European
Labour Law
Lecture 02A
First European document on this item and
until now is the main protection for human rightsin Europe because
- Its wide scope (all MS CoE = ca. 50 countries)
- Forceful supervising mechanism (ECtHR)
- All MS recognised right of individual complaint
2.1. The European Convention onHuman Rights 1
ECtHR
- judges whether there is a violation of the Convention
- may award financial compensation to injured party.
ECtHR can only be seized
- If the alleged violation has been committed by a publicauthority
- If the applicant has exhausted all domestic remedies.
ECtHR is now flooded with cases: 150.000 are waitingjudgement. CoE is now studying measures.
2.1. The European Convention onHuman Rights 2
ECHR contains primarily civil/political rights, not the socialrights (for those the European Social Charter has beenmade). Nevertheless it has relevance for labour.
2 provisions especially have a labour law flavour
Art. 4 – prohibition of slavery and forced labour
Art. 11 – freedom of trade union association
Several provisions have collateral interest for labour law
Art. 6 – Fair trial
Art. 8 – Right to privacy and family life
Art. 9 – Religious freedom
Art. 10 Freedom of expression
Protocol 1 – Right to property
Art. 14 + Protocol 12 – Non discrimination
2.1. The European Convention onHuman Rights 3
Prohibition of slavery and forced labour (Art. 4)
Not particularly actual since slavery had disappearedfrom Europe (1945).
However some phenomenons may be qualified as forcedlabour
- Sanctions against unemployed receivers of socialsecurity benefits refusing to accept work
(rejected in 1983 in Van der Mussele case; new Dutchcase pending)
- Prostitution?
2.1. The European Convention onHuman Rights 4
Freedom of trade union association (Art. 11)
In the narrow sense of this concept:
Decades of ECtHR case law
- Are employers’ organisations covered? Andorganisations of independent persons? And a workscouncils?
- May trade unions refuse the entrance of members?
- May trade union membership be prohibited incidentally
- May a trade union be refused legal parsonality?
- Is there a right not to be member of a trade union?
- How far are workers protected against anti-trade unionbehaviour (Danilenkov)
2.1. The European Convention onHuman Rights 5
Freedom of trade union association (Art. 11)
in the broader sense of the concept
(including the right to collective bargaining and the rightto strike)
Rejected by the ECtHR in its 1970s case law
Recognised by the Court in recent case law
- Demir (right to collective bargaining)
- Enerji (right to strike)
2.1. The European Convention onHuman Rights 6
Fair Trial
Already applied in a Dutch case to certain aspects ofthe procedure before social security tribunals
2.1. The European Convention onHuman Rights 7
Privacy and Family Life (Art. 8)
Already applied on
- a UK case about employment discrimination ofhomosexuals
- a Lithuanian case of a ban on applications forpublic sector and various private sector posts
- a UK case on the collection and storage of personalinformation in the employment relationship throughthe use of telephone, e-mail and internet.
2.1. The European Convention onHuman Rights 8
Religious freedom (Art. 9)
- Already applied on a case about the right to take leaveon an Islamic feastday.
- Now pending a British case on the right of workers towear a religious symbole at work
- Interesting also two German cases in which theemployer (religious organisation) invoked this right inorder to justify the dismissal of apostate employees
2.1. The European Convention onHuman Rights 9
Freedom of expression (Art. 10)
A very recent case on the dismissal of unionised workerson account of a vulgar cartoon in their trade unionpublication (Paloma)
2.1. The European Convention onHuman Rights 10
Right to property (First protocol)
The Court recognised certain pension rights as property.
In the Netherlands this is highly actual now that thegovernment plans to reduce the rights of futurepensioners.
2.1. The European Convention onHuman Rights 11
Non discrimination (Art. 14 + 12th Protocol)
- In the past this right had only a limited relevance,prohibiting only discriminations with regard to the“enjoyment on the rights and freedoms set forth in theECHR”.
- Now there is the 12th Protocol providing that no oneshall be discriminated against by any public authority onany ground of seks, race, colour, language, religion etc.
- Until now of little relevance as the MS are slow to ratifythis Protocol
2.1. The European Convention onHuman Rights 12
Many of these developments have been made possibleby
- the philosophy of the Court to apply the ECHR as a“living instrument”
- the methodology of the Court to take into account forthe interpretation of the ECHR other internationalstandards and opinions of other supervisory bodies.
All these developments are often applauded by humanrights adepts, but they have also often angered otherlawyers and certain political and social forces.
This has now caused much debate about the role thatthe ECtHR should play, notably in the UK.
2.1. The European Convention onHuman Rights 13