ILO Convention;¹ Work of international supervisory bodies² 

Strike action/ Secondary action/ Collective bargaining/ Freedom of association/ Use of international law as a guide for interpreting European human rights law

In this case, the National Union of Rail, Maritime and Transport Workers had applied to the European Court of Human Rights to decide whether the ballot procedure for strike action and the prohibition of secondary strike action as defined in United Kingdom legislation placed excessive restrictions on the freedom of association enshrined in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The facts leading to the case related to two collective bargaining processes in which the trade union had participated. In the first case, during a collective bargaining process with the enterprise EDF Energy Powerlink Ltd, the union decided to hold a ballot to decide whether to call for strike action. To this end, the union notified the enterprise that engineers and technicians would be taking part in the ballot. The enterprise requested clarification of the types of worker included in the group “technicians”. Since the union refused to supply this clarification, the enterprise obtained an injunction to restrain the ballot process until the information requested had been provided. Once the union had submitted this information, the strike was held and resulted in improved wages. The second case involved a strike against the enterprise Hydrex with the aim of maintaining the original contract terms and conditions of 20 workers who had been transferred in from another company. Since the number of union members working for Hydrex was very low, the strike action did not have a great impact on the enterprise’s operations, and given that it was not legally possible to call secondary action, the 20 workers had no choice but to accept the contract terms and conditions offered by the enterprise.

The Court rejected the claimant’s complaint regarding the industrial action’s ballot process based on the fact that a strike had been held against EDF a few months after the legal injunction was granted, demonstrating that the ballot process was not an excessive restriction to the freedom of association enshrined in Article 11 of the European Convention on Human Rights.

On the other hand, in relation to the case on secondary strike action, the Court ruled that the prohibition of such action constituted an interference in the exercise of freedom of association as set out in Article 11 of the European Convention. However, it deemed it necessary to establish whether this restriction was within the limits established in Article 11 of the Convention. The Court began its analysis by stating that:

“[S]econdary action is recognised and protected as a part of trade union freedom under ILO Convention No. 87 and the European Social Charter. [...] It may well be that, by its nature, secondary industrial action constitutes an accessory rather than a core aspect of trade union freedom […]”.³

The Court then indicated that the ban on secondary action was owing to a legitimate interest in protecting the rights and freedoms of citizens in general, and the fact that it had remained intact for more than twenty years proved that the ban was the result of a democratic consensus. However, the Court also said that the European Committee of Social Rights had also repeatedly criticised the United Kingdom for its position on secondary action. Additionally, it pointed out that this position had been subject to much criticism on the part of the ILO Committee of Experts on the Application of Conventions and Recommendations. Nevertheless, the Court observed that the Recommendations issued by the Committee of Experts were not mandatory.

Having emphasized the fact that the Court’s competence was strictly limited to the European Convention on Human Rights, the Court concluded that the United Kingdom had not breached Article 11 of the European Convention on Human Rights.