CEDH · CASELAW;CLIN;ENG — 2 juillet 2002

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The employers offered the individual applicants personalised contracts, including a wage increase, which involved relinquishing all rights to trade union recognition and representation. The applicants refused to sign the contracts, as a result of which their salaries remained at a lower level than those of employees who had accepted personal contracts. The employers subsequently de-recognised the applicant trade unions. Law : Article 11 – While the matters about which the applicants complained did not involve direct intervention by the State, State responsibility would be engaged if there had been a failure to secure the applicants’ rights guaranteed by this provision. The Convention safeguards freedom to protect the occupational interests of trade union members and the State must permit and make possible the conduct and development of trade union action. However, Article 11 does not secure any particular treatment of trade unions and their members. At the material time, the United Kingdom had a voluntary system of collective bargaining, with no legal obligation on employers to recognise trade unions for that purpose. However, collective bargaining is not indispensable for the effective enjoyment of trade union freedom, which does not extend to imposing on an employer an obligation to recognise a trade union. Nevertheless, the union and its members must be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In the present case, there were other measures available to the unions for furthering their members’ interests, in particular the possibility of strike action, which is one of the most important means by which the State may secure a trade union’s freedom to protect its members’ interests. Consequently, the absence of an obligation on employers to enter into collective bargaining did not give rise, in itself, to a violation of Article 11. The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised to take steps, including organised industrial action, with a view to persuading an employer to enter into collective bargaining. Furthermore, it is of the essence of the right to join a trade union that employees should be free to instruct the union to make representations to their employer or to take action in support of their interests. If they are prevented from doing so, freedom to belong to a trade union for the protection of their interests becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using the union to represent them. In the present case, employers were able to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership and such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. It was therefore possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. By permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under Article 11, as regards both the applicant unions and the individual applicants. Conclusion : violation (unanimously). Article 10: No separate issue arose under this provision that had not already been dealt with under Article 11 and it was not, therefore, necessary to examine the complaint separately. Conclusion : not necessary to examine (unanimously). Article 14 in conjunction with Articles 10 and 11: It was unnecessary to examine this complaint. Conclusion : not necessary to examine (unanimously). Article 41 – The Court rejected the applicants’ claim for pecuniary damages but awarded each individual applicant € 7,730 in respect of non-pecuniary damage. It also made awards in respect of costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes