In April, the European Court of Human Rights (ECtHR) held that the ban on secondary action ("sympathy strikes") adopted in the United Kingdom (UK) did not violate the right to freedom of association guaranteed by Article 11 of the European Convention on Human Rights (ECHR). The National Union of Rail, Maritime And Transport Workers v. The United Kingdom; ECtHR 8-Apr-2014. The case was brought by the National Union of Rail Maritime and Transport Workers ("RMT"). The European Trades Union Confederation (ETUC), the Trades Union Congress (TUC) and Liberty were permitted to intervene in the proceedings and filed submissions to the ECtHR. The decision of the ECtHR is important to US based employers as many commentators and academics both inside and outside the US argue that the ban on secondary strikes found in Section 8(b) (4) of the National Labor Relations Act violates basic human rights. This argument is frequently used as justification for employees to agree to enter into International Framework Agreements or other private codes of conducts.
Background - International Law
The UK's ban on sympathy strikes has been criticized by other international bodies.
The International Labour Organisation (ILO) considers that the general prohibition of sympathy strikes could lead to abuse and has pushed for the ability to take such action provided that the initial strike that the workers are supporting is itself lawful.
Article 6, paragraph 4 of the European Charter provides for a right to "collective action in cases of conflicts of interest, including the right to strike…", which has been ratified by the UK. The European Committee on Social Rights (ECSR) has adopted a similar position to the ILO opining that the ban on sympathy strikes is not compliant with Article 6 paragraph 4 of the Charter.
Article 28 of the Charter of Fundamental Rights of the European Union grants employees a qualified right to strike. It states: "Workers… have in accordance with Community law and national laws and practices, the right to…take collective action to defend their interests including strike action." The ECtHR's decision reports that only four EU member states do not permit sympathy strikes: the UK, Austria, Luxembourg, and The Netherlands.
RMT v UK
The RMT argued that the UK ban violated Article 11 of the ECHR (Article 11). The ECtHR noted that this was the first time that it had had to consider whether sympathy strikes falls within Article 11. It considered that Article 11 had to be interpreted in harmony with the general principles of international law, and noted that the ILO Conventions and the European Social Charter protects sympathy strikes, and that it is in fact permitted in many European States. Accordingly, it concluded that the UK ban was an interference with Article 11. The question before the ECtHR was: can that interference be justified i.e. was it prescribed by law, did it pursue a legitimate aim, and was it "necessary in a democratic society"? (Article 11(2) ECHR)
Since there was no question that the interference was prescribed by law, the ECtHR turned its attention to the remaining requirements. The ECtHR found that the ban pursued the legitimate aim of protecting the rights and freedom of others. It accepted the UK's argument that sympathy strikes could potentially impinge on the "rights of persons not party to the industrial dispute", and could cause broad disruption within the economy and interrupt the delivery of services to the public.
It also considered that the ban was necessary in a democratic society. It held that the balancing act between labor and management interests involves social and political issues, and that the Contracting States must be afforded a margin of appreciation as to how trade-union freedom and its members' interests may be secured. Sympathy strikes are not a "core" trade union activity but a second or accessory aspect of trade union activity, which gives the UK's legislature a wider margin of appreciation to regulate the freedom of trade unions. The ECtHR noted that democratically elected parliaments were in a better position to appreciate what measures should be taken to decide what is in the public interest on social or economic grounds, and held that it should respect the legislature’s decisions unless they were "manifestly unreasonable." Here, it was relevant that the ban on sympathy strikes had remained intact in the UK for over 20 years, notwithstanding two changes of government during that time, which demonstrates a democratic consensus in support of it.
While the ECtHR noted the opinions of other international bodies on the legitimacy of the ban in the UK, its review was limited to the facts of the particular case. On the facts before it, the RMT was able to protect its members' interest in spite of the ban - it was able to represent its members, negotiate with the employer on their behalf and organize a strike, albeit at a more limited scale than it had wanted.
Consequently, the ECtHR held that the ban did not amount to an unjustified interference with the RMT's right to freedom of association, and no violation of Article 11 ECHR had occurred.
The decision is a setback to the trade union movement in the UK particularly in view of the increase in outsourcings of public sector services to the private sector. The express acknowledgement by the ECtHR that States have a wider margin of appreciation in the field of economic and social policy will be welcomed by UK employers.
Whether other European states will have the appetite to change their position on sympathy strikes following this case remains to be seen. Much of that will depend on the industrial relations framework in the particular State. At the moment, all European states except Greece, Finland, Norway, and Sweden have some level of restriction (short of an outright ban) on secondary strikes as reported in the ECtHR's decision.
EU multi nationals are now free to challenge sympathy strikes in the US, the UK, and elsewhere (provided that local legislation does not permit sympathy strikes) with less fear of criticism that they are violating basic human rights protected by the European Convention or other international conventions and charters. Similarly, US based multinationals may have a legitimate basis to refuse to adopt restrictions on their freedom to operate which not required by law.