Article 11 Freedom of Association
Article 11: freedom of association (including the right to form and join trade unions)
Demir and Baykara v Turkey [2009] IRLR 766 (ECtHR) – Affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end. There is an inherent right to collective bargaining protected by Article 11 ECHR, within the right to freedom of association
Demir was a member, and Baykara the president of the Turkish Trade Union for civil servants. Union entered into a 2 year collective agreement in 1993 but the employer failed to comply with the provisions
Won claim in District Court but Court of Cassation quashed the decision – right to join a union, BUT the union itself had “no authority to enter into collective agreements as the law stood”
Back to district Court – D + B did have a right to collective agreements, as this accorded with ILO conventions, ratified by Turkey. Court of Cassation overturned this
Application to ECtHR – alleging breach of freedom of association under Article 11 ECHR and protection against discrimination under Article 14 ECHR. Held Art 11 violated, no need to examine Art 14. Referred to Grand Chamber
Held: Unanimously held there had been a disproportionate and unjustified interference with the right to freedom of association. States have a very limited margin of appreciation with regards to derogations from Art 11
POINT: Tension with ECJ decisions in The Rosella and Laval – there is a qualified right to strike. However this can only be exercised where it does not disproportionately affected the EU business right to freedom of establishment or providing services
Metrobus Ltd v Unite the Union [2009] IRLR 851 (CA)
Where an employer sought an injunction to restrain a strike, a union’s failure to comply with its obligation under s 231A of the Trade Union and Labour Relations (Consolidation) Act 1992 to inform the employer as soon as reasonably practicable of the result of the ballot could justify the grant of
Demir and Baykara v Turkey [2009] IRLR 766 (ECtHR) – Affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end. There is an inherent right to collective bargaining protected by Article 11 ECHR, within the right to freedom of association
Demir was a member, and Baykara the president of the Turkish Trade Union for civil servants. Union entered into a 2 year collective agreement in 1993 but the employer failed to comply with the provisions
Won claim in District Court but Court of Cassation quashed the decision – right to join a union, BUT the union itself had “no authority to enter into collective agreements as the law stood”
Back to district Court – D + B did have a right to collective agreements, as this accorded with ILO conventions, ratified by Turkey. Court of Cassation overturned this
Application to ECtHR – alleging breach of freedom of association under Article 11 ECHR and protection against discrimination under Article 14 ECHR. Held Art 11 violated, no need to examine Art 14. Referred to Grand Chamber
Held: Unanimously held there had been a disproportionate and unjustified interference with the right to freedom of association. States have a very limited margin of appreciation with regards to derogations from Art 11
POINT: Tension with ECJ decisions in The Rosella and Laval – there is a qualified right to strike. However this can only be exercised where it does not disproportionately affected the EU business right to freedom of establishment or providing services
Metrobus Ltd v Unite the Union [2009] IRLR 851 (CA)
Where an employer sought an injunction to restrain a strike, a union’s failure to comply with its obligation under s 231A of the Trade Union and Labour Relations (Consolidation) Act 1992 to inform the employer as soon as reasonably practicable of the result of the ballot could justify the grant of