Workers' Rights and Access to European Courts: Reflections on RMT Case

1. CGIL Conference on “Workers Rights and Workers’ Rights and access to the European courts and Charters” 27 January 2015The protection of trade union rights before the European Court of Human Rights; reflections on the RMT case John Hendy QC Barrister, Old Square Chambers, London Honorary Professor, University College, London President, International centre for Trade Union Rights Chair, Institute of Employment Rights 1 19 January 2015

2. RMT v UK(31045/10) ECtHR (4th Section), 08 April 2014, [2014] IRLR 467, 37 BHRC 145 The EDF case – Injunction to stop strike on basis that union provided insufficient categorisation of members for ballot notice to employer. Union forced to delay two months in order to establish precise categories, serve fresh notice and call later strike. Dispute then settled by collective agreement. ECtHR held: manifestly inadmissible because able to call subsequent strike [§45. But: • Breach of Article 6: no notice of argument; • Requirement to seek out categories not ‘prescribed by law’ (and held not to be so by English Court of Appeal in RMT v Serco, ASLEF v Ldon etc Rly [2011] ICR 848; • Union forced to delay strike and pay legal costs to employer of £80,000+ 19 January 2015 2

3. The Hydrex case – large employer (Jarvis) hived off part of operation to smaller employer (Hydrex). Workers’ terms preserved for two years then Hydrex proposes wage cut. RMT calls strike of Hydrex members, negligible effect on Hydrex. RMT wishes to call on members employed by Jarvis but barred by UK’s complete ban on ‘secondary’ action. ECtHR holds: Art.11(1): • Art.11 protects right to strike[§87]; including right to secondary industrial action [§77]; • But no need to determine if right to strike is an ‘essential element’ of TU freedom under Art.11 [§84] – though here the purpose is collective bargaining (Demir and Baykara) (and C/B without the R to S is no more than collective begging); • Secondary action is not a ‘core aspect’ of TU freedom under Art.11 [§87-88] – but TU freedom must be defined by TU solidarity not fortuitous employer structure; this especially so in relation to C/B which (in other cases) may involve multiple employers. 19 January 2015 3

4. Art.11(2) (‘necessary in a democratic society’): • Law and practice of other European States: UK ‘at most restrictive end of a spectrum of national regulatory approaches’ [§38-41, 91, 98] – but this legally dubious; anyway there is no requirement of unanimity of all other States; • International standards: Usual deference to ILO and ESC jurisprudence (no diminution by reason of employer challenge at ILO) but ILO and ECSR condemnation of UK ban on secondary action ‘are not of such persuasive weight’ because that examples given did not match facts of instant case [§27-37, 76, 92-98] – yet facts of instant case disregarded in assessing justification put forward by UK (see below); 19 January 2015 4

5. Proportionality (i): though RMT ‘adduced cogent arguments of trade union solidarity and efficacy, these have not persuaded the Court that the UK Parliament lacked sufficient policy and factual reasons’ to consider ban was ‘necessary in a democratic society’ [§103] – yet those reasons were threat to third parties and domestic economy of secondary action which (a) factually dubious, since effect depends on the number of members and the industry rather than whether primary or secondary; and (b) was not a threat on the facts in the instant case – as to which ECtHR held [§103] that whether lesser restriction would have sufficed was not the question; • Proportionality (ii): the ban did not prevent some primary strike action therefore restriction not disproportionate [§85, 101, 104] – yet compare e.g. Bąqckowski v Poland (App. 1543/06, 24 September 2007 ), Karaçay v Turkey (App 6615/03, 27 June 2007), Kaya and Sehan v Turkey (App 30946/04, 15 September 2009); 5 19 January 2015

6. Margin of appreciation: ‘In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy , the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”’ [§99, and see 89] – yet industrial relations policy is the very heart of the subject matter of the last part of Art.11(1), there is no echo of this doctrine in Demir and Baykara, Wilson and Palmer v UK, or Kaya and Sehan and all the other cases on the R to S; • Why should States have a wider freedom to abridge one explicit ECHR right over another? And on what basis is the test under 11(2) heightened to require proof that the restriction is manifestly without reasonable foundation? This is a test which hugely diminishes trade union rights; • Furthermore, the reference in Demir and Baykara to a broad margin of discretion was confined to the facts in that case [§86] – but the ECtHR in RMT got the facts in Demir wrong and the proposition should stand. 19 January 2015 6

7. What was the real reason for the judgment? The judgment shows contempt for the workers of Europe in a time of bitter austerity and inequality. The driving motive, in the absence of jurisprudential coherence is plain. Undoubtedly it was an attempt at appeasement of the UK government which had been threatening to leave the ECHR and, if necessary, the Council of Europe. The appeasement has so far failed, since on 3 October 2014, the Conservative Minister of Justice published a policy paper restating that very intention if the Conservatives win the next election in May 2015. No doubt encouraged by the RMT case, on 10 January 2015 the Conservatives announced further anti-strike laws if they win the election. The proposal is that a vote for industrial action in the health, transport, education or fire service will require not merely a majority of those voting but also that at least 40% of the entire constituency votes in favour. 19 January 2015 7

8. A sinister development? This is not a conspiracy but is a reflection of dominant ideology and is therefore consistent with cases in other jurisdictions such as: • Viking (C-438/05), 11 December 2007, [2007] E.C.R. I-10779, [2008] ICR 741 and Laval (C-341/05), 18 December 2007, [2007] ECR I-11767 in the CJEU; • McGowan v Labour Court [2013] IESC 21 in Ireland; • The activity of the Troika and the European Commission in smashing collective bargaining, particularly sectoral bargaining in Europe (especially in Greece, Romania, Ireland); • The Employers’ Group destabilisation of the ILO on the ground that ILO Convention 87 does not contain a right to strike – after 60 years of jurisprudence to the contrary; • The secret campaign for TTIP (based on CETA). The TTIP is likely to contract GDP and lose jobs (see J Capaldo, The TTIP: Implications for the EU and Beyond, Tufts University, 2014), as did NAFTA. 19 January 2015 8

9. TTIP TTIP and CETA • TTIP, CETA (see also TiSA, EU/Singapore TA, TPP) focus on removal of regulations (not tariffs) and expropriation – allowing TNCs suing to penalise domestic democratic legislation. • This is achieved by ISDS. Only an ‘investor’ can bring a claim, only against the EU or a Member State. In form it is arbitration. No scope for a citizen, a body or a trade union to participate. e.g. amongst hundreds of actions under other TAs: • Vattenfall v Germany €3.4bn sought for phasing out nuclear power; • Lone Pine v Canada claim for $250m for Québec’s fracking moratorium; • Oceanagold v El Salvador claim for compensation for loss of profit by clean water regulation; • Achmea v Slovakia claim for injunction to block draft legislation to establish single public health insurance scheme. 19 January 2015 9

10. There is no published text of TTIP but CETA is available on internet. Labour rights are recognised (Chapter 24 “Trade and Labour”) and the obligation on State parties that their laws and practices “embody and provide protection for the fundamental principles and rights at work”. • But only the 1998 ILO Declaration of labour standards is referenced. The statement of principles is in the broadest of terms, though it includes “Freedom of association and the effective recognition of the right to collective bargaining.” The chapter only binds States and not investors. • The chapter commits State parties to ratify and implement ILO Conventions – query whether TTIP will do so, given US intransigence on issue. • There is no access to ISDS for breach of labour standards by investors. 19 January 2015 10

11. Questions arise: • Whether the same attitude to the principles of labour rights as demonstrated in Alemo-Herron (C-426/11), 18 July 2013, [2013] ICR 1116 in relation to the EU Charter will be taken in relation to the Trade and Labour Principles in CETA; • Whether the principles of freedom of establishment and the provision of services (not in the same terms of TFEU) will lead to adoption of similar diminution of the rights to strike and collective bargaining as under the TFEU in Viking and Laval, (esp. given no equivalent of the PWD) and Alemo-Herron; • Whether a parallel to the exemption in Albany [1999] ECR I-5751 from competition law in respect of collective bargaining will be constructed in the face of Chapter 19 on Competition; • Whether non-regulation of strikes will fall foul of various provisions (see challenges governemnts for failing to quell strikes and unrest, defeated on technical grounds, in Noble Ventures v Romania (ICSID No.ARB/01/11, 2005); Plama Consortium v Bulgaria (ICSID No.Arb 03/24, 2008)). 19 January 2015 11

12. Conclusion We are facing a global onslaught on the interests of the working class. Trade unions must fight for their rights on many fronts. They must use the industrial and political tools at their disposal. But the legal dimension of the strategies adopted by employers and governments should not be underestimated . Conversely , the use of the law should be included in the trade union armoury and deployed as appropriate. As to the latter the ILO and the European Committee on Social Rights are under-used by European Unions. And cases should still be pursued to the ECtHR - but they must be selected with care; Tymoshenko v Ukraine (App 48408/12, 2 October 2014) offers some hope here. 19 January 2015 12