Collective Bargaining

Collective bargaining in the International Trade Union Rights Area

Definition of Collective bargaining provided by ITUC-CSI-IGB: The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement in this legal encyclopedia.

Freedom of Association and the Rights to Collective Bargaining: International Treaties

Freedom of association, the right to collective bargaining and the right to collective action—including the right to strike—are not conceived as a single set of freedoms and rights so as such are not recognised as a unit, although they are closely intertwined. They are acknowledged by democracies the world over, as is demonstrated by freedom of association’s being incorporated into Article 22 of the International Covenant on Civil and Political Rights, as well as Article 8 of its counterpart, the International Covenant on Economic, Social and Cultural Rights, both of which specify the right to form trade unions as laid down in Article 23(4) of the 1948 Universal Declaration of Human Rights.

A number of international instruments address these freedoms and rights more thoroughly and are therefore likely to have a greater impact on the way in which industrial relations are regulated within national boundaries: the regulatory models are certainly very different, but these instruments provide a lowest common denominator, especially in Europe. This minimum standard is particularly relevant when industrial action has a transnational impact, as the legitimacy of the action may be subject to different systems with differing consequences for those involved. Some international instruments benefit from the activity of interpretative bodies, and this helps increase the value of their rules in industrial relations management at state level.

Neither MLC, 2006,11 nor WFC, 2007,12 includes these rights within their scope, but they were referred to by a number of specific pre-existing ILO agreements on the matter, among which the 1948 ILO Convention No. 87 on freedom of association and protection of the right to organise and No. 98 on the right to organise and collective bargaining in 1949 are especially worthy of note. Both Conventions are of mandatory application for contracting nations and countries that have joined ILO Convention No. 147 on Merchant Shipping, as the latter classifies these freedoms and rights as minimum standards in this sector. In sectors other than merchant shipping, the ILO 1998 Declaration on Fundamental Principles and Rights needs mentioning as it considers freedom of association both essential and indispensable, while ILO Convention No. 135 and Recommendation No. 143, which complement these Conventions and concern the protection and facilities to be afforded to workers’ representatives in companies, should also be mentioned.

More specifically, ILO Convention No. 87 lays down the freedom to create an association and to join one, which actually entails the absence of a prior authorisation scheme, as well as the freedom to choose a union to join. Further guarantees of trade union activity are enshrined in the Convention, for example the guarantee that only the courts can order the suspension and termination of a trade union. The right to strike is not explicitly referred to, but after extensive reading the Committee on Freedom of Association considered that the right was included.13 It should also be noted that the personal scope of application covers all workers with no distinction of any kind, particularly on nationality grounds. This convention rule also serves the purpose of protecting ITF inspectors’ access on board ship, as their activity corresponds to workers exercising their freedom of association.

The Council of Europe provides two relevant instruments in this area. The first is the European Social Charter, which is of minor significance as it is a programmatic text. However, this was not an obstacle to its being taken into account in Article 151 of the TFEU, for which reason the Charter is given specific consideration in the establishing of European Social Policy. Articles 5 on freedom of association and 6(4) on the right to strike, which also appears in the revised version,16 and Article 31(1) are especially noteworthy. According to the latter, neither these rights nor their exercise can be subject to restrictions or limitations that are not specified in the Charter, ‘except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals’.

The auctoritas of both this instrument and its supervisory committee has afforded them major influence over the interpretation of other international instruments, in particular the second instrument issued by the Council of Europe, the European Convention on Human Rights,17 and the interpretation rendered by the European Court on Human Rights.

Article 11 of the ECHR enshrines the right to freedom of assembly and association, including the right to set up and join unions as well as the protection of their members’ interests. The article does not refer to further rights, and ECtHR case law did not help broaden its scope until very recently. Despite a certain degree of reluctance at the outset, ECtHR judgments soon reaffirmed both positive and negative aspects of freedom of association, i.e. the right to associate and the freedom not to associate with others.19 However, it was far less generous in protecting other rights that the ILO, for example, considers intrinsically linked with this freedom, namely, the rights to collective bargaining and industrial action. This stance has fortunately been reviewed, and in its judgments on Turkey’s attacks on government employees’ freedom of association the ECtHR accepted that both the right to collective bargaining and the right to strike are corollary rights to that of freedom of association, also enshrined in Article 11 of ECHR. As a consequence, ITF inspectors are also likely to invoke the ECHR in order to get access to vessels.

The entry into force of the European Charter of Fundamental Rights involves an explicit acknowledgment of a number of rights that had already been mentioned by the TFEU, but only to emphasise that the European Union did not have legislative competence on these matters. Prior to this, the Charter of Fundamental Social Rights of Workers of 9 December 1989, where freedom of association and collective bargaining are explicitly enshrined, as well as the right to strike and to take other industrial action (item 13) is worth mentioning. However, this document’s programmatic nature required a much more binding statement, such as the one now provided by the European Charter of Fundamental Rights; the new Charter’s binding nature has not prevented European Union intervention on this issue from being piecemeal though, as the Union in fact lacks legislative competence on these matters. The European Union has however taken steps that involve explicit recognition of these rights in one way or another, such as addressing employee participation in the works councils of businesses set up according to EU Regulations on European companies.

The EU has made progress in collective bargaining, and the maritime sector in particular has benefited from this major breakthrough: it is clear from Article 155(2) of the TFEU, formerly 139(2), that social dialogue can lead to an EU instrument being introduced, as evidenced by the transformation of ILO Conventions into EU legislation. For example, an agreement between ECSA and FST on 30 September 1998 led to the European Union issuing Directive 1999/63/EC,26 based on ILO Convention No. 180, on seafarers’ working hours. The European Union’s adoption of MLC, 2006, was also followed by a directive,27 and the same path is being taken to incorporate WFC, 2007.

The European Union therefore promotes cross-border collective bargaining and seeks to guarantee workers’ rights to information, consultation and participation. However, throughout this process no steps forward have been taken to regulate the right to industrial action in cross-border cases, which is expressly excluded from the scope of Article 153(5) of the TFEU. Article 28 of the European Charter of Fundamental Rights confirms this exclusion; as previously mentioned, it acknowledges the rights, but in terms that are a good example of the limits of EU law: ‘Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’.

Source: Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg

Cross-Border Collective Agreements

Please, find information on the Extraterritorial Application of National Collective Agreements and Transnational Collective Agreements in the entry. The entry provides an overview of the different legal approaches to the rights in question, paying particular attention to industrial action and its vicissitudes within the European Area of Justice.