The European Committee of Social Rights (ECSR) provides detailed explanations of the terms and concepts mentioned in the two articles on collective labour rights. Regarding Article 5, the Committee makes it clear that because of the importance of the right to organize it is important that it is guaranteed by national law. Gaps in legislation or case law cannot be filled only by practice.
Article 5 provides protection for organizations of workers and employers. So far the Committee has not engaged itself in with issues concerning employers’ rights to organize, but only workers’ rights.317 Civil servants are not separately
mentioned in the article, which means that they are entitled to the full range of guarantees. Any restriction on the enjoyment of the rights under Article 5 should be justified under Article 31 of the Charter, which allows restrictions and limitations, but not the total suspension of the right.318 Workers who are not
317 Andrzej Marian Swiatkowski, Charter of Social Rights of the Council of Europe, Kluwer Law
International, 2007, p. 189.
318 According to Article 31 of the Charter, the rights mentioned in the Charter shall be subject to
restrictions and limitations specified in the Charter, except for those restrictions and limitations which are “prescribed by law and are necessary in a democratic society for the protection of the
protected by Article 5 are those in the armed forces and to some extent the police.319
As for organizations, according to the Article 5 workers and employers can form and join organizations for the protection of their economic and social interests. This usually means trade unions.320 The involvement of trade unions in political processes is not necessarily outside the frame of the Article 5. Here it is relevant to mention the 1952 resolution of the ILO on the Independence of the Trade Union Movement. According to this resolution, trade unions can undertake political activities for the advancement of their economic and social interests. Nevertheless, such political involvement “should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions, irrespective of political changes in the country”.321
Article 5 contains both negative and positive obligations for states. Negative obligations oblige states not to violate or restrict the freedom of association of trade unions. Member states may introduce formal demands to be fulfilled by workers forming a trade union. If there is a need for the registration of a trade union, any precondition, including fee requirements, must be reasonable. The obligation to register only does not violate the requirements of Article 5 if the national law provides sufficient protection for the organization during the
rights and freedoms of others or for the protection of public interest, national security, public health, or morals”.
319 David Harris, John Darcy, The European Social Charter, 2nd edition, Transnational Publishers,
Inc., 2001, p. 88-90.
320 Supra note 317, p. 189.
registration process. A minimum membership requirement may infringe Article 5 if it is too high.322,323
Workers should also be allowed to join organizations of their own choice. They should have the freedom to organize at whichever level they wish; local, national or international.324 The trade unions that they establish should enjoy broad autonomy. They should freely regulate their internal organizational affairs, including organizational structure and requirements for membership, disciplinary methods, or denial of membership. Trade unions must be able to freely elect their representatives and administer their property. However, as I have already mentioned, member states are allowed to introduce some restrictions on the trade union right to organize in the name of the protection of the rights and freedoms of others and the public order.325 In relation to the UK, the Committee considered that very complex national legislation in the area may in itself impair the right to organize.326
Article 5 guarantees not only the right to organize but also the right not to organize. Initially the Committee considered not touching upon closed-shop practices, but later it changed its mind. The Committee took notice of an ECHR case in which it was stated that closed-shop practices are in violation of Article 11 of the European Convention. According to the Court “permitting every kind of compulsion in the field of trade union membership would strike at the very
322 Supra note 317, p. 190-193. 323 Supra note 319, p. 93-94. 324 Ibid. p. 94. 325 Supra note 317, p. 194-196. 326 Supra note 319, p. 96.
substance of the freedom it is designed to guarantee”.327 The Committee shared the reasoning of the European Court and applied it to Article 5 of the ESC. As a result, it is now settled case law that closed-shop practices are neither authorized nor tolerated. This applies equally to pre- and pro-entry closed shops.328
Even though the right to collective bargaining is mainly protected under Article 6, Article 5 also pays particular attention to it. It is considered that compliance with Article 5 is a precondition of compliance with Article 6(2) on the right to collective bargaining.329 According to the Committee, trade unions should enjoy the right to negotiate the collective agreements on which the wages and social protection of the workers usually depend. A lack of negotiating rights in collective agreements undermines the existence of trade unions as a whole. Establishing excessive requirements for trade unions in order to receive negotiating rights (for instance, a minimum membership requirement of at least 500 or 1000 members; an administration fee for the license to negotiate of 20,000-60,000 Irish Pounds) is considered by the Committee as a violation of Article 5.330
As for the positive obligations under Article 5, it protects workers’ organizations from interference by their employers. The focus of the Committee in this regard is on discrimination based on trade union membership (or non-membership) and a state’s obligation to protect trade unions and its members against such
327 Young, James and Webster v. the United Kingdom, Application no. 7601/76; 7806/77, §52,
1980.
328 Supra note 319, p. 95. 329 Ibid. p. 97.
discrimination. In particular, states are required to have national laws in place that makes such activities illegal.331