The Dramatic Implications of Demir and Baykara

摘要

This article discusses the significance of the landmark decision of the European Court of Human Rights (ECtHR) in Demir and Baykara v Turkey, which reversed earlier jurisprudence to hold (i) that the right to collective bargaining is ‘an essential element’ of the right to freedom of association in Article 11 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and (ii) embedded the jurisprudence of the International Labour Organisation and the European Social Charter into that right. The authors examine the ECtHR's extension of the Demir and Baykara principle to include collective action and review the Strasbourg court's jurisprudence generally on the right to strike. Full consideration is given to (i) the treatment of these developments by the English courts in Metrobus Ltd v UNITE the Union and EDF Energy Powerlink Ltd v RMT and (ii) their wider implications not only for British but also for European Union (EU) labour law. The authors consider the apparent collision between the trade union rights established under the ECHR in Demir and Baykara and the trade union liabilities introduced under EU law by the Viking and Laval judgments of the European Court of Justice, taking into account some significant issues that arose in the BALPA v British Airways litigation in 2008.