Article 6 promotes collective bargaining. For this purpose state parties are required to take certain steps. The first such step under Article 6.1 is to promote joint consultations between workers and employers. According to the Committee this applies to all kinds of consultations between employees and employers or their organizations, with or without involvement of the government (particular emphasis is put on occupational issues). The main idea is that such consultations should be on an equal footing, both parties should enjoy an equal say in the matter. Such consultations should take place in all sectors and at all levels; local, regional and national.332
There is no need for a state to intervene if consultations between the sides of an industry are adequate. If this is not the case, state must take positive steps to encourage consultations. States might ask trade unions to meet representativeness criteria. However, such a requirement must be reasonable and must not excessively limit the possibility of trade unions to participate. In order not to be in violation of Article 6.1, states should prescribe these requirements in law. The requirements must be objective and subject to judicial review.333
The second step that states are required to undertake in order to promote collective bargaining is to provide machinery for voluntary negotiations between parties with a view to regulate occupational issues by collective agreements
331 Supra note 319, p. 98.
332 Matti Mikkola, Social Human Rights of Europe, Legisactio Ltd, 2010, p. 256-257. 333 Ibid. p. 257.
(Article 6.2). The national law should recognize the right of employer and employee to regulate their relationship by collective agreements. According to the Committee both parties should be “at liberty to conclude collective agreements”. States must actively promote the conclusion of such agreements if spontaneous development of collective bargaining is not sufficient. States need to ensure that each side is prepared to bargain collectively. States may intervene in the bargaining process. This intervention is justified only according to Article G of the Charter and it should stop immediately after return to the normal situation in which the parties can exercise their right to collective bargaining freely again.334 The third step to promote collective bargaining is to establish machinery for conciliation and voluntary arbitration in the case of labour disputes. In other words, states are required to establish and use appropriate techniques for the out- of-court settlement of collective labour disputes. This should be supported by national law. The emphasis of the Committee is on the peaceful nature of the settlement of such collective disputes. If such a dispute is regulated independently by stakeholders then there is no need for a state to intervene. It is also important that the social arbitrage created for settling such disputes should be organized in a manner that ensures that states cannot affect the outcome of the arbitration decision. Therefore, it is a requirement of the Committee that domestic regulations must not provide any instructions or guidelines or suggest any criteria that should be followed by arbitrator when handling down the judgment. Also, crucial is that peaceful techniques of settling collective labour disputes should not be replaced by labour court proceedings.335
334 Ibid. p. 260-262.
The Charter is the first international convention in force that explicitly recognized, in Article 6.4, the right of workers to go on strike in case of conflicts of interests. It also generally guarantees the right of employers and workers to collective action. In case of employers, such action could be a lockout. In the case of workers, other collective actions can be refusals to do overtime or working to rule and going slow. Both the right of an employer to lockout and the right of an employee to strike can be regulated by national law, but only to such an extent that the very existence of a right is not threatened. However, according to the Committee the right to strike and the right to lockout do not necessarily enjoy legal equality.336
The right to strike is not absolute, and states may restrict its exercise under Article G of the Charter. States can also introduce common requirements for strike, such as an obligation to give notice; an obligation to allow settlements of labour disputes and to postpone strikes while in settlement (cooling-off period); limitations on a strike if its consequences of it are too dangerous for the state, for the development of society, to its citizens or to a third party.337 However, according to the Committee, intervention in the exercise of the right to strike on the part of state authorities is a very serious measure and should be justified under Article 31.1 of the Charter. Moreover, such intervention should be stopped as soon as the situation goes back to normal.338
According to the wording of the Article 6.4 collective action is restricted by the collective agreements concluded previously. The Committee is of the opinion that
336 Supra note 319, p. 104-105. 337 Supra note 332, p. 280. 338 Supra note 319, p. 107-108.
such an obligation can only affect the right to take collective action of those workers who were part of the previous collective agreement and only in respect of those matters covered by that agreement.339
One more important aspect is the fact that Article 6.4 permits workers to go on strike only in the case of a conflict of interests. It means that in case of a conflict of rights it cannot be invoked. In other words, disputes concerning valid collective agreements are not covered by this article and should be settled by negotiations or voluntary arbitration or a specialized Court with jurisdiction in such matters. Even if the collective agreement purports to permit strike action in disputes concerning rights, this does not mean that states are obliged under the Charter to render such action legal.340
The Committee interprets the provision in a restricted way and allows neither sympathy strikes nor political ones. It should be noted that the ILO allows for both sympathy strikes and political strikes. However, ILO case law prohibits a party to advance its own interests, if those are bound by collective agreements, with the sympathy strike. Sympathy strikes should not be allowed for use as a roundabout way to take collective action that is against the peace obligation.341 Article 6.4 does not mention any category of workers who might be denied the right to strike. Therefore, public officials are entitled to go on strike as well. The only exception in this regard that the Committee allows are those officials who are members of the police or the armed forces, judges and senior officials. The right to strike of these employees might be restricted. However, a denial of the
339 Ibid. p. 106.
340 Ibid.
right to strike for public servants per se is not acceptable under the Charter. The right of workers to strike in essential or minimum services can also be restricted. However, similar to the case of public servants these restrictions cannot cover everybody working in those services as a group, especially if the services are defined broadly.342
In the opinion of the Committee, strikes cannot be considered a violation of contractual obligations entailing a breach of a worker’s employment contract. The termination of an employment contract on the basis of engagement in strike action violates Article 6.4 of the Charter unless strikers are fully reinstated after the strike, meaning that their previously acquired entitlements (such as issues of pension, seniority and holidays) are not affected.343 According to the Committee, civil or criminal liability for participating in a strike has considerable bearing on the right to strike. Nevertheless, such liability is not precluded as long as it is in keeping with the Charter.344
5.4 Conclusion
In conclusion, the content of the right to organize and right to strike under the ESC can be summarized as follows:
The right to organize
1. Freedom to form (easy notification and registration procedure, moderate fees, low membership requirements, open for non-nationals); 2. Freedom to join or not to join (ban of pre- and post-entry closed shops); 3. Right to act freely (bye-laws, membership, hold meetings at work together
342 Ibid. p. 287-289.
343 Ibid. p. 290-291. 344 Supra note 319, p. 110.
with trade union officials); 4. Any recognition as privileged partner (representativity criteria) should be reasonable and objective, based on pre-established criteria and be subject to suspension by an independent body and regularly reviewed, and other trade unions should not be deprived of all essential prerogatives; 5. Restrictions of the rights of police and armed forces, as well as highest civil servants; 6. Non- discrimination of any worker, whether unionized or non-unionized, representative of other workers, migrant worker or on any other grounds.345
The right to strike
1. Entitlements: should be guaranteed by law in cases of conflicts of interests; should cover also public employees and civil servants; sectoral bans – not proportionate; prior approval – not in compliance; any group of employees should be entitled to call a strike; requirements for representativity – not in compliance; procedural requirements (ballot method, quorum, majority requirement) should not limit the exercise of the right; any employee should be entitled to join the strike. 2. Restrictions: illegitimate reason; as a clause of a collective agreement (expressed will of the parties needed); minimum service – (conditions of article G); notice and cooling-off periods or prolonging the conciliation may not limit the exercise of the right (days or weeks, not months); compulsory arbitration not accepted (except of article G). 3. Effects:
345 Supra note 332, p. 255.
prohibition of dismissal or full reinstatement required; proportionate deductions of wages; equal rights for those joining the strike.346