Right to take collective action

The right to take collective action is a fundamental workers’ right. This right involves the recognition of the right to take collective action in cases where there is a conflict of interests, including strike action. Like the right to information and consultation, the right to collective action arises from the promotion and practice of social dialogue.

At EU level, this right is provided for in Article 28, ‘Right of collective bargaining and action’, of the Charter of Fundamental Rights of the European Union:

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 interests, to take collective action to defend their interests, including strike action.

The same actors who enjoy the rights to negotiate and conclude collective agreements have ‘the right... to take collective action..., including strike action’. This formulation can be read as recognising the right to strike. If collective action includes strike action, and the former is qualified as a right, then the latter must also be a right.

The right in Article 28 is qualified by the question of which ‘conflicts of interest’ give workers and employers, or their respective organisations, the right to take collective action ‘to defend their interests’. In the absence of any specific limitations, Article 28 seems to cover all kinds of interests, including, in principle, economic and political interests.

As to what is included within the scope of ‘collective action’, the general expression ‘right… to take collective action’ appears to embrace all types of action aimed at self-help, which arise in cases of conflicts of interest. It would therefore include ‘secondary action’, which is currently declared unlawful in some Member States, such as the UK.

Article 52 of the Charter of Fundamental Rights of the European Union allows for limitations, but these ‘must be provided for by law and respect the essence’ of the right to collective action. Further, they are ‘subject to the principle of proportionality’ and must be ‘necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of other’. The question may arise of potential conflict between the right to collective action and other rights under Community law, such as the right of establishment or free movement of goods (Monti Regulation).

In partial response to potential conflicts between the EC law on free movement of goods and collective industrial action, Council Regulation No. 2679/98 (the Monti Regulation) provides protection for fundamental rights in national law to take collective action ‘including the right or freedom to strike’. The regulation reflects a policy choice: the EU must respect the exercise of fundamental rights and freedoms of collective action at national level. It remains to be seen whether the same choice will be made in the interpretation of the right to take collective action in the EU Charter.

The EU Charter appears to make an important distinction regarding the levels at which the rights in Article 28 can be exercised. The right to collective bargaining is granted ‘at the appropriate levels’, but this phrase does not qualify the right to take collective action. Article 28, therefore, stipulates no limitation on the levels at which the right to collective action may be exercised.

The effect of the failure to grant the right to collective action ‘at the appropriate levels’ is open to at least two interpretations. First, the qualifying limitation, ‘in accordance with Community law and national laws and practices’ could allow for restrictions, subject to Article 52’s limitations on any such national restrictions; not least, they must ‘respect the essence of rights and freedoms.’ Alternatively, the implication is that collective action is permissible at ‘all levels’, including also at EU level. This would cover cases where the collective industrial action undertaken by a national organisation, or the demands of those taking the collective actions, have an objective, which is international, or is related to the EU.

Finally, those entitled to take collective action include workers or their organisations, and employers or their organisations. The word ‘or’ appears to indicate an alternative, not an exclusion. According to some national constitutions and case law, the right to strike is an individual subjective right, which can be performed only collectively by an association, group or organisation. It is not clear what impact this formulation will have on national contexts where, for instance, only trade unions are entitled to exercise the right to collective industrial action. The consequence would be that workers and employers who are not members of these organisations, or who are members of organisations not recognised by the jurisdiction as trade unions, have no legal right to take collective action.

See also: Charter of Fundamental Rights of the European Union; Community Charter of the Fundamental Social Rights of Workers; collective industrial relations; European Social Charter; EU system of industrial relations; fundamental rights; Monti Regulation; strike action at EU level; transnational industrial action.