Civil servants formed a trade union which entered into collective negotiation with a local authority resulting in an agreement. Union members then sued the authority for failing to fulfil the agreement. The local Court found in favour of the members. The Court of Cassation first quashed the ruling, on the basis that, even though there was no legal bar preventing civil servants from forming unions, they were not, as the law stood, authorised to enter into collective agreements. The District Court then confirmed its earlier judgment on the basis that, despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements, this omission had to be remedied in the light of international treaties such as the relevant Convention of the International Labour Organisation, which had already been ratified by Turkey. The Court of Cassation again quashed the judgment of the District Court. It ruled that, at the time the union was formed, the applicable law did not permit civil servants to form trade unions. The union could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted. The Court of Cassation concluded that the union did not have legal personality or the capacity to enter into a collective agreement. As one consequence of the ruling, following an audit of the local authority’s accounts by the Audit Court, the members of the union were required to reimburse the additional income they had purportedly received as a result of the defunct collective agreement.
Held: (Grand Chamber) The Court reviewed the development of its interpretation of the requirements of article 11: ‘The development of the Court’s case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom v. Sweden, 6 February 1976, ss 36, Series A no. 21).
As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom, cited above, ss 36).
As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers’ Union). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlstrom).
Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members’ interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson, National Union of Journalists and Others).
As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade-union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law.
From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tum Haber Sen and Cinar, cited above), the prohibition of closed-shop agreements (see, for example, Srensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson, National Union of Journalists and Others).
This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ss 100, ECHR 2003-II; and Selmouni v. France [GC], no. 25803/94, ss 101, ECHR 1999-V).’
Citations:
34503/97, [2008] ECHR 1345, (2009) 48 EHRR 54, [2009] IRLR 766
Links:
Statutes:
European Convention on Human Rights
Cited by:
Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Judgment – Demir And Baykara v Turkey ECHR 13-Dec-2011
Supervision of execution of final judgment . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Employment
Updated: 19 July 2022; Ref: scu.278149
