A Freestanding Right or a Means to an End? The Right to Strike in the ILO and EU Legal Frameworks
| Author | Mimi Zou |
| Position | BA, LLB, BCL, DPhil Candidate, University of Oxford |
| Pages | 101-118 |
© 2012 Mimi Zou and Dublin University Law Society
A FREESTANDING RIGHT OR A MEANS TO AN
END? THE RIGHT TO STRIKE IN THE ILO AND EU
LEGAL FRAMEWORKS
MIMI ZOU*
Introduction
In the constellation of international labour standards, respect for freedom
of association, including the right to form and join unions, enjoys universal
status as a fundamental labour and human right. However, the right to
strike holds a more ambiguous status and the debate over what constitutes
its legitimate exercise gives rise to much controversy. While many
countries in the world have recognised such a right generally, measures
restricting its exercise are relatively frequent and wide-ranging.
The right to strike is notably absent in the text of International
Labour Organisation [hereinafter ILO] Conventions and
Recommendations, but this has given ILO supervisory bodies leeway in
developing more detailed principles on the right to strike, derived as a
freestanding species of the right to freedom of association. The right to
strike has been recognised as an “intrinsic corollary of freedom of
association,”
1
and “a fundamental right of workers and their
organisations.”
2
In contrast, the right to strike is explicitly stated in the
European Union Charter of Fundamental Rights [hereinafter EUCFR].
However, the European Court of Justice [hereinafter ECJ] in Viking
3
and
Laval
4
held that the right of unions to take collective action (with the aim
of preventing social dumping)
5
must be justified as a legitimate exception
* BA, LLB, BCL, DPhil Candidate, University of Oxford.
1
International Labour Organisation, 311th Report of the Committee on Freedom of
Association (ILO, 1998) Case No 1954, at [405].
2
Bernard Gernigon, Alberto Odero and Horacio Guido, “ILO Principles Concerning the Right
to Strike” (1998) 137(4) ,Q¶W/DE5HY441, at 442.
3
Case C-438/05 ,QWHUQDWLRQDO7UDQVSRUW:RUNHUV¶)HGHUDWLRQDQG)LQQLVK6HDPHQ¶V8QLRQY
Viking Line ABP and OÜ Viking Line Eesti [2008] All ER (EC) 127; [2008] IRLR 143;
[2008] 1 CMLR 51 [hereinafter Viking].
4
Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] All ER
(EC) 166; [2008] IRLR 160 [hereinafter Laval].
5
The EU defines social dumping as “a practice involving the export of goods from a country
with weak or poorly enforced labour standards, where the exporter’s costs are artificially
lower than its competitors in countries with higher standards, hence representing an unfair
102 Trinity College Law Review [Vol 15
to employers’ freedoms of establishment and service provision in the
European Union [hereinafter EU].
This article highlights how the divergent interpretation of the right to
strike within the ILO and EU framework is shaped by two competing
characterisations of the right: as an independent right of workers and their
organisations flowing from their freedom to associate, or as merely an
instrument for furthering trade union activities. In doing so, I seek to bring
a new perspective on the ECJ’s judgments in Viking and Laval and present
a potential avenue with which to realign the ILO’s and EU’s jurisprudence
on the right to strike. The first section of this article outlines two
understandings of the right to strike, drawing on Sheldon Leader’s theory
on freedom of association. The different characterisations of the right to
strike in the legal regimes of the ILO and EU is explored in the second
section, with a particular focus on the ECJ’s instrumental conception of the
right to strike as a defence to market freedoms rather than a freestanding
right. The third and final section assesses the potential for greater
convergence between the two jurisdictions, with the possibility arising
Human Rights and Fundamental Freedoms [hereinafter ECHR] on EU law.
I. Characterising the Right to Strike
Leader provides a useful framework for identifying two broad
conceptualisations of the right to strike that have emerged from legal
instruments in various jurisdictions. First, the right to strike is conceived as
an indirect, instrumental means of exercising the general right to associate.
Second, the right is viewed as a freestanding right derived from the right to
freedom of association.
6
The indirect, instrumental conceptualisation of the right to strike sees
it as a means to the proper exercise of freedom of association. This reflects
the notion that within the right of freedom of association, that to be in
association “means to act in association.”
7
Therefore it is claimed that the
right to strike is essential if a trade union is to be effective in its activities,
such as collective bargaining. However, this instrumental view meets the
advantage in international trade.” See Eurofound, Social Dumping.
ng.htm> (visited 29 January 2012).
6
Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory (Yale
University Press, 1992).
7
Retail, Wholesale and Department Store Union v Saskatchewan (1985) 19 DLR (4th) 609
(SK CA).
2012] The Right to Strike 103
resistance of those who deny any necessary connection between the right to
general trade union activity and the right to strike. When it comes to
assessing legislative restrictions on the right to strike, the instrumental
view may force courts to assess whether or not an ability to strike in any
given case is essential to ‘healthy’ trade union activities. Courts, then,
concerned with the limits of their competence, are likely to defer to the
legislature in choosing an appropriate or ‘proportionate’ resolution.
8
On the other hand, the independent conception of the right is
understood as a species of the right to freedom of association. There is a
possible objection by those who deny any real parallel between the object
and function of the right to freedom of association and the right to strike.
However, Leader makes a strong case for the rationale that both rights are
aimed at the same injustice, which demands symmetry between the
freedom of action enjoyed by individuals when acting alone and when
acting with others.
9
The right to strike is thus a “comprehensive challenge
to any attempt to make individuals liable for penalties for doing
collectively what they are allowed to do individually.”
10
Based on this
view, any restriction on collective rights must be directly assessed as
restrictions on freedom of association and can only be justified when the
right to strike is outweighed by stronger legitimate competing rights. It is
argued that this conception is less vulnerable to judicial abstention. When
interpreting and applying guarantees of a fundamental right, such as
freedom of association, the court cannot simply defer to the legislature in
deciding what exactly counts as a species of such a right.
11
According to Leader, the independent conception of the right to
freedom of association and the right to strike could only be understood as
belonging to individuals, who exercise the right collectively. The
individual dimension recognises that the right should not be restricted
where state channels all industrial action through institutionalised workers
and employers organisations. Thus individuals may exercise their right
through trade unions and/or less formal collectivities.
12
However, Leader’s treatment of individual and collective action can
be problematic, since coordinated collective action creates and is intended
to create a much larger impact than individual action.
13
It has been
suggested that Leader’s arguments can be supplemented with “an appeal to
8
Leader, note 6, at 198-199.
9
Ibid., at 202.
10
Ibid., at 183.
11
Ibid., at 199.
12
Ibid., at 183.
13
James Gross and Lance Compa, Human Rights in Labor and Employment Relations:
International and Domestic Perspectives (Cornell University Press, 2009), at 126-127.
104 Trinity College Law Review [Vol 15
what collective action, specifically in the work context, can achieve by
redressing the imbalance of power between worker and employer.”
14
With
this augmented argument in mind, Leader’s conceptualisations of the right
to strike provide a useful framework for analysing its different
characterisations and implications in the ILO and EU legal regimes.
II. A Comparison of the ILO and the EU
A. The ILO
With its foundations in the Treaty of Versailles, the ILO was originally
established as an agency within the League of Nations. Its aims and
objectives were set forth in the Preamble to its Constitution, drawn up in
1919, reflecting a wide range of motivations behind the organisation’s
inception.
15
First, a strong humanitarian concern over the exploitation of
workers is reflected in the Preamble, which states, “conditions of labour
exist involving… injustice, hardship and privation to large numbers of
people.”
16
The second motivation was political, which linked improving
the conditions of workers to the prevention of social unrest. As the
Preamble declared, “universal and lasting peace can be established only if
it is based upon social justice.”
17
Finally, standardising economic
considerations so that industries and countries would not find themselves
disadvantaged vis-à-vis competitors.
The ILO’s Declaration of Philadelphia of 1944 was incorporated into
the organisation’s amended constitution, which explicitly affirmed the
principles that “labour is not a commodity” and that “freedom of
expression and association are essential to sustained progress.”
18
Shortly
after the Declaration of Philadelphia, the International Labour Conference
in 1948 adopted the Freedom of Association and Protection of the Right to
Organise Convention
19
and in 1949 the Right to Organise and Collective
Bargaining Convention.
20
There is a notable textual absence of a right to strike in ILO
Conventions and Recommendations. This can be explained, to a large
14
Ibid., at 126.
15
International Labour Organisation, ILO History
ilo/history/lang--en/index.htm> (visited 28 January 2012).
16
Preamble of the ILO Constitution (visited
25 January 2012).
17
Ibid.
18
Ibid.
19
ILO, Convention 87 (adopted 9 July 1948).
20
ILO, Convention 98 (adopted 1 July 1949).
2012] The Right to Strike 105
extent, by the tripartite political dynamics at International Labour
Conferences. This involves representatives of government, labour and
employers in drafting, adopting, monitoring and enforcing international
labour standards through binding Conventions and non-binding
Recommendations. Workers’ delegations have withdrawn their support for
initiatives seeking to adopt minimum standards on the right to strike when
employers have sought to dilute the strength of those standards.
21
However,
its explicit textual absence has allowed the two ILO supervisory bodies, the
Committee on Freedom of Association [hereinafter CFA] and the
Committee of Experts on the Application of Conventions and
Recommendations [hereinafter Committee of Experts], considerable
leeway in developing the meaning and scope of the right.
The right to strike is implicit within the ILO framework and is
“derived entirely from the fact that it is a complementary right of the
freedom of association and the freedom of collective bargaining”
22
guaranteed under ILO Conventions No 87 and No 98 respectively. Even
without ratifying Conventions No 87 and No 98, states are deemed to have
accepted these constitutional principles by virtue of their membership of
the ILO. Furthermore, these conventions are part of the ILO’s Declaration
of Fundamental Principles and Rights at Work, commonly referred to as
‘core labour standards’ that require universal observance. Throughout its
decisions, the CFA has interpreted the right to strike as an “intrinsic
corollary” of the right to organise protected by Convention No 87.
23
Articles 3, 8 and 10 of Convention No 87, which protect trade unions’
rights to organise their administration and activities, to formulate their
programmes and to further workers’ interests, have been interpreted as
being inclusive of the right to strike.
24
The CFA has recognised that the right to strike “should not be
limited solely to industrial disputes that are likely to be resolved through
21
Tonia Novitz, International and European Protection of the Right to Strike ± A
Comparative Study of Standards Set by the International Labour Organization, the Council of
Europe and the European Union (Oxford University Press, 2003), at 336.
22
Ruth Ben-Israel, “Is the Right to Strike a Collective Human Right?” (1981) 11 Israel
Yearbook on Human Rights 195, at 203.
23
International Labour Office, Freedom of association: digest of decisions and principles of
the Freedom of Association Committee of the Governing Body of the ILO (5th ed., ILO, 2006),
at 109. ---ed_norm/---normes/documents/
publication/wcms_090632.pdf> (visited 29 January 2012).
24
International Labour Organisation, General Survey of the Reports on the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No 87), and the Right
to Organise and Collective Bargaining Convention, 1949 (No 98) International Labour
Conference 81st Session (Geneva, 1994) Report III (Part 4B), at 147.
106 Trinity College Law Review [Vol 15
the signing of a collective agreement.”
25
Strikes could be called where
social or economic interests of workers are at stake, even when mixed
motives, including political or ideological elements, are involved.
26
While
“strikes of a purely political nature and strikes decided systematically long
before negotiations take place” are not within the scope of freedom of
association principles, workers can exercise the right in searching for
solutions to major social and economic policy problems that are of direct
concern to them.
27
Workers should be able to engage in sympathy strikes if
the initial strike they are supporting is lawful in the first place. These broad
interpretations by the ILO supervisory bodies demonstrate recognition of
the relationship between the exercise of the right to strike, political
participation, and the enjoyment of civil liberties, such as freedom of
speech.
28
The wide scope for legitimately exercising the right to strike
suggests that it is not simply a means of furthering collective bargaining or
trade union activities, but a freestanding right.
In addition to recognising that strike action is a right and not simply a
social act, the CFA has clearly stated that it is a right of workers and their
organisations.
29
It has also reduced the number of categories of workers
whose exercise of the right may be restricted: members of armed and
police forces, public servants who exercise authority in the name of the
State and workers in essential services, in the strict sense of the term
(“services whose interruptions could endanger the life, personal safety or
health of the whole or part of the population.”)
30
Furthermore such workers
should be afforded appropriate guarantees to compensate for the
restrictions, such as recourse to impartial and rapid mechanisms for
resolving complaints and disputes.
31
Decisions of the CFA and Committee of Experts have also
established other noteworthy principles on the right to strike.
32
For
example, acceptable conditions for the exercise of the right to strike
include obligations to give prior notice, to engage in conciliation and
voluntary arbitration, to obtain agreement of a given majority where this
does not render taking strike action difficult or even impossible in practice
25
International Labour Office, note 23, at 111.
26
The term ‘political strike’ has customarily represented a key exception to legal protection
that would otherwise apply to those engaged in industrial action.
27
International Labour Office, note 23, at 110-111.
28
Novitz, note 21, at 295.
29
Gernigon, Odero and Guido, note 2, at 443-444.
30
International Labour Office, note 23, at [541].
31
International Labour Organisation, 330th Report of the Committee on Freedom of
Association (ILO, 2003) Case No 2208, at [601].
32
Gernigon, Odero and Guido, note 2, at 55.
2012] The Right to Strike 107
and to employ the secret ballot method to decide strike action. Another
important principle is that the legislative prohibition of strikes during the
term of collective agreements constitutes a major restriction on this ‘basic
right,’ which must be compensated by the right to have recourse to
arbitration on grievances arising from interpreting or applying the
collective agreements.
The supervisory bodies have also laid out principles relating to the
protection of workers during the course of industrial action. For instance,
the hiring of workers to replace strikers seriously impairs the right to strike
and is acceptable only in strikes affecting an essential service or in
situations of acute national crisis. Trade union officials and workers
engaged in a legitimate strike should also have appropriate protection from
dismissal and other detrimental acts at work. However, there is no
objection to legal provisions on wage deductions for the period of strikes.
In addition, abuses in the exercise of the right to strike (eg acts of a
criminal nature, failure to comply with reasonable requirements regarding
lawfulness) are not protected by the freedom of association, but the
imposition of sanctions for abuse of this right shall not be disproportionate
to the seriousness of the violations.
It can be seen that the ILO’s supervisory committees have developed
a large body of principles on the right to strike, based on the general
principles of freedom of association embodied in the ILO Constitution and
in the primary Conventions on this subject (No 87 and No 98). Despite its
textual absence in ILO Conventions and Recommendations, the right to
strike has been characterised as a fundamental, independent ‘offspring’
derived from the right to freedom of association.
B. The EU
i. From an Economic Union to the European Social Model
With its genesis as an economic union, internal market freedoms (free
movement of goods, services, labour and capital) were given fundamental
status in the EU Treaties. For many decades, the EU did not have
competence in social legislation, including industrial relations and labour
legislation. These areas were left to the legislatures of individual Member
States. In the 1970s and 1980s, growing concerns about the social
consequences of economic integration gave rise to an acknowledgement
that the creation of a single market needed to be twinned with social
108 Trinity College Law Review [Vol 15
progress in the EU.
33
There was an increasing acceptance of the view that
social rights were not necessarily burdens on business but productive
factors; a crucial rationale underlying the ‘modernised European Social
Model.’ Thus, as Sandra Fredman has argued, any social rights at the EU
level have, until recently, had to be justified in market-orientated terms.
34
EU level collective labour rights were first recognised in the non-
binding Charter on Fundamental Social Rights of Workers in 1989. The
EU subsequently incorporated employment and social policy titles through
the Treaty of Amsterdam 1997. However, the right to freedom of
association and right to strike or lock-up were explicitly excluded from the
legislative competence of the EU,
35
largely reflecting Member States’
desire to maintain regulatory abilities over their diverse industrial relations
systems. Explicit rights to strike can be found in the constitutions of some
EU Member States; in others, the right is implied or expressed as a
freedom to strike and not as a right per se.
36
An important source of EU social rights came from the ECJ through
its fundamental rights jurisprudence, which the Court developed as part of
its general principles of law. Fundamental rights were generally derived
from ‘constitutional traditions’ common to the Member States and from the
guidelines of international human rights instruments to which Member
collective rights (and social rights generally) have been difficult to achieve.
Fundamental rights have acted as ‘shields’ instead of ‘swords,’ constituting
only exceptions to the EU’s economic freedom guarantees and not as bases
for proactive efforts to enforce workers’ rights.
ii. EU Charter of Fundamental Rights ² A New Dawn?
The EUCFR was a significant watershed, which gave rise to an
independent source of EU social rights. With the Treaty of Lisbon coming
into force in 2009, the EUCFR (which was signed and proclaimed in 2000
by EU institutions but was a ‘soft law’ EU document) became binding in
the EU and directly enforceable in national courts. It is the first formal EU
instrument that combines the whole range of civil, political, economic and
social rights into a single text. The Charter’s prime objective is to make
33
Case 43/75 Defrenne v Sabena [1976] ECR 455.
34
Sandra Fredman, “Transformation or Dilution: Fundamental Rights in the EU Social Space”
(2006) 12 (1) European Law Journal 41, at 42.
35
Art 153(3) Treaty on the Functioning of the European Union (ex Article 137(5) TEC).
36
Eurofound, European Industrial Relations Dictionary
htm> (visited 25 December 2011).
2012] The Right to Strike 109
rights more visible. The text is not intended to establish new rights, but to
assemble existing rights that were previously scattered over a range of
sources including the ECHR and other Council of Europe, United Nations
and ILO instruments.
Not only is the right to freedom of association recognised in Article
12 of the EUCFR, Article 28 also provides
[w]orkers and employers, or their respective organisations, have, in
accordance with Community law and national laws, the right to
negotiate and conclude collective agreements at the appropriate
levels and, in cases of conflicts of interest, to take collective action to
defend their interests, including strike action.
Article 28 appears to cover industrial action of all kinds taken to defend
workers’ interests, including secondary action. However there is
considerable ambiguity in the wording, which states, “workers and
employers, or their respective organisations” have the right to take
collective action. The individual right of workers to engage in collective
action is not specifically affirmed.
37
This right is explicitly subject to national and EU laws and practices.
It is also limited, as the Charter does not create new competences for the
EU. Bearing in mind that the EU has no competence to regulate the right to
strike, the potential of Article 28 may be seen as a defensive mechanism to
prevent EU institutions from interfering with collective rights at Member
States’ level. However, there is ambiguity over what constitutes justiciable
rights (ie rights that can be enforced by the ECJ and national courts) and
non-justiciable principles within the EUCFR. The one suggestion seems to
come from Protocol 30 on the Application of the EUCFR, which is
intended to prevent certain rights, such as the right of collective action,
from being directly enforceable in the three Member States to the Protocol
(UK, Poland and Czech Republic),
38
possibly implying that these rights are
justiciable in other Member States. These problematic provisions in the
Charter have the potential to exert a ‘chilling effect,’ tempering the
potential of Article 28 as a source to preserve the lawful exercise of the
right to strike in Member States from encroachment by EU institutions.
37
Bernard Ryan, “The Charter and Collective Labour Law” in Tamara Hervey and Jeff
Kenner eds., Economic and Social Rights under the EU Charter of Fundamental Rights (Hart
Publishing, 2003), at 76.
38
Protocol 30 to the Treaty on European Union and Treaty on the Functioning of the
European Union, On the Application of the EUCFR to Poland and the UK, OJ C83/313, 30
March 2010.
110 Trinity College Law Review [Vol 15
Importantly, the right to take collective action, including the right to
strike under Article 28, is specifically situated within the context of
negotiating and concluding collective agreements. This is a much narrower
scope when compared with the principles that have been laid down by the
ILO supervisory bodies on the legitimate exercise of the right. Thus,
instead of characterising the right to strike as an independent fundamental
right of workers and their organisations, there is a strong instrumental
conception underlying Article 28, with the exercise of the right arising only
in cases of industrial conflicts of interests. Recent judgments of Viking and
Laval have further shown the ECJ’s hesitant approach to enforcing the
right to strike under the EUCFR. Despite an explicit recognition of this
right as fundamental in the EU legal order, the Court ended up with a
‘defensive’ conception of the right. Instead of characterising it as
freestanding and positively protected in the EU, unions can only invoke the
right to strike to defend themselves against violations of free movement
provisions in the EU Treaty. As Tonia Novitz and Phil Syrpis put it,
“[w]hat has been given with one hand, the right to take collection action,
[is] so circumscribed as to be taken away with the other.”
39
iii. Viking and Laval: the 'Trump Card' of Economic Freedoms
The Viking case concerned a Finnish ferry firm that wanted to ‘reflag’ its
vessel, the Rosella, to an Estonian flag. This ‘reflagging’ meant that the
ship could take on an Estonian crew who were paid considerably less than
the existing Finnish crew. The ferry’s crew were members of the Finnish
Seamen’s Union [hereinafter FSU], an affiliate of the International
Transport Workers’ Federation [hereinafter ITF]. The ITF had been
running a campaign against ‘flags of convenience’ practices and notified its
affiliates in jurisdictions where the Rosella visited to boycott and take
solidarity industrial action against Viking vessels. Viking sought an
injunction in the English High Court (since the ITF was based in London)
to stop the ITF and FSU from engaging in industrial action on the grounds
that this would violate its freedom of establishment guaranteed under
Article 43 [now Article 49] EC. Initially, the High Court ruled against the
ITF stating
39
Tonia Novitz and Phil Syrpis, “Giving with the One Hand and Taking with the Other:
Protection of Workers? Human Rights in the European Union” in Colin Fenwick and Tonia
Novitz eds., Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing,
2010), at 463-483.
2012] The Right to Strike 111
[a]ny measure which places an additional financial burden on a
person so as to make the exercise of a free movement right more
difficult constitutes a restriction on that free movement right.
40
However, the Court of Appeal reversed the High Court’s decision and
referred the case to the ECJ since it “raises important issues relating to the
interaction of the key provisions of the Treaty dealing with free movement
and the fundamental rights of workers to take industrial action.”
41
The case of Laval involved a Latvian building firm that posted
workers to Sweden to work on a building site. The Swedish building union
sought to negotiate with Laval’s Swedish subsidiary with the aim of
extending a sector-wide collective agreement to the posted workers and
negotiating wages on their behalf, so as to prevent Latvian labour from
undercutting the cost of Swedish labour. The agreement would have
contained worker-protective terms that were more favourable than the
EU’s Posted Workers Directive,
42
and a clause on setting minimum wages
through negotiations at the particular workplace. When Laval refused to
sign the collective agreement, the Swedish building union, supported by
the Swedish Electricians’ Union, commenced collective action against
Laval by blockading its building sites in Sweden. Laval commenced
proceedings in the Swedish courts seeking, inter alia, an injunction to
cease the industrial actions. Laval relied on Article 12 EC [now Article 18
Treaty on the Functioning of the European Union (hereinafter TFEU)] and
Article 49 [now Article 56] EC and the Posted Workers Directive, arguing
that these industrial actions amounted to an infringement of the freedom to
provide services. The Swedish Court referred the matter to the ECJ.
In both cases, the ECJ cited ILO Convention No 87 and Article 28 of
the EUCFR among other regional and international instruments in
declaring that the right to strike was a fundamental right recognised as a
general principle of EU law.
43
The use of the EUCFR here is significant,
since the Court has been reluctant to rely on it so far.
44
However, the ECJ
also asserted that where a cross-border strike has the effect of limiting free
movement of service in the EU, the exercise of the right to strike must be
40
9LNLQJ /LQH $%3 Y ,QWHUQDWLRQDO 7UDQVSRUW :RUNHUV¶ )HGHUDWLRQ WKH )LQQLVK 6HDPDQ¶V
Union [2005] EWHC 1222, at [105].
41
ITF v Viking [2005] EWCA Civ 1299, at [1].
42
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services, OJ L 018, 21
January 1997 [hereinafter Posted Workers Directive].
43
Case C-438/05, at [42]-[44]; Case C-341/05, at [89]-[91].
44
Anne Davies, “One step forward, two steps back? The Viking and Laval cases in the ECJ”
(2008) 37 Industrial Law Journal 126, at 131.
112 Trinity College Law Review [Vol 15
justified with reference to the end that it serves. Viking and Laval place an
onerous burden on trade unions to show this justification and to
demonstrate that they were pursuing a legitimate objective compatible with
the EC Treaty [now TFEU] and justified by “overriding reasons of public
interest.” The action taken must be proportionate to achieving the
objective, ie it does not go further than is necessary to achieve the objective
being sought.
As Leader has argued, an instrumental conception of the right to
strike may lead to judicial hesitancy in assessing whether or not the strike
action in any given case is essential to ‘healthy’ trade union activities. In
these cases, the ECJ recognised that ‘protection of workers’ could be a
legitimate aim of taking industrial action but adopted a very limited
formulation of this, requiring a connection between the action taken and
tangible, even immediate, benefits for particular workers.
45
For example, in
Viking, the actions of the ITF were condemned as the Court was not
prepared to contemplate that its campaign against ‘flags of convenience’
could be defensible for trade union activities in promoting workers’
interests in a general way. The legitimate aims of strike action could only
include protecting working terms and conditions of current union members,
which are much narrower than the ILO’s permissible scope.
In Laval, the ECJ accepted in principle that collective action aimed at
preventing social dumping could be a legitimate aim. However, the ECJ
adopted a highly restrictive reading of the Posted Workers Directive, in
which the Directive was said to constitute a maximum ‘ceiling’ (rather than
a ‘floor’) of standards that could apply to posted workers. The Court’s
reasoning was that employers might be forced, by collective action, into
negotiations with trade unions of unspecified duration under the Directive
framework, which could not be justified on public interest grounds. The
Court’s preoccupation with the burden of uncertainty on an employer
placed under pressure to enter into collective bargaining, in effect,
threatens the use of collective action as a means of protecting workers
against social dumping.
There is considerable incongruence between the ECJ’s vision of
industrial relations and bargaining and the reality. Under the
proportionality requirements, a trade union must have no other means at its
disposal that are less restrictive of freedom of establishment to bring
collective negotiations to a successful conclusion and the union must have
exhausted those means before initiating collective action.
46
Commentators
have observed that this requirement has the potential to undermine standard
45
Novitz and Syrpis, note 39, at 423.
46
Case C-438/05, at [87].
2012] The Right to Strike 113
hard-line negotiating tactics used by both employers and unions in
industrial disputes.
47
The result may be that trade unions in EU Member
States may be less willing to risk legal liability by taking collective
action.
48
This concern is particularly acute since the ECJ found that trade
unions could be liable under EU law for limiting an employer’s freedom of
establishment.
49
Thus, both the labour laws of EU Member States and the
actions taken by trade unions are now subject to scrutiny. This also raises a
serious question of whether the ECJ possesses the requisite expertise in
industrial relations practice to make such decisions.
The ECJ’s role as a supranational court comes strongly to the fore in
Viking and Laval. The proportionality requirement imposed by the ECJ
means that legal strikes under national laws in Member States could be
declared illegal under EU law. In contrast to other cases involving national
labour law systems, the court in Viking and Laval did not defer to Member
States on the basis of principles of subsidiarity. It has thus been observed
that the ECJ has used the EUCFR to limit the right to strike across all
Member States, representing an infringement of subsidiarity
50
and possibly
even circumventing the restriction in Article 153(5) excluding the right to
strike from EU legislative competence.
51
Was the ECJ necessarily bound (in principle) to come down in
favour of economic aims when reconciling two fundamental norms within
the EU legal order? Although the guarantees of economic freedoms are
entrenched in the EU framework (given the EU’s origins as a purely
economic union), the ECJ has in the past emphasised the equal importance
of the EU’s social aims where they conflict with economic freedoms. The
ECJ’s earlier judgment in Albany
52
represented such an approach where the
ECJ had previously insulated a social objective (of the social partners
setting up a specific pension fund for textile workers) from EU competition
rules. However, the ECJ in Viking and Laval chose not to follow the
Albany route. Instead, the Court broadly interpreted Article 43 EC [now
Article 49 TFEU] on freedom of establishment across borders and Article
49 EC [now Article 56 TFEU] on freedom to provide services across
borders to catch anything which “hinders or renders less attractive” the
47
Novitz and Syrpis, note 39, at 425.
48
Davies, note 44, 145-146.
49
Case C-438/05, at [62].
50
Davies, note 44, at 145.
51
Brian Bercusson, European Labour Law (2nd ed., Cambridge University Press, 2009), at
668.
52
Case 67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie [1999]
ECR I-5751.
114 Trinity College Law Review [Vol 15
exercise of these free movement rights. It has been argued that a key aim of
collective action is to
impose costs on employers and thus to ‘render less attractive’ a
particular course of action, it is indeed difficult to think of examples
of meaningful collective action in a cross-border context that would
not be caught by Articles 43 [now Article 49] and 49 [now Article
56].
53
It is argued here that if the ECJ had genuinely characterised the right to
strike as a fundamental, freestanding right, the right to strike could have
been considered as falling outside the free movement provisions of the EC
Treaty. Instead, the ECJ favoured an instrumental conceptualisation of the
right to strike as a defensive means for workers and trade unions, thus
subjecting the right to onerous proportionality requirements (which are not
applied to the employers’ exercise of their economic freedoms).
iv. Is This Being Overcritical of ECJ Jurisprudence?
An argument could be made that the decisions in Viking and Laval were, to
some extent, driven by textual and institutional constraints. The EU has no
legislative competence to regulate the right to strike, in contrast to the clear
Treaty obligations to guarantee cross-border economic freedoms. What
Viking and Laval may reveal is the limited ability of EU political actors to
resolve the conflict between economic integration and the protection of
labour standards, which has meant that the decision has been delegated to
the ECJ. “[G]iven little guidance from the Treaties or Community
legislation, the Court has…attempt[ed] to find a compromise solution”
54
(although one that has proven unacceptable to trade unions). It should also
be noted that the facts of Viking and Laval are situated in the context of the
accession of ten new States to the EU. It is possible that the ECJ judgments
were motivated by the Court’s fears of undue ‘protectionism’ on the part of
the established Member States and their industrial relations actors, even
though it may have been at the expense of the erosion of solidarity between
European workers.
It should also be noted that the divergence in the ILO’s and EU’s
respective characterisation of the right to strike could be partly explained
by the historical backgrounds and the primary mandates of the two
organisations. The ILO has a constitutional mandate to promote social
53
Davies, note 44, at 140.
54
Novitz and Syrpis, note 39, at 414.
2012] The Right to Strike 115
justice and to prevent social dumping. Unlike the ILO, the ECJ is
constrained by the conflicting aims of safeguarding both economic
freedoms of the internal market and promoting social goals of the
European Union, such as worker protection.
III. Possibility of Convergence?
In 2010, the ILO Committee of Experts stated that the principles in Viking
and Laval represent a limitation of the right to take collective actions. This
type of limitation creates a situation where workers’ freedom of association
rights under Convention No 87 cannot be exercised accordingly.
55
Despite
the significant differences in the ILO’s and EU’s interpretation of the right
to strike there is potential for some degree of convergence in the future,
particularly in light of the contemplated accession of the EU to the ECHR.
To date, the ECHR is supposedly given ‘special significance’ as a guiding
principle in the ECJ’s case law. Article 52(3) of the EUCFR further
stipulates
[i]n so far as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights
and Fundamental Freedoms, the meaning and scope of those rights
shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive
protection.
others, including the right to form and to join trade unions for the
protection of his interests.” Furthermore Article 11(2) stipulates very small
number of narrow categories of permissible restrictions on this right that
“are necessary in a democratic society.” While the ECHR covers civil and
political rights, the European Social Charter [hereinafter ESC] contains a
range of social and economic rights. However, unlike the ECHR, the ESC
is legally binding only on Member States that have signed the Charter and
relies on a much weaker reporting and monitoring mechanism, without an
individual right of complaint. A limited collective complaints mechanism
to the European Committee on Social Rights is now in place but does not
come close to the enforcement powers of the European Court of Human
Rights [hereinafter ECtHR]. On the whole, the ESC has been “little known,
55
International Labour Organisation, Report of the Committee of Experts on the Application
of Conventions and Recommendations International Labour Conference 99th Session
(Geneva, 2010), at 208.
116 Trinity College Law Review [Vol 15
rarely referred to and often ignored in practice.”
56
Yet, it is the only
Council of Europe instrument that contains an express right to strike, in
Article 6(4):
With a view to ensuring the effective exercise of the right to bargain
collectively, the Parties … recognise: 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 traditional division between the right to strike in the ESC and the right
to freedom of association in the ECHR has been eroded by the ECtHR’s
increasing willingness to support the right to strike as a species of right
derived from freedom of association principles in Article 11 of the ECHR.
The ECtHR’s earlier jurisprudence on Article 11 consisted of restrictive
interpretations, such as recognising a limited right of a trade union to be
heard by the employer,
57
but left to member states the choice as to the
particular means by which this would be achieved.
58
The Court had also
consistently held that the right to strike was not an essential part of the
right to freedom of association.
59
However, a shift away from this
instrumental view of the right to freedom of association (and with it, the
judicial deference to the legislators in deciding the appropriate means to
the end) is apparent in the Court’s recent decisions in Demir and Baykara v
Turkey
60
and Enerji Yapi-Yol Sen v Turkey.
61
In both cases, the ECtHR
relied on the ILO’s principles on the right to freedom of association as well
as ESC standards to recognise an inherent right to strike as an essential
corollary to the right to collective bargaining derived from Article 11 of the
ECHR.
In contrast to the ECJ in Viking and Laval, the ECtHR in Demir and
Enerji gave a robust meaning to the right to strike in line with the ILO
supervisory bodies.
62
Not only did the Court recognise that a breach of the
right to strike was a breach of ECHR Article 11(1), it also interpreted the
56
Novitz, note 21, at 131.
57
Wilson and NUJ v UK [2002] IRLR 568.
58
Swedish Engine Drivers Union v Sweden (1976) 1 EHRR 617; National Union of Belgian
Police v Belgium (1975) 1 EHRR 578.
59
Schmidt and Dahlström v Sweden (1976) 1 EHRR 632, at [40]-[41].
60
61
62
For a more comprehensive analysis of Demir and Enerji (which is beyond the scope of this
article), see Keith Ewing and John Hendy, “The Dramatic Implications of Demir and
Baykara” (2010) 39 Industrial Law Journal 2.
2012] The Right to Strike 117
permissible restrictions on the right to freedom of association in Article
11(2) very narrowly. In Enerji the ECtHR held that the Turkish
government’s outright prohibition of industrial action by public sector
unions could not conform with Article 11. The Court did not accept the
Turkish government’s arguments that the ban was in response to a
‘pressing social need’ in a democratic society for the purposes permitted by
Article 11(2). Thus, the ECtHR’s jurisprudence now seems to indicate that
any barrier with an inhibiting effect on individuals’ and trade unions’
exercise of the legitimate right to strike (including lesser sanctions such as
a written warning for participating in a strike)
63
will be a breach of Article
11(1), unless it falls within the narrowly interpreted categories of Article
11(2).
appears to be a step closer to the conception of the right to strike given by
the ILO supervisory bodies. There is a possibility that the ECJ may be
more eager to see jurisprudential alignment with the ECtHR. If this is the
case, the ‘trump card’ of internal market freedoms over the right to strike in
the EU legal order could, in effect, be removed. On the seemingly
divergent paths of the two courts, Keith Ewing and John Hendy have
provocatively noted
[t]he stage is set for a titanic battle of the juristocrats, each vying for
supremacy in the European legal order, one determined to impale
trade union rights on the long lance of economic freedom and the
other subordinating economic freedom to the modest demands of
human rights and constitutionalism.
64
Conclusion
While the ILO supervisory bodies have characterised the right to strike as
an intrinsic, freestanding right derived from the right to freedom of
association, the ECJ has adopted an instrumental conception despite its
presence as a fundamental right in the EU legal order. The implications of
these two types of characterisation can be seen in the permissible scope of
restrictions placed on the right. The ILO recognises only a narrow scope of
permissible restrictions on this fundamental right of workers and their
unions. However, conceived as a means of furthering trade union activities
in the EU regime, the right to strike can only be exercised proportionately
63
Kaya and Seyhan v Turkey 15 September 2009 (ECtHR).
64
Ewing and Hendy, note 62, at 42.
118 Trinity College Law Review [Vol 15
to the Union’s objectives, with no other means at its disposal which are less
restrictive of employers’ freedom of movement in the internal market. The
ECJ’s interpretation in Viking and Laval not only dampens the potential of
the EUCFR’s explicit recognition of the right to take industrial action but
also leads to the prospect that laws in effect in Member States may be
declared inconsistent with EU law.
The possibility of convergence between the ILO and the EU may
emerge if the jurisprudence of a third player, the ECtHR (which has
referred extensively to ILO standards in recent decisions) exerts a stronger
influence on ECJ decisions in the near future. The ECtHR’s increasing
willingness to support the right to strike as a species of right derived from
freedom of association principles in Article 11 ECHR is more closely
aligned with the interpretations taken by the ILO supervisory bodies. With
the possibility of some degree of convergence between ECJ and ECtHR
jurisprudence in the future, the right to strike may be genuinely
characterised as a fundamental, freestanding right that prevails in the face
of the EU’s internal market freedoms.
To continue reading
Request your trial