Associations and workplace democracy

The question of a human right to workplace voice and democracy will be addressed by first looking at Article 11 of the ECHR. The provision reads as follows:

• 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
• 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(a) Human rights as a sword: liberal democracy and workers’ participation

From early on in its case law, the Court had to consider the components of the right to associate in the context of trade unionism, in order to examine the positive elements of trade union freedom. This aspect of the case law for workers’ voice can be called the function of human rights law as a sword, which I contrast to its function as a shield that will be explored in the section that follows.

Given the explicit protection of trade unions in Article 11, the Court always viewed them as essential institutions in a liberal democracy.^{[1] [2]} What was less clear, though, was what precise avenues of voice trade unions had available to them under human rights law, in order to have an effective right to be heard. In one of the first collective labour law cases, the National Union of Belgian Police v Belgium,⁴¹ the ECtHR was asked to interpret the phrase ‘for the protection of his interests’ in the first paragraph of Article 11 against the background of unionization. Is it redundant or does it serve a purpose in the Convention? The ECtHR said:

These words, clearly denoting purpose, show that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. In the opinion of the Court, it follows that the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11 para. 1 (art. 11-1) certainly leaves each State a free choice of the means to be used towards this end. While consultation is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11 (art. 11), to strive for the protection of their members’ interests.⁴²

The right to be heard, which the Court recognized in the National Union of Belgian Police, did not mean that the applicant trade union should be recognized for the purposes of consultation. The approach in the National Union of Belgian Police was typical of the way in which the Court interpreted workplace voice, and was re-iterated later on. In Schmidt and Dahlstrom v Sweden,⁴³ it ruled that the right to strike was one of the means by which unions could strive for the protection of their interests, but it was not an essential avenue of voice.⁴⁴ Finally, in Swedish Engine Drivers’ Union,⁴⁵ the Swedish government refused to enter into a collective agreement with the applicant union, and entered into an agreement with a larger and more representative union. The Court held that Article 11 does not guarantee any particular treatment for trade unions.⁴⁶ It implies a right to be heard, but allows the contracting states a ‘free choice of the means to be used towards this end’.⁴⁷ In past case law, in other words, trade unions were viewed as important institutions of voice, but no precise avenues of voice (beyond the general requirement that the trade union be heard) were recognized as essential.

The approach of the Court in the early jurisprudence reflected a limited understanding of the role of workers’ associations for workplace voice, and was criticized to this effect.⁴⁸ The explicit protection of the right to form and join a trade union in the ECHR was probably founded on the understanding that there is inequality of power between the employer and the worker, and human rights law should be addressing this inequality. In that sense, the model of democracy underlying the cases was a liberal model that values the right to equal participation in decision-making. Yet because of the limited avenues of voice supported, this model was neither clearly endorsed nor developed.

In recent years the Court has recognized that the right to be heard of workers and their associations requires the protection of collective bargaining as an essential component of Article 11. In Wilson, for instance, it established that a trade union has a right to seek to pressurize the employer to hear its voice in one way or another.⁴⁹ The landmark decision in Demir and Baykara in 2008 explained that workers’ voice is a developing concept in the Convention, which is in itself a living instrument.⁵⁰ Against this background, the right to collective bargaining emerged as an essential element of Article 11.⁵¹ In Enerji Yapi-Yol Sen⁵² and other case law that followed,⁵³ the Court ruled that ^{[3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13]}

the right to strike is also an essential component of Article 11 of the Convention. While it said that this is not an absolute right and that it can be restricted in certain circumstances, it found that a general ban on strikes in the public sector violated the ECHR.

It can be said that the approach of the ECtHR in recent Article 11 cases is grounded on the belief that a key function of trade unions is to counterbalance the inequality of bargaining power in the workplace, a key justification of labour law.^[14] The inequality of bargaining power is not stated openly in decisions of the Court as the organizing principle of associational activity under Article 11. Yet as a liberal egalitarian account of democracy underlies ECHR case law,^[15] similarly such an account can be said to justify recent Article 11 cases, which recognize a richer content to the provision than in the past in order to make the associational rights of workers effective.^[16]

In what sense is equality a key value here? It was said earlier that conceptions of political equality range from republican models that seek to encourage or ensure active participation in the political decision-making process, to neutrality-based models that aim to make fair the background conditions of individual choice within a market economy. Similarly, conceptions of equality in the workplace range from strong participatory models that seek to ensure active worker participation in the running of the business to weaker participatory models that seek to counter the unfairness that can lead to exploitation in an unregulated employment market. It is this latter vision of equality that can be said to underlie the decisions of the Court. In the jurisprudence, trade unions have a right to represent workers, a right to collective bargaining and strike, but workers themselves do not have a right to direct participation in running the enterprise. Even though the approach of the ECtHR falls short of Dahl’s vision of self-government at work, still it can be grounded on the idea of equality that requires the protection of at least some procedural rights to participate that can protect workers from exploitation.

• [1] The Court has not this far examined the right to contest outside the union context, which Bogg andEstlund have developed. See Alan Bogg and Cynthia Estlund, ‘Freedom of Association and the Right toContest: Getting Back to Basics’, this volume.
• [2] National Union of Belgian Police v Belgium A19; 1 EHRR 578. 42 Para. 39 (n 41), emphasis added.
• [3] Schmidt and Dahlstrom v Sweden A21; 1 EHRR 637. 44 Schmidt and Dahlstrom, para. 36 (n 43).
• [4] 45 Swedish Engine Drivers’ Union v Sweden, App No 5614/72, Judgment of 6 February 1976.
• [5] 46 Swedish Engine Drivers’ Union v Sweden, para. 39 (n 45).
• [6] 47 Swedish Engine Drivers’ Union v Sweden, para. 39 (n 45).
• [7] 48 See Keith Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 Industrial Law Journal (ILJ)275; Novitz 238 (n 25); Lord Wedderburn, ‘Freedom of Association or Right to Organise? The Common
• [8] Law and International Sources’ in Lord Wedderburn (ed.), Employment Rights in Britain and Europe(London: Lawrence and Wishart, 1991) 138 at 144.
• [9] Wilson, National Union of Journalists and Others v UK, App Nos 30668/96, 30671/96 and 30678/96,Judgment of 2 July 2002, para. 44.
• [10] Demir and Baykara v Turkey, App No 34503/97, Grand Chamber Judgment of 12 November 2008, paras145-146. For analysis, see Keith Ewing and John Hendy, ‘The Dramatic Implications of Demir and Baykara’(2010) 39 ILJ 2. On the character of the ECHR as a living instrument, see George Letsas, ‘The ECHR as aLiving Instrument: its Meaning and its Legitimacy’ in Ulfstein, Follesdal, and Peters (eds), ConstitutingEurope—The European Court of Human Rights in a National, European and Global Context (CUP, 2013) 106.
• [11] Demir and Baykara, para. 147 (n 50).
• [12] Enerji Yapi-Yol Sen v Turkey, App No 68959/01, Judgment of 21 April 2009.
• [13] See, for instance, Danilenkov v Russia, App No 7336/01, Judgment of 30 July 2009.
• [14] Paul Davies and Mark Freedland, Kahn-Freund’s Labour and the Law (Stevens, 1983) 18; Guy Mundlak,‘The Third Function of Labour Law: Distributing Labour Market Opportunities among Workers’ in GuyDavidov and Brian Langille (eds), The Idea of Labour Law (OUP, 2011) 315.
• [15] George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP, 2009);Virginia Mantouvalou, ‘Is there a Human Right Not to Be a Trade Union Member?’ in Colin Fenwickand Tonia Novitz (eds), Human Rights at Work—Perspectives on Law and Regulation (Hart Publishing,2010) 439.
• [16] See Demir and Baykara, para. 144 (n 50).