May 12, 2014
According to the Strasbourg Court’s established case law, the right to strike action is protected by Article 11 ECHR (e.g. Enerji Yapi-Yol Sen v. Turkey), which more generally protects the right of trade unions to strive for the protection of their members’ interests (e.g. Demir and Baykara v. Turkey). In the recent case of R.M.T. v. UK, the Court for the first time had to rule on a case concerning so-called secondary strike action, i.e. a strike organized by trade union members in one company in support of a strike initiated in another company. The United Kingdom is one of the few Council of Europe member states – together with Austria, Luxembourg and the Netherlands – in which a total prohibition on secondary strike action is in place. In its judgment of 8 April, the Court nonetheless did not consider such a blanket ban to be contrary to Article 11.
The trade union’s complaint stems from the rail maintenance sector: in 2007, twenty employees from the Jarvis company – all members of the R.M.T. union – were transferred to a smaller company, Hydrex. Their existing terms and conditions were preserved by Hydrex, as required by the law. Two years later, this group of workers went on strike because Hydrex indicated that it would reduce their terms and conditions to the level of its other employees (resulting in a salary reduction of 36-40 %). According to the trade union, this strike was ineffective because so few workers took part. While organizing a ‘sympathy strike’ at the bigger Jarvis company would have been more effective in increasing pressure on Hydrex, the union was unable to do so because of the legal prohibition of secondary strike action.
The Court’s judgment
Taking into account the fact that secondary strike action is recognized and protected under ILO Convention No. 87 and the European Social Charter, the Court first of all recognizes that
“the taking of secondary industrial action by a trade union, including strike action, against one employer in order to further a dispute in which the union’s members are engaged with another employer must be regarded as part of trade union activity covered by Article 11.”
While the Court thereby explicitly recognizes that secondary strike action comes within the scope of Article 11, the question remains whether the interference caused by the blanket statutory ban could be justified as being ‘necessary in a democratic society’, i.e. whether it corresponds to a ‘pressing social need’, whether the reasons given to justify the interference are ‘relevant and sufficient’ and whether it is proportionate to the legitimate aim pursued.
Based upon the following reasons, the Court considers that the ‘necessary in a democratic society’ test is satisfied:
1) The state should be granted a wide margin of appreciation for three reasons. Firstly, achieving a proper balance between the interests of labour and management involves sensitive social and political issues and there is a high degree of divergence between the domestic systems in this respect (§ 86). Secondly, the fact that the national authorities, and in particular the democratically elected parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and what are the legislative measures best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy (§ 89). And thirdly, contrary to ‘primary’ or direct industrial action, the Court considers secondary strike action to be a secondary or accessory aspect of trade union activity and therefore the margin of appreciation to regulate this kind of action is wider (§ 87-88).
2) The fact that the UK stands at the most restrictive end of the comparative spectrum does not in itself mean that it has stepped outside its legitimate margin of appreciation in regulating this aspect of trade union activity (§ 91).
3) While the relevant international law documents – in particular the opinions by the ILO Committee of Experts and the European Committee of Social Rights – indicate that the UK’s approach is out of line with a discernible international trend calling for a less restrictive approach, this is not in itself decisive. The reason for this, according to the Court, is the distinct character of the Court’s review compared with that of those supervisory bodies. While these bodies can analyse the ban on secondary strike action in more general terms, “it is not the Court’s task to review the relevant domestic law in the abstract, but to determine whether the manner in which it actually affected the applicant infringed the latter’s rights under Article 11 of the Convention.” The Court therefore sticks to the facts of the case, rather than exploring the possible effect of the ban in various hypothetical scenarios (§ 98).
4) The Court attaches particular importance to the ‘direct democratic legitimation’ that the legislature enjoys, which is particularly relevant in this case, since “[t]he ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time.” This indicates a “democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom.” (§ 99)
5) Finally, following a line of reasoning from the Animal Defenders judgment, the Court observes “that the general character of a law justifying an interference is not inherently offensive to the principle of proportionality.” (§ 101) According to the Court, the question therefore is “not whether less restrictive rules should have been adopted or whether the State can establish that, without the prohibition, the legitimate aim would not be achieved. It is rather whether, in adopting the general measure it did, the legislature acted within the margin of appreciation afforded to it.” (§ 103) Since the Court is not persuaded that the UK Parliament lack sufficient policy and factual reasons to consider the blanket ban to be ‘necessary in a democratic society’, it finds that the state authorities have acted within their (wide) margin of appreciation.
On closer examination, most if not all of these arguments are flawed. The most ridiculous argument is the fourth one: there is no reason why the fact that a state of the law supported by a broad democratic consensus over a long period of time would be less prone to violate human rights, sodomy laws being a notorious example. The discussion of the consensus at the domestic and international level again highlights the total absence of a methodology in the Court’s use of the consensus argument: it’s not clear why an internationally isolated position can be decisive in the one case but not in the other, nor is it clear why the Court does not take this isolated position in account when deciding on the width of the margin of appreciation. Besides these obvious shortcomings in the judgments, three issues require some deeper discussion: 1) the problems with the Animal Defenders line of reasoning, 2) the narrow scope of the Court’s examination by sticking to the facts, and 3) the problematic distinction between the so-called core and secondary/accessory aspects of trade union freedom.
Firstly, the Animal Defenders line of reasoning is problematic and inconsistent with the Court’s own case law. In case of Nada v. Switzerland of 2012, the Court in general terms endorsed that the examination of less restrictive means is an essential element of proportionality analysis under the ECHR. According to the Court in Nada, “for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measurethat would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out.” (§ 183) Nowhere in the Animal Defenders nor in the R.M.T. judgment does the Court convincingly explain why this principle is relevant in the one case (e.g. Nada, Mouvement Raëlien Suisse v. Switzerland, Glor v. Switzerland and Abdulayeva v. Russia) but not in the other (e.g. Animal Defenders and R.M.T.). Indeed, it is hard to see why the rationale for the Nada test – i.e. “the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation” (§ 182) – would not apply in the case at hand.
It however seems possible to read R.M.T. in a way that is more in line with the Nada judgment. Reacting to the applicant’s and third party’s argument that the blanket ban could have far-reaching consequences in certain hypothetical scenarios – such as when employers deliberately adopt complex corporate structures in order to weaken the position of the trade unions – the Court held that “[t]hese alleged, far-reaching negative effects of the statutory ban do not however arise in the situation at Hydrex.” (§ 98) In other words, when the circumstances are different (cf. “the realities of each case”), it may be possible to find that the application of the blanket ban in a particular case does violate Article 11. This also seems to be the opinion of concurring judges Ziemele, Hirvelä and Bianku: “if the very essence of the applicant’s right to strike were affected, there would be no doubt as to what the Court’s decision would be.” It’s hard to understand why the Court puts so much energy in endorsing the justification for the blanket character of the ban on secondary strike action on the one hand while on the other hand suggesting that mechanically applying this ban could nonetheless strike at the very essence of Article 11 in certain cases. So the ban cannot be ‘genuinely’ blanket after all?
Secondly, I cannot help thinking of the eloquent dissenting opinion of Judges Sajó, Vučinić and Kūris in the case of Biao v. Denmark: “Having stated that ‘it is not the Court’s task to review the [national] legislation in the abstract’ and that the Court ‘must confine itself, as far as possible, to examining the issues raised by the case before it’ (…), the majority have ‘confined’ themselves far too much.” Where the interference with a human right directly results from the mechanical application of domestic law – contrary to a situation in which the interference stems from the exercise of discretion by a decision-maker in applying domestic law – one simply cannot avoid to also look at the law in the abstract. In this respect, it is noteworthy that the Court does not explicitly disagree with the findings of the ILO Committee of Experts and the European Committee of Social Rights that the blanket ban is incompatible with trade union freedom, but merely distinguishes its function from the functions of these latter bodies. Thereby the Court avoids its responsibility to properly interpret Article 11 ECHR – or, as one could say, its responsibility to not only provide individual but also constitutional justice. As a result, the burden to proof that the application of the blanket ban in a particular case strikes at the very essence of Article 11 is placed on the trade unions involved, necessarily requiring further litigation in the future, which is hard to square with the principle of legal certainty.
Thirdly, the assertion that secondary strike action is a secondary or accessory rather than a core element of Article 11 is problematic. It is doubtful whether talking about human rights in terms of secondary or accessory vs. core elements is generally helpful, since it rather appears to blur the discussion than genuinely contribute to it. This is particularly the case when one merely tries to strengthen an argument based on this criterion, without actually giving proper justification as to why a certain sub-freedom or sub-right is secondary/accessory rather than a core element or the other way around. This is exactly what the Court did in this case: holding that the margin of appreciation is wide because secondary strike action is considered to be secondary/accessory, while not providing any justification for this latter premise. By creating such a hierarchy within the freedom of association, the Court is actually imposing its opinion of what the ‘proper’ task of trade unions should be: confining itself as much as possible to defending the interests of its individual members in individual companies.
As argued by the applicant, this discounts the broader societal role trade unions must play in a pluralist society:
“In the many cases it had decided involving strikes, the Court had never attached any significance to what was at stake for the workers in the dispute. It was entirely legitimate for unions to pursue broader, common objectives. Trade unionism was fundamentally about solidarity among union members and among workers more generally, and the wording of Article 11 of the Convention should be construed in keeping with this.”
The most striking denial of this broader societal role is found in Judge Wojtyczek’s concurring opinion, in which he not only denies that secondary strike action falls within the scope of Article 11, but also is suspicious of or even hostile towards the right to strike in general, holding that this right is “not uncontroversial” and stressing that “[i]t is important to bear in mind in this context that the right to strike may encroach on the human rights of other persons and have an impact on the national economy.” This is particularly striking taking into account the fact that Judge Wojtyczek comes from Poland, a country where freedom against the communist regime was won exactly because trade unions assumed this broader societal role, rather than limiting themselves to ‘primary’ industrial action.
Finally, by making this categorical distinction between core and secondary/accessory aspects, confining secondary strike action to the latter category, the Court fails to take into account the context of the case. This context is aptly described in the third party intervention of Liberty:
“The traditional set-up in which all the members of the same workforce had the same employer no longer corresponded to the reality of a large and growing category of workers. It had been estimated that over 3 million jobs were now outsourced in the British economy, a great many of these from the public sector, where union density had traditionally been highest. This fragmentation of the traditional labour market had implications for labour law generally, and made it increasingly difficult for trade unions to continue to defend the interests of their members, who were increasingly dispersed among different economic operators. In this context, the effect of the ban on secondary strikes was to greatly reduce the value of trade union membership, as it prevented the union from mobilising broadly in solidarity with and so as to protect the interests of members in dispute with their direct employer. The ban made it easy for companies to undercut the influence of trade unions by re‑configuring their organisations.”
In a similar vein, the applicant argued that:
“In the modern economy, the workforce was becoming increasingly fragmented through the transfer of undertakings or part of them, the creation of complex corporate structures, agency work, privatisation, the contracting-out of services leading to further sub-contracting, non-genuine self-employment and so forth. This led to a situation in which persons performing the same job at the same place of work could have different employers, meaning that they could not legally support one another in time of industrial conflict.”
Due to the fragmentation of present-day economies, more than ever a blanket ban on secondary strike action should be considered as affecting the essence of trade union freedom. By refusing to take into account this reality, the Court has sadly failed to live up to its aspiration to interpret Convention rights in line with present-day conditions.