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Collective autonomy and collective bargaining as global labour rights global labour rights

2.4.1. Introduction

The discourse on global labour rights stems from the study of human rights and entails a legal-pluralistic understanding of the several sources belonging to different legal systems that regulate a socio-economic phenomenon such as the exercise of collective labour rights. The analysis focuses on the sources related to the

300 Giugni defines diritto sindacale as a ‘system of norms constituting the framework of the activity of the organised group’, see Giugni (Diritto del Lavoro) in Giugni (1989) 264. Giugni affirms the universality of this branch of law, which is, however, expressed in different forms depending on historical, political and economic variables, Ibid., 265.

301 Giugni (Diritto del Lavoro) in Giugni (1989) 267.

302 Giugni refers to the freedom of association as a question concerning the individuals in their relations with the trade union. In this sense, he also includes the necessity to preserve the negative freedom of association, see Giugni (Diritto del Lavoro) in Giugni (1989) 267–68.

303 Giugni (Diritto del Lavoro) in Giugni (1989) 270–71.

304 Giugni (Diritto del Lavoro) in Giugni (1989) 278.

305 Giugni (Diritto del Lavoro) in Giugni (1989) 280.

306 Pino (2014) 29.

International Labour Organisation (ILO), the Council of Europe, and the EU, and on the interpretation given by their judicial or quasi-judicial bodies.

Created in 1919 as part of the post-WWI world order, and reformed in the ensuing years, the ILO is a supranational organisation concerned with labour issues. Its specific nature has not changed since it became a specialised agency of the newly formed UN, in 1946.307 The salient feature of the ILO is its tripartite labour standard-setting process. Though the ultimate decision upon the ratification of the international Conventions rests with the States, the responsibility for drafting, voting, monitoring and enforcing labour standards is shared by the social partners and governments. The ILO’s main instruments – Conventions and Recommendations – are adopted through negotiations between representatives of the workers, employers and governments, but must be ratified by the domestic legislative body in order to bind the States and must receive a certain number of ratifications in order to enter into force.308 Further, the supervisory mechanism has a tripartite structure including a tripartite Conference Committee on the Application of Standards, which receives the State reports from the Committee of Experts on the Application of Conventions and Recommendations (CEACR), and the Committee of Freedom of Association (CFA), formed in 1951, which deals with cases concerning violations of the freedom of association.309

The Council of Europe was founded in 1949 in the wake of the peace process in Europe after the Second World War by ten countries,310 and today it includes 47 Member States. It is a regional organisation typically structured around the preponderance of the intergovernmental element: decisions are taken uniquely by arrangements between States and with the consensus of governments.311 No involvement of social partners is conceived. As for collective labour rights, two relevant conventions have been adopted within the Council of Europe: the European Convention on Human Rights and Fundamental Freedoms (ECHR), adopted in 1950, and the European Social Charter (ESC), adopted in 1961 and revised in 1996.

A first difference between the two consists in their binding value. The ECHR is

307 For a brief but exhaustive description of the historical development of the ILO, see Tonia Novitz, International and European Protection of the Right to Strike (Oxford University Press 2003) 95–106.

308 Hepple (2005) 30.

309 For an overview of ILO supervisory machinery, see ILO, Handbook of Procedures Relating to the International Labour Conventions and Recommendations (ILO 2012).

310 Belgium, Denmark, France, Ireland, Italy, Luxembourg, Norway, Netherlands, UK and Sweden.

311 The structure is composed of a Committee of Ministers, a Parliament Assembly and a Secretariat.

The first one is made up of the Ministers of Foreign Affairs of Member States and it takes binding decisions on the internal organisation and arrangement of the CoE, setting special committees and addressing resolutions and recommendations to Member States. The Parliament Assembly is the deliberative body of the CoE and is formed by representatives of national Parliaments. It can discuss any subject falling under the competences of the CoE and can address recommendations to the Committee of Ministers. Finally, there is the Secretariat that has an administrative role of giving support to the other and more political bodies of the CoE.

entirely binding for the Contracting Parties, whereas the revised ESC provides for a core of provisions comprising 9 articles and the Member States of Council of Europe shall accept and ratify at least 6 of them and an additional number of articles or numbered paragraphs by which to be bound.312 The total number of articles or numbered paragraphs by which every state has to be bound cannot be fewer than 16 articles or 63 numbered paragraphs in order to be party of the Charter.313 A second difference relates to the supervisory machinery. The ECHR has a judiciary procedure that permits individuals, after having exhausted all the internal levels of justice, to complain to the European Court on Human Rights; whereas the ESC provides for both a mechanism based on a monitoring system of national reports and a collective complaints system before a supervisory body – the European Committee of Social Rights (ECSR).314 This means that an individual cannot seek protection before the ECSR.

The EU context has to be read in connection with the primary objective set by the 1957 Treaty of Rome, i.e. the establishment of a common market through the merging of the domestic markets of the Member States. The EU project was informed by the ordo-liberal dogma, according to which the social aspects of integration would be achieved naturally as accessories to the economic aims.315 Therefore, a discourse on labour rights at the EU level emerged only later.

Furthermore, the presence of documents such as the ECHR and the ESC, to which the original EU Member States were bound by their membership to the Council of Europe, has to a certain extent slowed down the process of equipping the EU with a comprehensive ‘fundamental rights’ document.316 A first step towards the recognition of fundamental rights, and in particular of social rights, in the EU was the adoption of the Community Charter of Fundamental Social Rights of Workers on 9 December 1989. It was adopted as ‘solemn proclamation’ with a declaratory, but not mandatory, effect and it was limited to those social rights inherent to

312 The provisions concerning the right to organise (art. 5) and the right to bargain collectively (art. 6) are included in the ‘hard core’ provisions of the Charter, which are Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20.

313 Part III, Art. A of (R)ESC.

314 See Stefan Clauwaert, “The Charter’s Supervisory Procedures” in Niklas Bruun, Klaus Lörcher &

Isabelle Schömann & Stefan Clauwaert (eds), The European Social Charter and the Employment Relation (Hart 2017) 97–144.

315 Hepple (2005) 199–201; Simon Deakin, “The Lisbon Treaty, the Viking and Laval Judgements and the Financial Crisis: In Search of New Foundations for the Europe’s ‘Social Market Economy’” in Bruun, Lörcher & Schömann (2012) 19–43, 21–23; Stefano Giubboni, Social Rights and Market Freedoms in the European Constitution. A Labour Law Perspective (Cambridge University Press 2006) 29; Christian Joerges, “What is Left of the European Economic Constitution?” (2004) 13 EUI Working Paper Law, 14–17.

316 See Csilla Kollonay-Lehoczky, Klaus Lörcher & Isabelle Schömann, “The Lisbon Treaty and the Charter of Fundamental Rights of the European Union” in Bruun, Lörcher & Schömann (2012) 61–

104, 62.

working persons.317 The adoption of the Charter of Fundamental Rights of the EU, proclaimed on 7 December 2000, was a further and decisive step towards the recognition of an EU-level protection of fundamental rights. Although it was approved as soft law lacking binding legal value,318 the Commission itself indicated that the Charter would have been able to produce legal effects in the EU system.319 The Charter has become legally binding in 2009, through the Treaty of Lisbon, which gave it the same legal value as the Treaties.

2.4.2. Collective labour rights as human rights

A classical distinction in the discourse about rights sees civil and political rights on the one side, and social and labour rights (or socio-economic rights) on the other.

This divide stems from an historical understanding of rights as given by the State to individuals in order to partake in the life of the community. Civil and political rights are usually defined as ‘first generation rights’ because of their earlier appearance in the relationship between the State and individuals. They have been conceived as to protect the individuals from arbitrary intervention of the authority in their personal sphere as well as to ensure free political participation. Social and labour rights are instead usually defined as ‘second generation rights’ because of their later appearance, which stemmed from the emergence of the so-called ‘social question’.

They have been conceptualised and enacted as to ensure the welfare of the individuals and improve their living conditions.320 The discourse about rights is therefore strictly linked to the historical evolution of the form of the State and of the relationship between the State and individuals, which connects the discourse of rights to the discourse on citizenship.321

In the traditional account, the two categories of rights also differ in relation to the task that the State has in order to secure them. On the one side, the civil and political rights entail the non-intervention of the State, which shall abstain from interfering

317 Brian Bercusson, “The European Community’s Charter of Fundamental Rights of the Workers”

(1990) 53 The Modern Law Review, 624–42, 626–27.

318 Stefano Giubboni, “Diritti e politiche sociali nella “crisi” europea” (2004) Working Paper 30/2004 C.S. Massimo D’Antona. See also EU Commission, “The new Social Policy Agenda does not seek to harmonise social policies. It seeks to work towards common European objectives and increase co-ordination of social policies in the context of the internal market and the single currency”, COM (2000) 379 final, 7.

319 EU Commission, “Communication from the Commission on the legal nature of the Charter of Fundamental Rights of the European Union” COM (2000) 644 final.

320 See Christian Tomuschat, Human Rights. Between Idealism and Realism (2nd edn, Oxford University Press 2008) 26.

321 The obvious reference is to Thomas H. Marshall, Citizenship and Social Class (Cambridge University Press 1959). Marshall identifies the nineteenth century as the era of the civil and political rights and the twentieth century as the era of socio-economic rights (although overlapping), see Marshall (1959) 14.

in the sphere of freedom of the individual by, for instance, adopting legislation limiting the freedom of speech or the freedom to contract and property. On the other side, the socio-economic rights require the State to undertake specific measures so as to ensure the actual enjoyment of the rights by the individuals, for instance by adopting special legislation tackling the conditions of poverty and unemployment, or creating special agencies in charge of dealing with childhood problems.322 Negative action versus positive action as well as the justiciability before a court mark the traditional divides between the categories of civil and political rights on the one side, and social and labour rights on the other.323

In the academic discourse, such a division has been blurred. For instance, it has been argued that the protection of social rights contributes to a well-functioning market.324 Or it has been stressed that the protection of commonly acknowledged civil and political rights – such as the right not to be tortured and the right to a fair trial – actually requires the State to take positive actions, such as the training of judges and police officers and the establishment of tribunals.325 Moreover, it has been demonstrated that labour rights are as compelling, stringent and universal as human rights.326 Finally, it has been noted that in the context of globalisation, the protection and the promotion of social justice against socio-economic inequalities have become matters related to the rights of citizens to participate in political life.327

Although the discourse on human rights has progressively shifted in order to include socio-economic rights, collective labour rights – freedom of trade union association, the right to organise, the right to collective bargaining and the right to collective action – represent a special category on account of their unique features.

First, collective labour rights are rights that are enjoyed individually but exercised collectively: freedom of trade union association cannot be considered simply as an individual right. In order to be effective, its exercise has to be coupled with the possibility of exercising the right to collective bargaining and the right to collective action, whose exercise, at the same time, presupposes the exercise of the right to freedom of trade union association.328 Second, the exercise of such rights entails the

322 On the issue, see Simon Deakin, Renewing Labour Market Institutions (ILO 2004) 40–42.

323 Tonia Novitz & Colin Fenwick, “The Application of Human Rights Discourse to Labour Relations:

Translation of Theory into Practice” in Tonia Novitz & Colin Fenwick (eds), Human Rights at Work.

Perspectives on Law and Regulation (Hart 2010) 1–38, 8.

324 Simon Deakin, “Social Rights in a Globalized Economy” in Philip Alston (ed), Labour Rights as Human Rights (Oxford University Press 2005) 25–60.

325 Virginia Mantouvalou, “Are Labour Rights Human Rights?” (2012) 3 European Labour Law Journal, 151–72.

326 Hugh Collins, “Theories of Rights as Justifications for Labour Law” in Davidov & Langille (2013) 135–55, 140–44. See also Mantouvalou (2012) 163.

327 Novitz (2003) 45.

328 In this sense Leader identifies the definition of the right to freedom of association at the crossroads between the collectivistic thesis and the individualistic thesis. See Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory (Yale University Press 1992) 31.

breakdown of others’ civil and political rights, including the individual rights of the trade union members: as noted by Barbalet, a ‘trade union can only function properly if the rights of their individual members are subordinate to the rights of the collectivity, and in their operation they frequently infringe the rights of property and contract by preventing manufacture and trade through strike action’.329 Therefore, the exercise of collective labour rights implies the limitation of other rights, which can prove problematic in the context of liberal democracies. Third, their exercise does not relate to the relationship between the State and the individual, but rather to the relationship between two private parties – the workers and their organisations and the employers. In this regard, Marshall notes that ‘trade unionism has, therefore, created a secondary system of industrial citizenship parallel with and supplementary to the system of political citizenship’.330 Collective labour rights thus pertain to a sphere that – in theory – lies outside the State’s reach, pertaining to social dynamics between private parties in the economic realm. Fourth, the exercise of collective labour rights requires the State to remain neutral in labour disputes, in order not to hamper the autonomy of the parties. But at the same time, the State is called on to ensure the conditions for the autonomous and voluntary exercise of the collective labour rights by, for instance, putting in place a machinery for collective bargaining or protecting the right to strike. Fifth, for the organised workers, the exercise of collective labour rights has the socio-economic objective of improving their working and employment conditions, but it also has a civil and political aim in promoting the democratisation of the workplace and the participation of the workers in the life of a country.331

Despite such conceptual features that make collective labour rights unique, in the legal discourse they have been traditionally relegated to the sphere of socio-economic rights mainly as a result of the different nature and status of the instruments in which they are enshrined. For instance, the UN system distinguishes between civil and political rights and socio-economic rights, respectively enshrined in the International Covenant on Civil and Political Rights (ICCPR) and in the International Covenant on Economic, Social and Cultural Rights (ICESR), both adopted in 1966. Similarly, the Council of Europe initially adopted the ECHR in 1950 and later accompanied it with the ESC in 1961.332

329 Jack M. Barbalet, Citizenship: Rights, Struggle, and Class Inequalities (University of Minnesota Press 1988) 26.

330 Marshall (1959) 44.

331 Novitz (2003) 57.

332 Also in the context of the Organisation of American States there is a different classification of human rights and socio-economic rights: the American Convention of Human Rights (ACHR, 1969) was only later supported by a socio-economic rights document, such as the Additional Protocol in the area of Economic, Social and Cultural Rights (known as the Protocol of San Salvador), adopted in 1988. See Tonia Novitz, “Protection of Workers Under Regional Human Rights Systems: An Assessment of Evolving and Divergent Practices” in Novitz & Fenwick (2010) 409–38, 418–21. A different discourse should be used in reference to the African Charter of Human and People’s rights,

The freedom of trade union association constitutes a fundamental exception. For instance, the Universal Declaration of Human Rights includes the right to form and join a trade union among the labour rights enshrined in its Art. 23, while Art. 22 of the ICCPR mentions the right to form and join a trade union for the protection of interests as part and parcel of a broader freedom of association. A more detailed articulation appears in the formulation of Art. 8 of the ICESCR, which, along with the freedom of trade union association for the individuals in order to promote and protect their social and economic interests, also mentions the right of trade unions to establish national federations and confederations that have the right to form and join international trade union organisations. Moreover, the Covenant states that union membership can only be subject to the internal rules of the organisations and that the right of trade unions to function freely can only be limited by restrictions that are necessary in a democratic society.333

The clear-cut distinction between human rights and socio-economic rights has progressively faded away in the wake of the process of revitalisation that the ILO has experienced in aftermath of the end of the Cold War, when the traditional and ideological association of the social and labour rights with the socialist values expressed by the Eastern Bloc has been diluted.334 Based on a conceptualisation of the most effective and fundamental labour rights, the ILO Declaration on Principles and Rights at Work adopted in 1998 has enshrined freedom of association and the right to collective bargaining as one of the four ‘core labour rights’, which would ensure the freedom of individuals within the realm of the employment relationship.335 A few years after the adoption of the ILO Declaration, the Inter-American Court of Human Rights, in a case concerning mass dismissals in reprisal of a strike organised by public sector unions in Panama, reached the conclusion that

‘in trade union matters, freedom of association is of the utmost importance for the defence of the legitimate interests of the workers, and falls under the corpus juris of human rights’.336

which already in 1981 included in the list of human rights traditional socio-economic rights such as the right to work, the right to health and the right to education. But it does not include collective labour rights, see Christian Jr. Kabange Nkongolo, “The Justiciability of Socio-economic Rights under the African Charter on Human and People’s Rights: Appraisal and Perspectives Three Decades after its Adoption” (2014) 22 African Journal of International and Comparative Law, 492–511.

333 Sarah Joseph, “UN Covenants and Labour Rights” in Novitz & Fenwick (2010) 331–58, 348–52;

see the overview of the different human and social rights instruments on the right to collective bargaining in Patrick Macklem, “The Right to Bargain Collectively in International Law: Workers’

Right, Human Right, International Right?” in Alston (2005) 61–84.

334 Philip Alston, “‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime” (2003) 15 European Journal of International Law, 457–521, 463.

335 Brian A. Langille, “Core Labour Rights – The True Story (Reply to Alston)” (2005) 16 European Journal of International Law, 409–37, 429.

336 I/A Court of H.R., Case Baena Ricardo et al. v. Panama, Judgement of February 2, 2001, Serie C No. 72, para 158.

In conjunction with the developments within the ILO, the trade union movement has also started a lobbying campaign at both global and local levels, which has favoured the progressive convergence between the human rights discourse and social rights discourse as regards the protection and exercise of collective labour rights.337 Trade unions have started to base their claims for the protection against violation of trade union rights on human rights arguments, while at the same time adopting a litigation strategy that is traditionally more familiar to the human rights movements.338 The ‘paradox’ of maintaining a strict separation between the two tracks has been overcome in favour of a merged approach in which labour rights are considered a fundamental tool for achieving democracy and social justice – as already stated in the ILO Constitution.339

The acme of the discourse on collective labour rights as human rights has been reached in more recent years. On the one side, the strategy of trade unions to litigate collective labour rights violations before human rights courts has allowed the European Court of Human Rights to adjudicate collective labour rights on the basis of the ECHR by undertaking an integrated approach taking into consideration social rights instruments, including the ILO Conventions and the ESC.340 On the other side, the restrictive effects on the exercise of collective labour rights of the measures adopted by several governments as responses to the adverse effects of the economic crisis have been challenged on the basis of the global standards recognising collective labour rights as human rights.341 In both cases, the result is the progressive emergence of the acknowledgement of collective labour rights as global rights. This achievement might constitute a first step towards the recognition of global collective labour rights as sources for a right to collective autonomy based on freedom of trade union association, the right to organise, the right to collective bargaining and the right to collective action.

337 See Lance Compa, “Labor’s New Opening to International Human Rights Standards” (2008) 11 Working USA: The Journal of Labor and Society, 99–123; Judy Fudge, “Labour Rights as Human Rights: Turning Slogans into Legal Claims” (2014) 37 The Dalhousie Law Journal, 601–20.

338 In critical terms, see Guy Mundlak, “Human Rights and Labor Rights: Why don’t the two tracks meet?” (2012) 34 Comparative Labor Law & Policy Journal, 217–43, 226. For an even more critical account, see Jay Youngdahl, “Solidarity First. Labor Rights are not the Same as Human Rights” (2009) 18 New Labor Forum, 31–37.

339 Virginia A. Leary, “The Paradox of Workers’ Rights as Human Rights”, in Lance Compa & Stephen S. Diamond (eds), Human Rights, Labor Rights, and International Trade (Pennsylvania University Press 1996) 22–47.

340 See Klaus Lörcher, “The New Social Dimension in the Jurisprudence of the European Court of Human Rights (ECtHR): The Demir and Baykara Judgement, its Methodology and Follow-up” in Filip Dorssemont & Klaus Lörcher & Isabelle Schömann (eds), The European Convention on Human Rights and the Employment Relation (Hart 2013) 3–46.

341 See Niklas Bruun, “Legal and Judicial International Avenues: The ILO” in Bruun & Lörcher &

Schömann (2014) 243–64.