by Mark Porter - Unite activist & Rolls Royce Barnoldswick convenor

In this article we will look at employee’s rights to strike, freedom of association and collective action summarising the arguments advanced by Professor Keith Ewing in The Draft Monti II Regulation: An inadequate Response to Viking and Laval views to which I subscribe to.

The right to strike is a fundamental freedom, a principle that can be traced back to 1948 via Article 11of the European Convention on Human Rights and the International Labour Organisation standard C87 Freedom of association and protection of the right to Organise Convention.

Despite such freedoms, most Trade Unionists already know the difficulties we face and the hurdles that we must overcome before we can even contemplate running a ballot never mind taking any form of action, although some relief in this area was recently provided by the ASLEF case. Most of us are also aware that many of our European Brothers and Sisters enjoy greater freedoms to protect their jobs and their terms and Conditions of Employment. However, over the last few years some of those freedoms have been eroded by decisions taken in the European Court of Justices (ECJ) namely Viking and Laval.

It is worth noting that the decisions in  Viking and Laval apply to EU transnational issues, i.e. disputes between two members of the European Union, but as Ewing argues there are serious cross over implications for Trade Unions here in the UK.

Whilst it is true that the European Court of Justices recognised the Right to take collective action and the right to strike for the first time in the cases of Viking and Laval, acknowledging it forms an integral part of EU Community Law, the acknowledgment came with strings attached.

The strings came in the form of restrictions such as “collective action” may only be taken in limited circumstances (para 81) and where having met those circumstances only then if it was suitable to achieve its objective and did not go beyond what is necessary (para 84). The court did state that the question as to necessity falls to the applicable national courts to decide (para 87) taking in to account applicable national legislation, which as we all know here in the UK is very restrictive and anti union in its nature, besides also failing to comply with ILO conventions. see http://www.ilo.org/ilolex/english/caseframeE.htm for more details.

The implications of the Viking ruling and its encroachment on UK law is demonstrated by the BALPA case, in which the pilots union sought assurances from the UK high court that the proposed industrial action against British Airways, against the setting up of a subsidiary in France, which it was feared would be used to drive down terms and conditions here in the UK, was legal.  In their defence British airways sought to rely on Article 43 ECTreaty

(now Art 49 TFEU). But it was BA’s counterclaim for unlimited damages, that ultimately lead the union to withdraw from the proceedings before a judgement was given and to cease its industrial action altogether. BALPA decided the financial risks of losing were too great, choosing instead to file a complaint to the ILO Freedom of Association Committee who in turn referred the complaint to its Committee of Experts.

The committee upheld BALPA’s complaint, declaring that the effects on UK legislation arising from the decision in  Viking only served to strengthen the UK’s non compliance with Convention 87. It also questioned the validity of the ruling in Viking itself, stating it has never been necessary to assess the proportionality of interests when deciding the legality of a strike, given the freedom of establishment or freedom to provide services. Concluding, the threat of damages arising from any such action, made possible in light of the Viking and Laval cases and the consequences for the union itself, virtually made it impossible to exercise the conventional rights.

As Ewing points out the British government claimed that it was powerless to address this position because of its obligations derived from EU Treaties. Unsurprisingly, the ILO disagreed with the UK Governments interpretation, stating domestic legislation could be introduced which could place limitations on actions for damages, negating the possibility of bankruptcy for unions thus, protecting the workers right to strike.

Another worrying aspect of the decisions in Viking and Laval relates to the question of liability in damages and perhaps more fundamentally the potential of those damages being unlimited. Whilst Viking and Laval did not directly address the issue, the effects of the ECJ decisions were evident when the Laval case was referred back to the Swedish Labour Court for the question of remedy. Despite that Court previously declaring the action in the Laval case was legal under Swedish Law, the union were found liable for damages and incurred costs of nearly 350,000 Euro’s in damages, legal costs and interest, those figures excluded the unions own legal costs at both the domestic and European level, however, the union did receive a  little consolation by the courts refusal to issue economic damages against the Union, but only on the grounds of insufficient evidence and not because Laval did not have a legal right.

The Swedish Labour Courts decision has also provided the ILO with cause for concern and raises questions of compliance with conventions 87 and 98 and they have requested the Swedish government monitor the situation, but Ewing argues that at some point the ILO Committee of Experts must directly address the question of compatibility between Laval, Ruffert and Luxembourg and conventions c87 and c98.

However, according to Ewing there is a third strand to consider when addressing these issues and that is the European Convention on Human Rights (ECHR) and the impact on Trade

Union rights, in light of recent decisions taken by the European Court of Human Rights (ECtHR) most notably Demir and Baycara v Turkey

In 2008 the Grand Chamber of the ECtHR unanimously departed from long established case law (est.1970), which granted Trade Unions were free to pursue members interests, but did not guarantee a right to any particular form of action. In reaching their decision consideration was given to a number of international treaties including those from the ILO c98 and c151 along with the Council of Europe’s Social Charter Art 6(2) and the EU Charter of Fundamental Rights Art 28

After considering the relevant authorities the court held that the right to collectively bargain was a principle recognised by international law instruments which equally applied to civil servants as well as the private sector and was a practice widely recognised by the majority of EU member states.

Despite the ruling in the case in question relating to collective bargaining, the arguments presented by the courts apply equally to collective action under the umbrella of Art 11 ECHR according to Ewing, who believes the ruling is extremely important, stating the ruling now means that in determining if action is proportionate and necessary full consideration of all international treaties must be given before any restriction is placed on any proposed industrial action, arguing that it would be very difficult to conclude a restriction on convention rights will be proportionate, if the restriction is inconsistent with the international labour conventions that provided the right in the first place .

Evidence in support of Ewing’s view can be ascertained by taking a look at Enerji- Yapp Sen v Turkey in which the ECtHR applied the principles established in Demir and Baycara v Turkey and extending the principles scope to cover collective action, although in doing so it raised a number of other questions which to date Ewing says (see The Draft Monti II Regulation: An inadequate Response to Viking and Laval para 31 ) have not been addressed, nevertheless, a clear picture is beginning to emerge.

It terms of the right to strike, it appears that the rulings provide Trade unions and individuals with  a reasonably wide scope to take action in order to defend or secure collective agreements and improve terms and conditions. The rulings also provide significant authority to limit any restrictions that employers may be granted via the courts in relation to the right to strike, without such restrictions leading to a breach of international treaties.

The limitations on trade union freedoms that Viking and Laval introduced are not supported by any authority at a national level, nevertheless as Ewing states they still present problems to trade unions because they make it virtually impossible to take industrial action in disputes with an EU trans-national dimension and for opening up the question of trade union liability in damages which the Draft Monti II regulation fails to address.

Ewing highlights Art2(2) as being one of the most significant aspects of the failing, which virtually transposes the restriction of the Viking judgment in to legislation. The restriction being the need to balance the right to strike with proportionality, contrary to the ILO’s opinion on proportionality as expressed in BALPA(page 209) . He also argues that the decisions of the ECJ in Viking and Laval will have to be reconsidered in light of the ILO Committee of Experts opinion on compliance with conventions and development in the ECtHR, both of which he claims render the decisions in Viking and Laval inconsistent with the new approach that has been established.

Ewing also raises concerns surrounding Art 3 which is almost a verbatim extract from the Viking judgment which states that ultimately it will be up to the National Courts in each member state to determine if the proposed action is suitable for achieving its intended objective and does not go beyond what is necessary. He points out that whilst this might be acceptable in some member states it almost undoubtedly will spell trouble for UK trade unions.

In sum, it was the decisions taken by the ECJ in Viking and Laval and the restrictions they placed on the Right to strike, collective action and freedom of association and its implications within EU member states at a national level, which having now been considered at International level, both by the ILO and the ECtHR and found to be incompatible with the relevant international authorities on the matter, that has placed obligations on the EU to try to address.

Unfortunately according to Ewing the EU’s response in the form of the Draft Monti II Regulations, fails to take in to account the ECHR and its developments as prescribed by the ECtHR, along with the ILO Committee of Experts opinions. Concluding that until some of the draft legislations architecture is redrafted to take into account human rights principles, and removes the threat of unlimited damages against unions for exercising their social rights, those obligations will remain unfulfilled.