research Officer and representative of the ETUC in the Governmental Committee to the European Social Charter and the European Code of Social Security of the Council of Europe.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.