The dramatic implications of Demir and Baykara

Industrial Law Journal

Volumn 39, Issue 1, 2010, Pages 2-51

  Ewing, K D ^a   John Hendy, Q C ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77951949258     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwp031     Document Type: Article

References (206)

1. Demir and Baykara v Turkey, Application No 34503/97, 12 November 2008, para 19
2. Application No 34503/97, 21 November 2006
3. Grand Chamber, para 8
4. Swedish Engine Drivers' Union v Sweden (1976) 1 EHRR 617
5. National Union of Belgian Police v Belgium (1975) 1 EHRR 578
6. M. Forde, 'The European Convention on Human Rights and Labor Law' (1983) 31 American Journal of Comparative Law 301.
7. Swedish Engine Drivers, para 40
8. Belgian Police, para 38 (in relation to the 'right' to be consulted)
9. Schmidt and Dahlström v Sweden (1976) 1 EHRR 632, para 36 (in relation to the right to strike)
10. The ESC 1996 has not been ratified by the UK and is not referred to further in this article
11. See Belgian Police, at para 38
12. Swedish Engine Drivers, at para 39
13. Demir and Baykara, para 154
14. [2002] IRLR 568; Application Nos 30668/96, 30671/96 and 30678/96.
15. [2007] IRLR 361; Application No 11002/05
16. Demir and Baykara, paras 98-101, 147-151
17. Although the ECtHR in Demir and Baykara did not refer to it, the judgment is practically a mirror image of the decision of the Supreme Court of Canada in Health Services and Support-Facilities Subsector Bargaining Association v British Columbia 2007 SCC 27, [2007] 2 SCR 391, where the Supreme Court likewise expressly rejected its earlier case law in order to find that collective bargaining was thenceforth protected under Art 2(d) of the Canadian Charter of Rights (paras 23 31). The court reviewed the historical importance of collective bargaining in Canada (paras 43 67); recognised that collective bargaining reflected the values of human dignity, equality, respect for personal autonomy and enhancement of democracy (paras 80 86); and relied on the relevant international treaty material (other than the ESC, which had no application in Canada) (paras 70 79).
18. See J. Fudge, 'The Supreme Court of Canada and the Right to Bargain Collectively' (2008) 37 ILJ 25.
19. The identical conclusions separately reached by these two eminent courts shows an international convergence in relation to the rights included in freedom of association to which parochial critics must now defer
20. Demir and Baykara, paras 147-148, and see paras 100-102
21. The ECtHR also relied on Art 28 of the Charter of Fundamental Rights of the European Union adopted at Nice in 2000 and recognised by Art 6 of the Treaty on European Union. The Charter is now recognised post-Lisbon by the Treaty of European Union, Art 6. Art 28 of the Charter, though a relevant statement of fundamental principle for most of the EU, has no impact in Poland or the UK since Protocol 30 to the Lisbon Treaty provides that, in their cases, neither the ECJ nor any domestic court may find that any existing law is inconsistent with Art 28 rights and that Art 28 creates no justiciable rights beyond existing domestic law.
22. Though Art 31 of the ESC is equivalent in terms to Art 11(2) of the ECHR
23. In Wilson v United Kingdom (above), Art 11(2) was simply brushed aside
24. Paras 159-161
25. Paras 162-169
26. Para 165
27. Demir and Baykara highlights a very different approach to proportionality (and the use of these international standards in relation to proportionality) to that of the ECJ in Viking 12 months earlier when the right to strike in support of collective bargaining was disembowelled. In the latter case, ILO standards were relied on in part to justify the existence of a right to strike as part of the piped music of EC/EU law, but not to define the substance of the right, a task the ECJ arrogated to itself, which, in its own inimitable style, succeeded in developing principles fully recognisable to 19th-century English common lawyers.
28. Reference to these instruments and their jurisprudence had been made in earlier cases and in particular Sigurjonsson v Sweden (1993) 16 EHRR 462 at para 35
29. Wilson, Palmer (above) at paras 30, 35, 36, 37
30. ASLEF v UK [2007] IRLR 361 at paras 22 and 25
31. Referred to in para 149. In Wilson and Palmer, the references to the ESRC were yet more extensive, see paras 30-33 of that judgment.
32. Referred to in para 104
33. The European Trade Union Confederation has taken up this challenge and suggested that European unions should submit reports to the ILO and to the ESC machinery on Viking and Laval: circular to affiliates, July 2009
34. Demir and Baykara, para 76
35. The argument that because states were not obliged to ratify every article of the ESC, it was voluntary and therefore no guide as to what was mandatory in the ECHR was dismissed with contempt!
36. The holding is plainly correct. The ILO has always considered that its fundamental conventions apply to states irrespective of their ratification of them (eg, to the Republic of South Africa in the apartheid era) and the very fact of membership of the ILO carries with it a constitutional obligation to respect the fundamental principles. Indeed, some authors regard the fundamental principles as having arguably become part of customary international law: C. W. Jenks, The International Protection of Trade Union Freedom (London: Stevens & Sons, 1957), pp 561-2
37. P. O'Higgins, 'International Standards and British Labour Law', in R. Lewis (ed), Labour Law in Britain (Oxford: Basil Blackwell Ltd., 1986), p 577.
38. The logic adopted by the ECtHR in resting on international law standards is consistent with the common law principle of legality explained by Lord Hoffman in R v Secretary of State for the Home Dept, ex p Simms [2000] 2 AC 115 at p 131; followed by Gleeson CJ in Electrolux etc v Australian Workers Union (2004) 221 CLR 309 at p 329.
39. see para 154. The only development of note would appear to be the adoption in 2000 of the EU Charter of Fundamental Rights, which contains the familiar restatement of rights found in ILO conventions and the ESC. As the separate (concurring) opinion of Judge Zagrebelsky put it: 'I have the feeling that the Court's departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework' (para 2).
40. (1976) 1 EHRR 632
41. Language that connotes an 'upgrade' according to the concurring opinions of Judges Türmen, Fura-Sandström and Popović in the Second Section judgment in Demir, speaking of the right to collective bargaining prior to the Grand Chamber judgment (for example, in the Second Section judgment at para 40, and before that in Swedish Transport Workers v Sweden, Appn No 53507/99)
42. Schmidt and Dahlström, above, para 36
43. (1998) 25 EHRR CD 122, The English proceedings (in the Court of Appeal) were NATFHE v Blackpool & Fylde College [1994] IRLR 227.
44. Now TULRCA 1992, ss 226A(2G) and 234A(3F)
45. (2002) ECHR 2002-VI, 301, ECtHR, at p 320
46. [2002] IRLR 497
47. Para 37
48. Paras 42-43
49. Note that Art 1 of Protocol No 1 could not be prayed in aid: see the detailed rationale in Gustafsson v Sweden (1996) 22 EHRR 409 at paras 59-60 where it was held that industrial action blockading supplies delivered pursuant to private contract were outside its scope unless they were the 'product of governmental authority'
50. B. Simpson, 'Trade Disputes and Industrial Action Ballots in the Twenty-first Century' (2002) 31 ILJ 270.
51. Para 41. At para 31, it had reiterated the familiar phrase that the ability to strike is one of the most important means of being heard but there are others.
52. Paras 44-45
53. Para 46
54. Crofter Hand Woven Harris Tweed v Veitch [1942] AC 43, p 463
55. (2002) ECHR 2002-VI, 301, p 320
56. In re Certification of the Constitution of South Africa 1996 (4) SA 744, para 66
57. Application No 68959/01, judgment dated 21 April 2009
58. Whether there is in Art 11 a right to strike for wider purposes (as the ILO holds to be the case under Convention 87) is not the issue here
59. See paras 18 and 20
60. [GC] No 28541/95, ss 64-67, CEDH 1999-VIII
61. Enerji, para 32. See also Case No 32/2005, European Trade Union Confederation (ETUC), Confederation of Independent Trade Unions in Bulgaria (CITUB), Confederation of Labour 'Podkrepa' (CL 'Podkrepa') v Bulgaria.
62. See K. D. Ewing, 'Laws against Strikes Revisited', in C. Barnard, S. Deakin and G. Morris (eds), The Future of Labour Law: Liber Amicorum Sir Bob Hepple QC (Oxford: Hart Publishing, 2004), Ch 2 (on the implications of regarding the right to strike as a 'human right').
63. Application No 67336/01, 30 July 2009
64. Art 14 provides that 'The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'
65. Danilenkov, para 123
66. Application No 22943/04, 15 September 2009, judgment in French only
67. Application No 23018/04 etc, 17 July 2008, definitive judgment 17 October 2008, only in French
68. Özcan, para 17
69. Application No 30946/04, 15 September 2009
70. Kaya and Seyhan, para 12. It appears that subsequently an amnesty was granted in respect of certain disciplinary sanctions on public servants but not, it seems, in relation to warnings. The applicants were thus 'victims', para 22.
71. Application No 6615/03, 27 March 2007, definitive version of the judgment on 27 June 2007, only in French
72. Karaçay, para 28
73. citing Ezelin v France, 26 April 1991, Application No 11800/85, Series A, No 202, § 53
74. For a suggestion that the common law is not properly understood, see P. Elias, 'The Strike and Breach of Contract: A Reassessment', in K. D. Ewing, C. A. Gearty and B. A. Hepple (eds), Human Rights and Labour Law (London: Mansell, 1994), Ch 11.
75. [2009] IRLR 851
76. R. Dukes, 'The Right to Strike under UK Law: Not Much More than a Slogan?' (2010) 39 ILJ 82.
77. [2009] EWHC 2852 (QB)
78. See also British Airways plc v Unite The Union, 17 December 2009, unreported
79. There were echoes here of the remarkable performance of the Court of Appeal in the GCHQ case: see [1984] IRLR 353
80. [2009] IRLR 851, at [118]
81. In fact the latter approach (Maurice Kay LJ) reflects the literal reading of the sections, the majority justifying their construction by way of an alleged need to avoid an anomaly. The anomaly relied on was that such an explanation is plainly required by the words of the sections where there are no check-off members and there is no rational explanation as to why such an explanation would not be required if there was say, only one check-off member out of thousands. Be that as it may, the majority effectively added a gloss to the statute. This is impermissible except in circumstances that do not apply here. UNITE submitted that given that the literal reading was tenable, the provision should have been read restrictively, especially in the light of the Art 11 considerations (below).
82. At [93]
83. The purposive phrase 'to enable the employer to make plans' was removed from the provisions by amendment in 2004
84. In any event, confidence as to the reliability of strike notice figures (which in fact were essentially accurate) would have hardly have been significant in the light of the inevitable uncertainty as to the extent that those identified in the ballot/strike notices might ultimately heed any strike call-the critical matter of interest to any employer
85. See [65]
86. Maurice Kay LJ, at [120]
87. The court also discounted the fact that any delays in delivery were either not the union's fault or should have been disregarded (no duty to deal with non-urgent communication out of working hours) or were based on genuine misconceptions of the law; the delay was relatively trifling and immaterial to the interests of anyone; there was no dilatoriness on the part of the union, its officers and staff and no attempt to be other than cooperative (the obvious desire and intention of the union and its officers was to fulfil the legal requirements as they were understood). These points had no impact either on the exercise of the court's discretion to grant an injunction.
88. Metrobus, at [35], Lloyd LJ
89. In NATFHE and Schmidt, the court found that the facts disclosed no restriction
90. See ILO, Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th ed, 2006), para 526; and General Survey, 1983, at paras 200, 203.
91. Even the European Social Rights Committee has a broader view of collective bargaining than UK law in s 178
92. see ESRC, Conclusions, IV at 50: '[Having given examples,] [a]ny bargaining ... aimed at solving a problem of common interest, whatever its nature may be, should be regarded as " collective bargaining" within the meaning of Article 6'.
93. see also para 2 of the commentary to Article 6(4) in Council of Europe, Digest of the Case Law of the European Committee of Social Rights (2008)
94. See Lloyd LJ in Metrobus, at [37]; Maurice Kay LJ, at [118]
95. At [37]
96. Wilson, para 44
97. Gustaffson, para 45
98. At [104]
99. See [101]-[113], which are littered with considerations of whether the statutory restrictions are reasonable ([106], [108], [110], [112]) and onerous ([106], [109], [112])
100. In Metrobus, the failures were only peripheral, the notice was in full compliance as to numbers, categories and workplaces, only the 'explanation' was lacking; the ballot result was delivered but it was a few hours later than the statute provided for
101. Para 44
102. At [50]
103. [2009] EWHC 2852 (QB), judgment 23 October 2009. British Airways plc v Unite the Union, above, took a similar approach to Art 11.
104. By reason of the alleged failure by the union sufficiently to categorise its members in the ballot notice, the judge held that there was a serious issue to be tried that RMT had 'poor' prospects of successfully resisting at trial so providing the basis for the grant of the injunction
105. A purpose recognised in NATFHE v UK (1998) 25 EHRR 122, which records at p 123 that in the UK proceedings at first instance, Morrison J inferred that the purpose of s 226A 'was to enable employers to seek to persuade the employees who were entitled to vote to say no to the proposed action, and that a targeted approach would be more effective and less likely to provoke resentment than a lobbying of the whole work force'. The first instance judgment appears unreported, but the CA judgment is at [1994] IRLR 227, though it makes no mention of this point. The judge in the instant case relied on NURMT v London Underground Ltd [2001] IRLR 228 CA and Westminster City Council v UNISON [2001] IRLR 524 CA (on different wording of the material provisions), which do not distinguish between the two types of notice.
106. Despite TULRCA, ss 226(2D) and (2E)
107. At [4]
108. Conclusions XVII, XVIII. See below, nn. 127 and 129.
109. And note Millett LJ in London Underground Ltd v NURMT [1995] IRLR 636 at [27]: 'Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity, but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public, but for the protection of the union's own members ...'. See also at [32]. The Court of Appeal in Metrobus was disparaging of this: [40]-[41].
110. E/C 12/GBR/Q/5 at para 15. The earlier cyclical reports on the UK had found the UK in breach of Article 8(1)(d) in respect of the failure to incorporate the right to strike and to protect strikers against dismissal: E/C 12/1/Add 19 (1997) and E/C 12/1/Add/79 (2002). By General Comment No 9 of 1998, the Committee on Economic, Social and Cultural Rights has determined that the provisions of the Covenant should be enforceable in the domestic legal system of ratifying states.
111. See P. Chamberlain, 'Boys from the Blacklist', The Guardian, 21 November 2009.
112. Wilson and Palmer, para 44
113. Demir and Baykara, para 157
114. Ryanair Ltd v Labour Court and IMPACT, Appeal No 377/2005, p 16
115. Compare on the right to membership of a trade union, M. Forde, 'The Closed Shop Case' (1982) 11 ILJ 1, and V. Mantouvalou, 'Is There a Right Not to Be a Union Member? Labour Rights under the European Convention on Human Rights', in C. Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford: Hart Publishing, forthcoming) Ch 16.
116. V. Mantouvalou, 'Is There a Right Not to Be a Union Member? Labour Rights under the European Convention on Human Rights', in C. Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford: Hart Publishing, forthcoming) Ch 16.
117. TULRCA 1992, Sch A1, para 7
118. See R(NUJ) v MGN Ltd [2006] IRLR 53
119. TULRCA 1992, Sch A1, paras 27A-27F (as inserted by Employment Relations Act 2004, s 10)
120. For an excellent account of the inadequacy of these provisions, see A. Bogg, 'The Mouse that Never Roared: Unfair Practices and Union Recognition' (2009) 38 ILJ 390.
121. See previously Report of the Committee of Experts on the Application of Conventions and Recommendations (2007): http://www.ilo.org/ilolex/english/newcountryframeE.htm (CEACR: Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No 98) United Kingdom (ratification: 1950) Published: 2007).
122. See R. Dukes, 'The Statutory Recognition Procedure 1999: No Bias in Favour of Recognition?' (2008) 37 ILJ 236.
123. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009): http://www.ilo.org/ilolex/gbe/ceacr2009.htm (CEACR: Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No 98) United Kingdom (ratification: 1950) Published: 2009).
124. [2007] IRLR 361
125. See R(NUJ) v MGN Ltd, above, and Lloyd LJ in Metrobus, at [50]
126. On the right to strike generally see Lord Wedderburn, 'The Right to Strike: Is There a European Standard?', in Lord Wedderburn, Employment Rights in Britain and Europe, Selected Papers in Labour Law (London: Lawrence and Wishart, 1991)
127. K. D. Ewing, The Right to Strike (Oxford: Oxford University Press, 1991).
128. T. Novitz, International and European Protection of the Right to Strike (Oxford: Oxford University Press, 2003).
129. The Conservative party's current proposals are also put into question. They are to restrict lawful industrial action in public services generally, and on the London Underground in particular, and to require that pre-strike ballots have a majority of the balloting constituency and not just of those voting. As to the first proposal, Demir and Baykara itself shows that a blanket denial of the right to strike for public employees (rather than agents of the state, see the discussion in Urcan v Turkey, Application No 23018/04 etc, 17 July 2008, definitive judgment 17 October 2008, para 22) is not compatible with Art 11.
130. Still less would a ban on employees in privatised industries, like the London Underground, be compatible. The ILO and ESC permit only limitation of the right to strike in essential services (see Novitz, International and European Protection of the Right to Strike, above, at pp 310-3)-which does not include railways-and if strikes are banned in essential services cases there have to be 'compensatory measures' in the form of binding and independent arbitration: see, eg, the POA case (Case No 2383, 336th Report of the Committee on Freedom of Association, ILO (292nd session Governing Body, March 2005)).
131. As to the second proposal, ILO jurisprudence has condemned state requirements of a majority of those eligible to vote (rather than of those who voted). The Conservative proposal to repeal the HRA may simply have the effect that convention cases end up in the Strasbourg court more quickly.
132. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009): http://www.ilo.org/ilolex/gbe/ceacr2009.htm (CEACR: Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) United Kingdom (ratification: 1949) Published: 2009).
133. See Council of Europe, European Committee of Social Rights, Conclusions XVIII, p 10: www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/UKXVIII1_en.pdf
134. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009), above
135. See Council of Europe, European Committee of Social Rights, Conclusions XVII, pp 130-2.www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/UKXVII1_en.pdf
136. Past such cases would have been the dispute at Friction Dynamics (see J. Hendy and K. D. Ewing, IER Submission to the Joint Committee on Human Rights Inquiry into the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights (at http://www.ier.org.uk/system/files/strike.pdf).
137. Gate Gourmet dispute at London Heathrow Airport (see J. Hendy and G. Gall, 'British Trade Union Rights Today and the Trade Union Freedom Bill', in K. D. Ewing (ed), The Right to Strike: From the Trade Disputes Act 1906 to the Trade Union Freedom Bill 2006 (London: IER, 2006).
138. TULRCA, s 224
139. In seeming to regard secondary action as permissible in Gustafsson v Sweden (1996) 22 EHRR 409 at para 53
140. Conclusions XVIII, above, p 10
141. The annual Employment Tribunal and EAT Statistics 2007-2008 show that reinstatement or reengagement orders are made in 0.1% of unfair dismissal cases heard. The percentage in successful strikers' cases is unknown but is presumably as close to zero as makes no difference.
142. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009), above
143. See the cyclical reports on the UK: E/C12/1/Add 19 (4 December 1997), para 23, and E/C 12/1/Add 79 (5 June 2002), para 34
144. Application No 30946/04, 15 September 2009
145. Application No 6615/03, 27 March 2007, definitive version of the judgment on 27 June 2007
146. For a legal perspective on the Gate Gourmet dispute see J. Hendy and G. Gall, above. The dispute also gave rise to an injunction against picketing in relation to which Art 11 was cited briefly: Gate Gourmet London Ltd v TGWU [2005] IRLR 881, hinting at the possibility of an argument for the future based on Pepsi-Cola Canada Beverages (West) Ltd RWDSU v Local 558 2002 SCC 8, where the Canadian Supreme Court held that there was nothing illegal or unlawful about secondary picketing and that to find otherwise would have been contrary to freedom of expression guaranteed by the Canadian Charter. There was no legal basis consistent with freedom of expression to distinguish primary and secondary picketing: both were exercises in freedom of expression and both lawful, unless accompanied by unlawful conduct.
147. [2009] IRLR 807
148. [1976] IRLR 266
149. At [38]. The circumstances referred to appear to be that the particular claimant did not attend for work because he supported the strike and was sacked when re-attending subsequently. Whether or not this amounted to gross misconduct so as to amount to a repudiation of the contract was not the issue (at [36]), the question was whether the failure to attend work by participating in a strike justified dismissal (in accordance with s 98(4) Employment Rights Act 1996). From the IRLR report it does not seem that either Demir and Baykara or the ILO, ESC or International Covenant on Economic Social and Cultural Rights material was cited to the EAT. The EAT hearing took place on 2-3 April and judgment was handed down on 17 July 2009. Enerji Yapi-Yol post-dated the argument and Kaya and Sehan post-dated the judgment.
150. Conclusions XVII, above
151. Conclusions XVIII, above
152. Conclusions XVII, above
153. See Case C-438/05, FSU v Viking Line, 11 December 2007, [2008] IRLR 143
154. Case C-341/05, Laval un Partneri v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet, 18 December 2007, [2008] IRLR 160.
155. Case C-346/06, Rüffert, [2008] IRLR 467
156. Case-319/06, Commission v Luxembourg, [2008] IRLR 388
157. See, eg, the late and sadly missed B. Bercusson, 'Europe at the Crossroads' (2008) 8 (2) Federation News pp 25-7
158. R. Eklund, 'The Laval Case' (2006) 35 ILJ 202.
159. A. C. L. Davies, 'One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ' (2008) 37 ILJ 125
160. P. Davies (2008) 37 ILJ 293.
161. C. Barnard, 'The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law' (2009) 38 ILJ 122.
162. C. Barnard, '"British Jobs for British Workers": The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market' (2009) 38 ILJ 245.
163. See also B. Bercusson, European Labour Law, 2nd ed (Cambridge: Cambridge University Press, 2009), Ch 21.
164. Viking, para 81
165. Directive 96/71/EC. The definition of a universally applicable agreement is set out in Article 3(8) to mean 'collective agreements or arbitration awards which must be observed by all undertakings in the geographical area and in the profession or industry concerned'. It is further provided that 'in the absence of a system for declaring collective agreements or arbitration awards to be of universal application within the meaning of the first subparagraph, Member States may, if they so decide, base themselves on: collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned, and/or collective agreements which have been concluded by the most representative employers' and labour organizations at national level and which are applied throughout national territory, provided that their application to the undertakings referred to in Art 1(1) ensures equality of treatment on matters listed in the first subparagraph of paragraph 1 of this Article between those undertakings and the other undertakings referred to in this subparagraph which are in a similar position'.
166. Though it may be argued that in countries (such as the UK) where some collective agreements are 'widely applicable' in practice, there may now be a duty on member states to make these agreements universally applicable within the meaning of Art 3(8), in order to comply with their duty under ILO Convention 98, Art 4 to 'encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements'
167. See K. D. Ewing and John Hendy (eds.), The New Spectre Haunting Europe (London: IER, 2009).
168. For a good treatment, see T. Novitz and P. Syrpis, 'Giving with One Hand and Taking with the Other: Protection of Workers' Human Rights in the European Union', in C. Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford: Hart Publishing, forthcoming), Ch 17.
169. Taff Vale Railway Co Ltd v Amalgamated Society of Railway Servants [1901] AC 426, holding trade unions liable at common law for losses caused by industrial action, for which relief was granted by way of statutory immunity in the Trade Disputes Act 1906. It has not proved to be possible to introduce an immunity in EU law. See Ewing and Hendy (eds), above.
170. It is widely believed that 'Viking and Laval do open up the potential for such claims'-K. Apps, 'Damages Claims against Trade Unions after Viking and Laval' (2009) 34 European Law Review 141, p 142.
171. D. Ornstein, 'Laval, Viking and the Limited Right to Strike', 15 ELA Briefing No 9, 145.
172. That is to say, countries that have either ratified the Collective Complaints Protocol or the Revised Social Charter. Such countries do not include the UK. For an important application of the procedure, see Case No 32/2005, European Trade Union Confederation (ETUC), Confederation of Independent Trade Unions in Bulgaria (CITUB), Confederation of Labour 'Podkrepa' (CL 'Podkrepa') v Bulgaria.
173. See now Case No 59/2009 European Trade Union Confederation (ETUC)/Centrale Générale des Syndicats Libéraux de Belgique (CGSLB)/Confédération des Syndicats chrétiens de Belgique (CSC)/Fédération Générale du Travail de Belgique (FGTB) v Belgium, lodged on 22 June 2009, alleging that the situation in Belgium is not in conformity with the rights laid down in Article 6(4) (right to strike) of the Revised Charter
174. The applicants believe that judicial intervention in social conflicts in Belgium, in particular concerning restrictions imposed on the action of picket lines, violates this provision. For a full list of cases, see http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp.
175. The matter could equally be raised by a national trade union confederation as part of its comment on its government's regular reporting under the ILO Constitution
176. And it would be implausible to believe that the ILO supervisory bodies would accept that the right to bargain collectively and the right to take collective action may be subordinate to a higher freedom of business to set up establishments or to provide services in other states. If such subordination were permissible there would be no logical reason why those trade union rights should not be subordinated to the freedom of business to establish or provide services within a state.
177. Treaty of European Union, Article 6
178. Protocol on the Application of the Charter of Fundamental Rights to Poland and to the United Kingdom. See n. 16 above. On this so called opt out, see P. Syrpis, 'The Treaty of Lisbon: Much Ado ... But About What?' (2008) 37 ILJ 219.
179. See also the discussion in House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment, HL Paper 62-I (2007-08), paras 5.84-5.111.
180. Bosphorus Hava Yollari Turizm v Ireland (2006) 42 EHRR 1
181. C. Costello, 'The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe' (2006) 6 HRLR 87.
182. Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 12 June 2003, para 77
183. On which see Declaration 2 introduced by the Treaty of Lisbon, in which the member states appear to have concern about the implications of the ECHR for the EU, it being agreed that EU accession to the ECHR 'should be arranged in such a way as to preserve the specific features of Union law', noting 'the existence of a regular dialogue between the [ECJ] and the [ECtHR]', and that 'such dialogue could be reinforced when the Union accedes to that Convention'. Apart from the fact that this is a real dialogue rather than the mystical dialogue between judges and politicians now alluded to by some constitutional scholars, this reveals a certain nervousness on the part of the EU, as does Protocol 8, Art 2 (accession to the ECHR not to 'affect the competences of the Union or the powers of its institutions' (emphasis added)). Quaere whether this dialogue will be in secret or in public.
184. J. Fairhurst, Law of the European Union (Harlow: Pearson, 7th. ed., 2009), pp 69-70.
185. The effect of all of these developments may be to shrink the ECJ's room for manoeuvre to one in which it may ask in any case whether the collective action restricting an employer's economic freedoms is consistent with ILO standards. Like the national courts in those countries where convention rights have been fully incorporated (Ireland, Sweden and the UK), the role of the ECJ on human rights questions may be simply to act as a cipher for the standards established by the ECtHR, which in turn has allowed itself to be guided by the ILO.
186. See TFEU, Art 218: any decision concluding accession will first need the agreement of the Council (acting unanimously) as well as the consent of the Parliament, before being approved by all member states 'in accordance with their respective constitutional requirements'
187. This section draws from K. D. Ewing and John Hendy (eds), The New Spectre Haunting Europe (London: IER, 2009), Ch 6.
188. Prior to the Open Skies Treaty, there were significant regulatory obstacles to an airline based in one EU state flying passenger operations from another EU state to the USA
189. On the injunction procedure in English law, see Lord Wedderburn, 'The Injunction and the Sovereignty of Parliament' (1989) 23 Law Teacher 4, also in Lord Wedderburn, Employment Rights in Britain and Europe, above
190. BA estimated that a one-day strike by BALPA pilots would cost it £100 million although BALPA disputed this-the real cost was never determined but was plainly very substantial
191. Financial Times, 10-12 May 2008
192. A strike ballot (TULRCA 1992, s 234) has only four weeks of validity (save where extended by the court for up to a further eight weeks); hence, the January ballot would have expired and a re-ballot would have been necessary if there was to be strike action
193. Unless the confidentiality arises from obtaining legal advice, state security or other specific exceptions
194. Though this was thought by BALPA to be a weak argument
195. Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989
196. Case C-432/05 Unibet [2007] ECR I-2271
197. In order to establish tort liability against a state in community law, it would be necessary to show a 'sufficiently serious breach' under the principles summarised by Lord Clyde in R (Secretary of State for Transport) ex p Factortame (No 5) [2000] 1 AC 524, pp 555-6
198. TFEU, Art 267 (ex EC Treaty, Art 234)
199. V. Leary, 'The Paradox of Workers' Rights as Human Rights', in L. Compa and S. Diamond (eds), Human Rights, Labor Rights and International Trade (Philadelphia: University of Pennslyvania Press, 2003), p 22.
200. For an important analysis and collection of essays along these lines, see C. Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford: Hart Publishing, forthcoming).
201. See n. 13 above.
202. Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board Annual Lecture, 19 March 2009: 'If one accepts, as I have so far argued, that human rights are universal in abstraction but national in application, it is not easy to see how in principle an international court was going to perform this function of deciding individual cases, still less why the Strasbourg court was thought a suitable body to do so'
203. The difficult question for trade unions-which members may begin to ask with growing frequency-is why do they continue to support financially a process that so conspicuously delivers so little? In the case of the UK, British trade unions have contributed almost £80 million since 2001 (and more than £100 million since 1997, full details on the Electoral Commission's web site), for trade union laws that fall short of minimum international standards (though the altruistic will argue that trade union political action is not simply an instrumental transaction in which power is sought only for favourable laws on specific questions)
204. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009): http://www.ilo.org/ilolex/gbe/ceacr2009.htm (CEACR: Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) Turkey (ratification: 1993) Published: 2009).
205. Report of the Committee of Experts on the Application of Conventions and Recommendations (2009): http://www.ilo.org/ilolex/gbe/ceacr2009.htm (CEACR: Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No 98) Turkey (ratification: 1952) Published: 2009).
206. For an account of the trial, see D. Blackburn, 'Teachers on Trial' (2009) 16.5 International Union Rights 8.