31 May 2019

By Tonia Novitz, Professor of Labour Law, University of Bristol

Freedom of association is a foundational principle of the International Labour Organisation (ILO). Not only is this principle recognised in the ILO Constitution, first established as Part XIII of the Treaty of Versailles, a century ago; but it is integral to the tripartite structure of the ILO, which relies on collective worker and employer organisations for its very operation. From the 1950s onwards, ILO supervisory bodies such as the Governing Body Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR) have asserted that freedom of association also entails a right to strike. The CEACR has considered that the entitlement to organise and take industrial action is implicit in ILO Convention No. 87 on Freedom of Association and the Protection of the Right to Organise, which guarantees to trade unions the entitlement to organise their own activities. The CFA has considered the right to strike so vital to freedom of association that it is constitutionally guaranteed, regardless of ratification of ILO Convention No. 87 (or any other ILO Convention). On this basis, these committees have developed an extensive body of jurisprudence regarding protection of the right to strike and the legitimate restrictions that may be placed on its exercise – for it is not an unlimited entitlement, but must be subject to other aspects of private and public interest. That state of affairs continued for more than 50 years, until the employers’ group walked out of the ILO Conference Committee on the Application of Standards, objecting to protection of the right to strike under ILO Convention No. 87. This was a blow to the tripartite cooperation which had long been a feature of the ILO (see La Hovary, 2013 and Bellace, 2014), and to the potential influence of ILO standards regarding the right to strike in human rights litigation internationally, including before the European Court of Human Rights.

In litigation in various contexts – in constitutional litigation before the Canadian Supreme Court with respect to the Canadian Charter of Rights and Freedoms, and in the collective complaints procedure before the European Committee of Social Rights (ECSR) under the European Social Charter – the International Organisation of Employers cited the 2012 employers’ walkout as indicative of an end to ILO jurisprudence of the right to strike and its relevance. This was hardly surprising as the extensive reach of ILO CEACR findings on ILO Convention No. 87 was given as a reason for their action at the time. However, in both the cases in question (Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4 in the Canadian Supreme Court and Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, Complaint No. 85/2012, Decision on admissibility and on the merits before the ECSR, 3 July 2013), the employers’ attempts to rely on such an argument were unsuccessful.

The judicial forum apparently worst hit was the European Court of Human Rights. In Appn no 31045/10 National Union of Rail, Maritime and Transport Workers v UK (2014) the Court referred to the walkout, suggesting that it did not undermine existing ILO norms. Yet, at the same time the Court reached the conclusion in the instant case that the claim for workers regarding access to secondary action was not a breach of the protection of freedom of association under Article 11 of the European Convention on Human Rights, explicitly departing from established ILO jurisprudence in this respect. Further, the judgment stated that: ‘The Court does not … discern any need in the present case to determine whether the taking of industrial action should now be accorded the status of an essential element of the Article 11 [freedom of association] guarantee’ under the European Convention on Human Rights. This was a far cry from Chamber judgments in other cases, identified by Keith Ewing and John Hendy QC, which had repeatedly recognised that a right to strike was protected under Article 11 and therefore protected individual strikers, notably in cases concerning Turkey. One anomalous judgment in Appn no 4241/03 Trofimchuk v Ukraine seemed at odds with a general trend towards protection (Dorssemont, 2013). In 2015, the ILO brokered a truce between the employers’ and workers’ group (endorsed by governments), recognising the right to strike, although not settling the dispute as to interpretation of ILO Convention No. 87. So, the question was to what extent this might restore the earlier influence of ILO jurisprudence on the right to strike.

A number of cases have not been very promising. For example, in May 2018, the Chamber judgment in Appn no 2451/16, Association of Academics v Iceland upheld compulsory arbitration to end potential industrial action in the health sector, while making no mention of ILO standards, which was curious given that these might well have ultimately supported the conclusion reached. Moreover, that judgment drew heavily on the controversial findings of the ECtHR in National Union of Rail, Maritime and Transport Workers v UK that a right to strike may be protected under Article 11 but is not an essential element of freedom of association. However, a differently constituted Chamber in Appn no 44873/09, Ognevenko v Russia, issued on 20 November 2018, approached these issues in another way.

Ognevenko is significant insofar as it makes direct reference to ILO standards in determining that Article 11 freedom of association protections should extend to a train driver prohibited from taking industrial action on the basis that railway transport was an essential service. In finding a breach of Article 11 of the ECHR, the majority judgment made extensive reference to ‘ILO principles concerning the right to strike’, which state that railway transport is not an essential service unless exceptional circumstances arise.

The extent of reference to ILO standards is itself impressive. For example, the Chamber cited the 5th revision of the CFA Digest of Decisions (a Compilation, which has since the case was heard been published in a 6th edition) and CFA case law regarding Russia (paras 19-21). The reiteration of the CFA findings by the CEACR was also given explicit attention, namely ‘that the right to strike may be restricted only in respect of public servants exercising authority in the name of the State and in essential services in the strict sense of the term – that is to say services the interruption of which would endanger the life, personal safety or health of the whole or part of the population’ (para. 22). Further, the Chamber also cited explicitly the reminder issued by the CEACR to Russia that ‘railway transport did not constitute an essential service in the strict sense of the term’ and that the CEACR ‘continues to request Russia to ensure that railway workers can exercise the right to strike’ (para. 23). It was on this basis that the Chamber found that, while the right to strike is not absolute, exceptions must be ‘construed strictly’ not impairing ‘the very essence of the right to organise’ (paras 58-59). Moreover, the refusal of Russia to provide evidence as to any special circumstances which rendered rail transport in Russia essential, sealed the nail into the coffin. Accordingly, Russian legislation which restricted the train driver Ognevenko’s ability to take industrial action, ultimately leading to his dismissal, was not considered ‘necessary in a democratic society’ but rather disproportionate. Pecuniary and non-pecuniary damages were therefore awarded in addition to costs and expenses.

It is possible that the outcome in Ognevenko can be understood as more concerned with the individual rights of the striker, rather than collective protection of a union (which was in issue in RMT and Association of Academics, where the Court has preferred a broad margin of appreciation). However, this is not an inevitable dichotomy as demonstrated by a Croatian case, Appn no. 36701/09 Hrvatski liječnički sindikat v. Croatia, where a stronger claim was made for the importance of a right to strike. Certainly, in Ognevenko, the blanket ban on strikes by railway workers can be considered akin to the total Turkish prohibition on civil servant collective bargaining and industrial action, creating palpable personal injustice to the individuals affected. On this basis, the majority judgment emphasised previous findings that the right to strike was ‘one of the most important means’ by which trade unions and their members could defend their interests and is accordingly protected under Article 11 ECHR (paras 56 – 57). The dismissal (a disciplinary sanction combined with an earlier transgression) therefore amounted to ‘a severe penalty’ (para. 23), which constituted an interference with Ognevenko’s rights as ‘guaranteed’ by Article 11 (para. 62). This interference was ‘prescribed by law’, but not necessary in a democratic society under Article 11(2) as was evident from ILO and European Social Charter supervisory findings that railway transport is not an essential service, the withdrawal of which could endanger the life or health of (a part of) the population (para. 72). Even if it were an essential service, it would need to be shown that this particular railway driver’s role was essential, given the stringency of the protection derived from Article 11 (para. 73). Nor was any suitable alternative to an all-out ban considered by the state, when a ‘minimum service’ could have provided an alternative form of restriction, indicating disproportionate interference (paras 77-80). The only opposition came from the Russian Judge Dedov, staunchly defending his own national position with reference to the wider margin of appreciation given in the RMT judgment (Dissenting Opinion, paras 19 and 20), but he failed to persuade the other members of the Chamber.

It may also have been influential that in the Association of Academics case (as demonstrated by paras 10 – 18), the applicant had the capacity to challenge the Icelandic legislation imposing arbitration before the Icelandic courts. The District Court of Reykjavik considered its legality with reference to Article 74 of the Icelandic Constitution alongside Iceland’s international obligations, including ILO Conventions. When the District Court found for the Icelandic state, appeal was made to the Supreme Court which upheld that judgment. The European Court of Human Rights understandably considered it pertinent that the Supreme Court ‘assessed the necessity of the impugned measures’ and did so by evaluating not only the number of meetings and impasse between the parties, but also ‘the situation in the hospitals and health care services … supported by statistical data’ (para. 30). By way of contrast, in Ognevenko, legislation prohibiting participation in industrial action on public railways had been applied uncritically by Russian courts in upholding the applicant’s dismissal (para. 40). The national courts ‘had to confine their analysis to formal compliance with the relevant Russian laws and consequently could not balance the applicant’s freedom of association with competing public interests’ (para. 82). This limitation combined with the failure of the Russian state to defend its policies seems to have contributed to the finding that there had been a breach of Article 11. It will also be interesting to see in future cases what influence internal constitutional review may have when compared with the consensus reached in international labour law through ILO standard setting and supervision. Arguably, these need not and should not be in tension when it comes to protection of freedom of association under Article 11. Ideally, both national courts and the European Court of Human Rights would make reference to ILO standards, and it is only where there are serious failings at the domestic level (as in Ognevenko) that the European Court of Human Rights will need to intervene. At present, the UK remains in breach of ILO Convention No. 87 in its treatment of ‘important public services’ (including railways) as has already been the subject of concern expressed by the ILO CEACR as recently as 2018. The experience of application of a wide margin of appreciation in RMT v UK may however make unions wary of making a claim to the European Court of Human Rights. Whether there is any future challenge from the UK may well depend on whether Ognevenko is followed by future Chambers of the Court.

For further analysis of these cases, see:

Comparative Labour Law and Policy Journal, Dispatch No. 15 – Iceland & Russia – “To Protect the Right to Strike or Not? The Question Before the European Court of Human Rights in app no 2451/16 Association of Academics v Iceland and app no 44873/09 Ognevenko v Russia,” by Tonia Novitz March 29, 2019

This article was originally published on the UK Labour Law Blog