Information Note on the Court’s case-law 258

January 2022

Barış and Others v. Turkey (dec.) - 66828/16, 68492/16, 68886/16 et al.

Decision 14.12.2021 [Section II]

Article 11

Article 11-1

Freedom of association

Dismissal of employees on account of their involvement in a strike organised outside a trade-union context: Article 11 inapplicable ; irrecevable

Facts – 550 employees in a company, including the 32 applicants, carried out a protest action against the conditions in which the collective bargaining agreement concluded between the trade union and their employer had been negotiated, and against the alleged pressure exerted by the employer to join, or not to leave, a trade union in which they no longer had confidence and to which they no longer wished to belong.

The industrial action was not officially initiated by a trade union, but by a large number of employees who resigned en masse from the trade union in question, which had negotiated the previous collective agreement; many of these employees, including the applicants, had decided to join another trade union.

The employer dismissed 50 employees, including the applicants, for having stopped working throughout the strike action, without authorisation or excuse. The dismissed employees applied to the labour courts, alleging unfair dismissal, and seeking reinstatement in their original posts. These courts found in their favour. However, the Court of Cassation, to which the employer appealed, discontinued the proceedings by overturning the labour courts’ judgments. The applicants’ individual applications to the Constitutional Court were unsuccessful.

Law – Article 11: The Court had first to determine the relevant issue, which was not whether individual employees, taking part in unofficial industrial action that was not organised by a trade union, were entitled under national or international law to call or take part in a strike, but rather whether such a right fell within the scope of Article 11.

According to the Court’s established case-law, strike action is, in principle, protected by Article 11 only in so far as it is initiated by trade-union organisations and considered as being effectively – and not merely presumed to be – part of trade-union activity. The Court had never accepted that a strike that was not called by a trade union but rather by that trade union’s members, or even non-members, was also entitled to the protection of Article 11. Similarly, according to the case-law of the European Committee on Social Rights, the fact of reserving the right to strike to trade unions was compatible with Article 6 § 4 of the European Social Charter, provided that setting up a trade union was not subject to excessive formalities.

Although the labour courts had found in favour of the applicants after finding that the employees in question had been dismissed on account of their trade-union activities and that they had called the strike in a peaceful manner to protest against the absence of a genuine right to organise and to join the trade union of their choice, and against the pressure exerted by the employer, the Court of Cassation had dismissed their claims. It had held that the reason for their dismissal was the fact that they had stopped working, unlawfully, in protest against the collective agreement concluded with the trade union. The strike had not been a lawful strike arising from a conflict in the course of the negotiations to conclude a collective agreement.

With regard to the limited number of employees who indicated that they had been protesting against their working conditions, the Court of Cassation had noted that only some of them “had stated that they were using their right to collective action on account of poor working conditions” and “without, however, specifying these poor conditions”.

The Constitutional Court’s reasoning had been along the same lines. It had noted that the strike was not called by the trade union in order to defend the employees’ interests and that certain employees had left the contested trade union and joined another trade union during the strike, and that, in consequence, it was impossible to treat the action in question as trade-union activity. The right to strike was part of the right to organise, but as the action in the present case had not been conducted in the framework of the trade-union organisation, it could not be considered that the termination of the applicants’ employment contracts had breached their right to strike.

The applicants complained that their rights under Article 11 had been breached on account of their dismissal “for taking part in a strike”. They did not therefore allege that their dismissal had been based on their wish to leave their trade union and join another union. The conditions of membership of the trade union formed no part of their action.

Furthermore, the applicants had not followed the procedure laid down in domestic law for the conduct of collective action organised by a trade union.

All of the measures taken by the employer had been related to the employees’ failure to resume working, and not to their membership, or non-membership, of a specific trade union. Thus, the question of whether or not the applicants had been entitled to leave one trade union and join another did not seem to be in issue in the present case.

According to the facts as established by the Court of Cassation, their dismissal had been based on participation in an official strike (that is, not part of trade-union action), rather than on their wish to leave their trade union and join a different one.

On the basis of the evidence in the case file, given that the applicants had not been dismissed for having taken part in a demonstration organised by a trade union, or for having asserted professional rights as part of the activities of a trade union, or for having left a specific trade union, or for having decided not to join a specific trade union, they could not effectively claim a right to the freedom of association that was protected under Article 11.

Conclusion : inadmissible (incompatible ratione materiae ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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