Right of collective bargaining

Article 28 of the Charter of Fundamental Rights of the European Union, entitled ‘Right of collective bargaining and action’, stipulates:

Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interests, to take collective action to defend their interests, including strike action.

The right of collective bargaining enshrined in Article 28 stems from Article 6 of the European Social Charter 1961–1996 and Article 12 of the Community Charter of the Fundamental Social Rights of Workers of 1989. Other international instruments also provide for this right, such as International Labour Organization (ILO) Convention No. 98 of 1949 on the application of the principles of the right to organise and to bargain collectively.

Explicit rights to collective labour negotiation are to be found in the constitutions of some Member States, but otherwise rights of collective bargaining are said to derive from the broad right of association. In providing for a right of collective bargaining, the EU Charter may influence different constitutional texts and have a substantive impact on national legal systems without such rights at a constitutional level. Whatever the constitutional position, the development of collective bargaining in all Member States has produced legal rules regulating collective bargaining and collective agreements, and these will be affected by the fundamental right in the EU Charter.

Article 28 deals with the process of collective bargaining, its outcome, the collective agreement, the actors involved (workers, employers, their organisations) and the ‘appropriate’ levels. Article 28 describes the ‘right of collective bargaining’ as a completed process of two phases: ‘to negotiate and conclude collective agreements’ – in short, all the steps from initiating negotiations to concluding the collective agreement, including the actual negotiations. The European Social Charter (1961, revised 1996) describes the content of the ‘right to bargain collectively’ (Article 6) by listing the obligations to be undertaken by states ‘with a view to ensuring [its] effective exercise’ including active promotion. These may be taken as indicators of the minimum expected of EU Member States. The phrase ‘in accordance with Union law and national laws and practices’ leaves some scope for national rules, subject to review by the European Court of Justice (ECJ).

Right of collective bargaining at EU Level

The right of collective bargaining, recognised by Article 28 of the Charter of Fundamental Rights of the European Union, finds a number of applications at EU level. Moreover, the EU Charter requires the institutions and bodies of the Union to respect all fundamental rights, including the right of collective bargaining.

For instance, Articles 154 and 155 of the Treaty on the Functioning of the European Union (TFEU) envisage a collective bargaining process at EU level, whose final result is a European collective agreement. In this framework, the obligations on ‘the institutions and bodies of the Union’ include promoting consultation, facilitating dialogue, ensuring support, and implementing agreements at the joint request of the signatory parties. It is especially to this process and outcome that the rights recognised by Article 28 must be applied at EU level, with the resulting obligations of the institutions and bodies of the Union.

Collective bargaining and collective agreements have become important in Union labour law in light of the multiple functions they perform. First is the quasi-legislative function assumed by the social partners engaged in collective bargaining at EU level in the form of the social dialogue. This has led to collective agreements given legal effect in the form of directives. In the most recent cases, the agreements on harassment and violence at work (2007) and on inclusive labour markets (2010), the result is not to be embodied in a directive. This will highlight the central issue of its precise legal effect, an issue on which Article 28 may be engaged.

Second, a general model emerging is that the collective agreement may have an important function in facilitating the implementation and application of Union labour law. This takes two forms: collective bargaining and collective agreements are allocated a role in the transposition of Union law into the national laws of the Member States; and they are also allocated a role in the flexibilisation of Union law, allowing for its adaptation to the specific national context of industrial relations and employment practices in each Member State.

Third, collective bargaining and collective agreements are recognised as reflecting fundamental social objectives and values, which are to be protected against competing objectives and values in Union law, in particular, those of competition law. The status of these competing objectives and values in the Treaty does not necessarily indicate which have priority. It may be that Article 28 of the EU Charter, referring to rights ‘in accordance with Union law’, may not confer absolute protection to collective bargaining and collective agreements. In deciding the hierarchy of values and objectives, however, the ECJ may give more weight to the right of collective bargaining recognised in Article 28 in the absence of recognition of competing values (e.g. of competition) in the Charter of Fundamental Rights of the European Union.

The guarantee in Article 28 of the fundamental right of collective bargaining and action may serve to reinforce all these multiple roles of collective agreements. In practice, they may be used to challenge obstacles placed by EU institutions or Member States in the path of the social partners when they are engaged in the process of collective bargaining or wish to secure respect for collective agreements ‘in accordance with Union law’.

See also: Charter of Fundamental Rights of the European Union; Community Charter of the Fundamental Social Rights of Workers; collective industrial relations; European social dialogue; EU system of industrial relations; fundamental rights; international labour standards; social dialogue.