Last Updated on August 2, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 2451/16
ASSOCIATION OF ACADEMICS
against Iceland
The European Court of Human Rights (Second Section), sitting on 15 May 2018 as a Chamber composed of:
Paul Lemmens, President,
Robert Spano,
Ledi Bianku,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 21 December 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, the Association of Academics (Bandalag háskólamanna), is an association of trade unions of university graduates in Iceland. It filed an application before the Court on behalf of 18 of its member unions, many in the health care sector, for example biomedical scientists, radiographers, midwives and natural scientists. The members of the unions are employed by the State and are therefore public servants. The unions represent their members, inter alia, in collective bargaining. The applicant association was represented before the Court by Mr Ástráður Haraldsson, a lawyer practising in Reykjavík.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant association, may be summarised as follows.
3. In December 2014 collective bargaining commenced between individual member unions and the Icelandic State. On 18 February 2015, the member unions authorised the applicant association to represent them in collective bargaining with their employer, the Icelandic State, and nominated 1-2 persons to the applicant association’s negotiating committee.
4. On 28 February 2015 the existing collective agreement between the member unions and the Icelandic State formally lapsed. As the collective bargaining had been unsuccessful up to this point, on 16-19 March 2015, 17 of the 18 member unions voted to take collective action in the form of temporary and long-term strikes.
5. On 26 March 2015 the Icelandic State referred the dispute to the State Conciliation and Mediation Officer (Ríkissáttasemjari) with whom the parties met for the first time on 30 March 2015. Twenty-four meetings were held between the parties, to no avail.
6. In April 2015, eight of the member unions commenced strike action for an unlimited time. Nine other unions took part in a four-hour strike action on 9 April 2015 and one union commenced a strike for an unlimited time on 2 June 2015. Unconnected to the applicant association, the Icelandic Nurses’ Association commenced a strike for an undefined period on 27 May 2015. The member unions’ strike actions lasted between 11 and 67 days, until legislative measures were implemented (see paragraph 8 below).
7. At the same time, collective bargaining between employers and multiple other unions was taking place. On 29 May 2015 the SA Confederation of Icelandic Enterprise (Samtök atvinnulífsins) concluded collective agreements with several other unions. These agreements contained clauses that provided for possible termination of the agreements if other collective agreements were concluded with significant divergences in this regard. On 22 June 2015 more collective agreements were concluded between the SA Confederation of Icelandic Enterprise and several other unions.
8. On 13 June 2015, the Icelandic Parliament passed Act No 31/2015 on Matters Concerning the Employment Terms of the Members of Certain Unions within the Association of Academics and the Icelandic Nurses’ Association (Lög um kjaramál félagsmanna tiltekinna stéttarfélaga innan Bandalags háskólamanna og félags íslenskra hjúkrunarfræðinga, hereafter “the Act”). The Act prohibited, as of 14 June 2015, strike actions by the 18 unions, further work stoppages or any other measures designed to compel an arrangement to end the labour dispute which differed from the provisions of the Act. The Act also stipulated that if a collective agreement between the parties was not signed by 1 July 2015, an arbitration tribunal would be appointed and by 15 August 2015 it should determine the wages and employment terms of the union members, the decisions being binding as a collective agreement upon the parties. According to the Act, the tribunal’s decision was intended to be binding from the date of entry into force of the Act until a date determined by the tribunal. Article 3 of the Act stated that when deciding on the wages and employment benefits of the union members, the tribunal should take into account wages and benefits of persons of comparable education, duties, working hours and responsibilities and, as appropriate, collective agreements that had been signed since 1 May 2015 and the general evolution of employment terms in Iceland.
9. As negotiations between the parties did not result in a collective agreement by 1 July 2015, an arbitration tribunal was appointed by the Supreme Court. On 14 August 2015 the tribunal issued its decision, prolonging the validity of the existing collective agreements until 31 August 2017, with certain amendments to union members’ wages and employment terms.
10. In the meantime, on 22 June 2015, the applicant association challenged the Act before the District Court of Reykjavík with reference to Article 74 of the Icelandic Constitution, interpreted in the light of Iceland’s international obligations, including Article 11 of the Convention. The applicant requested a declaratory judgment to the effect that, regardless of the provisions of the Act, the 18 member unions could take collective action in conformity with the applicable legislation (the Act on Collective Agreements of Public Servants). Furthermore, it requested that the wages and terms of employment of union members should not be determined by the arbitration tribunal.
11. On 15 July 2015, the District Court found for the Icelandic State. The court found that the Icelandic Constitution, interpreted in the light of the Convention, the Court’s case law and other international obligations protected the right to strike. However, it found that the right was subject to restrictions which had to be prescribed by law, have the legitimate aim of being in the public interest or to protect the right of others, and lastly it had to be necessary and proportionate to the legitimate aim pursued. The court then noted that the parties agreed that the restriction had been prescribed by law. The court stated that, in the legislator’s view, the restriction had the legitimate aim of being in the public interest. The reasons had been clearly set out in the preparatory work for the Act and had been supported by documents about the effects of the strike on health care institutions and the economic stability of the country. The strikes had been on-going for up to 67 days and there was no solution in sight. The court agreed that the restrictions had the legitimate aim of being in the interest of public safety and were proportionate to the aim pursued. The District Court further found that it was in conformity with Article 74 of the Constitution and the principles of equal treatment and proportionality to have all the 18 unions subject to the same measures, as the unions had decided to put forth their claims jointly and have a common negotiation committee. Lastly, relying on a previous precedent from the Supreme Court concerning similar legal provisions, the District Court found that the arbitration procedure did not constitute a disproportionate interference with the rights and freedoms of the member unions and their members.
12. On appeal, on 13 August 2015, the Supreme Court also found for the Icelandic State. Firstly, the court referred to its jurisprudence, specifically to a previous precedent in a case concerning similar provisions, and noted that Article 74 of the Constitution had been interpreted, inter alia, in accordance with Article 11 of the Convention, as protecting the right of trade unions to safeguard and promote the interests of their members, including wages and other employment terms. As the right to strike was a recourse provided for by law to apply pressure for the conclusion of collective agreements, the provision also applied to this right. However, this right could be restricted in accordance with the law, if this was necessary in a democratic society and in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others. The court then referred to the second clause of the second paragraph of Article 11 of the Convention and stated that it had to be considered that the applicant association’s union members might have to tolerate more restrictions than other individuals to whom this rule did not apply. However, in the light of the fact that the employer was the State itself, governed by cabinet ministers representing the majority in the Parliament that enacted the law in question, it was necessary to make stricter demands for it to be demonstrated that the conditions for restricting the applicant association´s union members rights were fulfilled.
13. The Supreme Court noted that it was not disputed between the parties that the restrictions were prescribed by law. However, it was disputed whether the restrictions pursued a legitimate aim and were necessary in a democratic society.
14. As to the aim of the interference, the Supreme Court first referred to the government’s arguments about the economic consequences of accepting the member unions’ wage demands. The court noted that the alleged consequences were supported by little evidence, although it was clear that they would be substantial and could affect public safety. However, this could not be the main argument for the restrictions, but could be included in the overall assessment.
15. Then the Supreme Court examined the documentary evidence which consisted mainly of several letters between domestic health care institutions, the Directorate of Health and the Minister of Health. The letters portrayed the considerable effects of the strikes on the operation of the health care institutions and their ability to provide acceptable services and secure the safety of patients. The Supreme Court emphasised that these letters and the statements about the serious situation were supported by data collected from the institutions in question and included numerical information on the extent of the disruption of their services. This information demonstrated, in the Supreme Court’s view, that the services which the hospitals were able to provide, due to the exceptions granted from the strike actions in accordance with the Act on Collective Agreements of Civil Servants, were inadequate to prevent a serious threat to public safety. The court also noted that this situation not only threatened public safety but also the rights of everyone in need of health care, which the Icelandic State was required to provide according to the Constitution.
16. As to the necessity of the restrictions, the Supreme Court first noted that when the Act entered into force, the member unions’ strikes of indefinite duration had lasted from 11 to 67 days and there had also been a strike of limited duration by 12 member unions. Furthermore, the judgment gave the following reasons:
“…, joint negotiation of the [applicant’s association member unions] and the [Icelandic State] on employment terms commenced on 18 February 2015 and 24 conciliation meetings were held under the auspices of the State Conciliation and Mediation Officer, to no avail. Therefore, the [union members] in fact exercised in full their rights under Article 74 (1) of the Constitution, to entrust a trade union with the protection of their interests and to apply active pressure in order to exercise their freedom of negotiation as regards wages and employment terms. It should also be kept in mind that this freedom was not limited immediately when the Act entered into force.
When the rights mentioned were restricted by [the Act], it can be considered that all attempts to conclude the dispute with collective agreements had been exhausted, and [the Icelandic State] could, in the light of the foregoing, regard it as its duty, for economic reasons, to protect public safety by not concluding collective agreements with [the member unions] that could compromise the extensive collective agreements concluded with others. Consequently, [the Icelandic State] could justly consider legislation necessary in order to bring this employment dispute to an end, which, as stated above, involved a threat to public safety and affected the constitutionally protected rights of others, as it cannot be seen that any other measures were available.”
17. As regards the proportionality of the measures, the Supreme Court first noted that it was, inter alia, disputed between the parties whether the Act had been proportionate as applied to all the member unions and not just the eight member unions on strike at the time the Act was passed by the Parliament. Furthermore, the judgment set out the following reasons:
“The 18 member unions of [the applicant association], which the case concerns, chose to exercise their rights under Act no 94/1986 [Act on Collective Agreements of Public Servants] to present claims against [the Icelandic State] and conduct negotiations with it jointly, negotiations, as already mentioned, commencing on 18 February 2015. Article 74 (1) of the Constitution must be interpreted as protecting the right of the members of trade unions to decide, within the limits of law, on their internal organisation and their operations, as well as their autonomy in their own affairs, which includes the right to decide whether two or more unions jointly conduct collective bargaining and resort to measures in that respect in order to pursue their members’ interests. This right had to be respected when [the Act] was passed. It is also clear from the case documents described above that the applicant association’s member unions not only chose to present their claims against [the Icelandic State] and negotiate with it jointly, but also jointly took various measures to apply pressure in order to promote a solution of the dispute, such as by consulting on exercising their right to strike, and through a common fund they jointly bore the costs arising from the strikes of the members of individual unions, which included compensating for the loss of income. It is also clear that these measures, including the strike of individual unions at various institutions of [the Icelandic State], were intended to apply pressure to conclude collective agreements with all of them. Bearing this in mind, legislation that had only applied to the [member unions] on strike at the time it entered into force, would not have prevented other member unions from resorting to similar measures instead, for the benefit of the whole. It should also be kept in mind that [the Act] did not only prohibit strikes and other measures by the 18 unions, but also laid down a particular arrangement that would take the place of collective agreements concluded with them. In this regard the same situation applied to all the unions who had chosen to stand together in the dispute with [the Icelandic State] and had undertaken not to conclude a collective agreement with it without consulting the joint negotiation committee of the [applicant association’s member unions]. In the light of all of the above, it is not possible to conclude that Act No. 31/2015 went further than was reasonable and thereby breached the constitutional principle of proportionality.”
18. Lastly, the Supreme Court pointed out that there were precedents for the procedures set out in Articles 2 and 3 of the Act to resolve employment disputes. Moreover, the court noted that the Act did not in any way prevent the tribunal from being appointed in such a way that the parties would not have influence on the tribunal. The Supreme Court also stated that, although Article 3 of the Act listed certain grounds which the tribunal should take into consideration, it did not bind the tribunal in a manner leading to the applicant association’s demands being accepted. The court further noted that, although in Article 2 the tribunal was given discretion to decide the period of validity of its decision which was unfortunately too wide, that could not lead to the conclusion that the provisions of the Act should be disregarded. In this respect the court pointed out that the tribunal had not completed its task and issued its decision. The applicant association could easily try to have the decision overruled before the domestic courts if it considered that the tribunal had misused the discretion afforded to it.
B. Relevant domestic law
19. The relevant provisions of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) read as follows:
Article 74
“Associations may be formed without prior permission for any lawful purpose, including political associations and trade unions. An association may not be dissolved by administrative decision. The activities of an association found to be in furtherance of unlawful objectives may however be enjoined, in which case legal action shall be brought without undue delay for a judgment dissolving the association.
No one may be obliged to be a member of any association. Membership of an association may, however, be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.
People are free to assemble unarmed. Public gatherings may be attended by police. Public gatherings in the open may be banned if it is feared that riots may ensue.”
Article 75
“Everyone is free to pursue the occupation of his choosing. This right may, however, be restricted by law, if such restriction is required with regard to the public interest.
The right of people to negotiate terms of employment and other labour-related matters shall be regulated by law.”
20. The relevant provisions of Act No. 31/2015, on Matters concerning the Employment Terms of the Members of Certain Unions within the Association of Academics and the Icelandic Nurses’ Association (Lög um kjaramál félagsmanna tiltekinna stéttarfélaga innan Bandalags háskólamanna og Félgs íslenskra hjúkrunarfræðinga), read as follows:
Article 1
Prohibition of Work Stoppages
“The strike actions of the member unions of the Association of Academics, and their individual members, who have been jointly engaged in negotiation on wages and other claims collectively made against the Minister of Finance and Economic Affairs on behalf of the State Treasury, and any further work stoppages or other measures designed to promote a labour dispute arrangement different from what this Act provides for, are prohibited from the entry into force of this Act and throughout the duration of decisions made by an arbitration tribunal as provided for in Article 2, if it is appointed. The member unions to which the first sentence applies are the Icelandic Veterinary Association, the Icelandic Society of Radiographers, the Association of University Graduate Ministry Employees, the Icelandic Social Science Association, the Icelandic Musicians’ Union (the Association of the Employees of the Icelandic Symphony Orchestra), the Icelandic Actors’ Association, the Union of Natural Scientists in Iceland, the Icelandic Association of Biomedical Scientists, the Icelandic Physiotherapy Association, the Icelandic Association of Social Workers, the Union of University Graduates, the Icelandic Occupational Therapy Association, the Icelandic Midwives’ Association, the Icelandic Psychology Association, the Union of Library and Information Scientists, the Union of Food and Nutrition Scientists, the Union of Lawyers and the Association of Social Educators.
The provision of the first paragraph shall also apply to the Icelandic Nurses’ Association and its members.
Notwithstanding the provisions of the first and second paragraphs the parties may settle on an arrangement different from what is provided for in this Act, however, work stoppages cannot be resorted to in order to enforce such arrangements.”
Article 2
Institution of an Arbitration Tribunal
“If the parties, specified in Article 1, have not signed a collective agreement prior to 1 July 2015, the Supreme Court of Iceland shall nominate three persons to form an arbitration tribunal, which determines, prior to 15 August 2015, the wages and employment terms of the members of the unions listed in Article 1. The decisions of the arbitration tribunal shall be binding upon the parties as a collective agreement from the date this Act enters into force, and apply for the period determined by the arbitration tribunal. A final settlement of wages shall take place no later than one month after the decision of the arbitration tribunal has become available.
…
… The parties shall be entitled to explain their views to the arbitration tribunal. …”
Article 3
Decisions of the Arbitration Tribunal
“When deciding on wages and other employment terms of the individual members of the unions listed in Article 1, the arbitration tribunal shall take into consideration the employment terms of persons with comparable education, duties, working hours and responsibilities, and, as appropriate, the collective agreements that have been signed as of 1 May 2015 and the general evolution of employment terms in Iceland. When taking its decisions, the tribunal shall also consider economic stability.
The parties to the labour dispute agree on any substantial issues, without desiring to conclude a settlement in court, the arbitration tribunal shall take this into consideration in its decision, however retaining its discretion as regards the arrangements.
The arbitration tribunal may encourage the parties to conclude an agreement or settlement in court of the same legal effect as its decisions, either as regards individual provisions or a comprehensive agreement between them, in which case the arbitration tribunal shall not decide on the matter to which the agreement or settlement applies.”
COMPLAINT
21. The applicant association complained that by passing the disputed Act, restricting the right to strike and imposing compulsory arbitration on the member unions, the Government rendered the applicant’s member unions’ right to protect the interest of their members illusory and restricted the rights and freedoms of all the member unions under Article 11 of the Convention in an unjustified and disproportionate manner. In the alternative, it complained that the Government restricted the rights and freedoms under Article 11 of the Convention of the member unions that were not, at the time, engaged in collective action. It further submitted that the Supreme Court, when upholding the disputed Act, did not examine the case in accordance with the case-law of the Court.
THE LAW
A. General principles
22. Article 11 of the Convention reads:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
23. The Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 140, ECHR 2008, with further references). The substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance (ibid., § 144). The essential elements of the right of association have been established as (ibid., § 145): the right to form and join a trade union; the prohibition of closed-shop agreements; the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and (ibid., § 154) the right to bargain collectively with an employer. This list is not exhaustive (ibid., § 146). On the contrary, it is subject to evolution depending on particular developments in labour relations.
24. So far the Court has not found that the taking of industrial action should be accorded the status of an essential element of the Article 11 guarantee (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 84, 8 April 2014), but it is clear that strike action is protected by Article 11 as it is considered to be a part of trade union activity (ibid., § 77). Yet the fact that the process of collective bargaining and industrial action, including strike actions against the employer of the union members who were the subject of the dispute, does not lead to the outcome desired by the union and its members does not mean that the exercise of their Article 11 rights is illusory. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement. Nor does the right to strike imply a right to prevail. As the Court has often stated, the Convention requires that under national law trade unions should be able, in conditions not at variance with Article 11, to strive for the protection of their members’ interests ( ibid., § 85).
25. To be compatible with paragraph 2 of Article 11, the interference must be shown to be “prescribed by law”, to pursue a legitimate aim, and to be “necessary in a democratic society” to achieve those aims (see, among many others, ibid., § 78). To be considered necessary in a democratic society, it must be shown that an interference with a right protected by Article 11 corresponded to a “pressing social need”, that the reasons given by the national authorities to justify it were relevant and sufficient and that the interference was proportionate to the legitimate aim pursued (see, ibid., § 83). Regard must be had to the fair balance to be struck between the competing interest of the individual and of the community as a whole. Since achieving a proper balance between the interest of labour and management involves the sensitive character of social and political issues, the Contracting State must be afforded a margin of appreciation as to how trade union freedom and protection of the occupational interest of union members may be secured, given the high degree of divergence between the domestic systems in this field. The breadth of the margin will still depend on the factors that the Court, in its case-law, has identified as relevant, including the nature and extent of the restriction on the trade union right at issue, the object pursued by the contested restriction and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground between member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the apposite international instruments (see, ibid., § 86).
26. The Court points out that it found a violation of Article 11, inter alia, in the following cases:
Dilek and Others v. Turkey (nos. 74611/01 and 2 others, 17 July 2007) concerning public sector workers on fixed-term contracts who had taken part in union actions allowing motorists to drive past toll barriers without paying, and had been ordered to pay damages in civil proceedings. The Court noted, in particular, that the Turkish Government had not indicated that there were other means for public servants to defend their rights. However, only “convincing and compelling reasons” could justify restrictions on trade union rights in the public sector.
Demir and Baykara v. Turkey (cited above) concerning the annulment with retroactive effect, almost three years after its conclusion, of the collective agreement entered into by a trade union following collective bargaining with the administration, and the prohibition on forming trade unions imposed on the applicants, municipal civil servants. The Court noted that the collective bargaining agreement between the union and the town council was the principal or even the only means by which the union could promote and defend the interests of its members.
Enerji Yapı-Yol Senv. Turkey (no. 68959/01, 21 April 2009) concerning disciplinary measures taken against public sector workers who had participated in a one-day national strike for the recognition of their right to a collective agreement. The Court found that the adoption and application of the impugned circular – which, inter alia, prohibited public sector employees from taking part in a national one-day strike organised in connection with events planned by the Federation of Public Sector Trade Unions to secure the rights to a collective bargaining agreement – did not answer a “pressing social need” and that there had therefore been a disproportionate interference with the applicant union’s rights. The Court acknowledged that the right to strike was not absolute and could be subject to certain conditions and restrictions. However, while certain categories of civil servants could be prohibited from taking strike action, this did not extend to all public servants. In this case the circular had been drafted in general terms, completely depriving all public servants of the right to take strike action.
Hrvatski liječnički sindikatv. Croatia (no. 36701/09, § 59, 27 November 2014) concerning a ban on strike action by a trade union of medical practitioners who wished to put pressure on the Croatian Government in order to enforce an annex to a collective agreement. After a round of collective bargaining, the union announced it was going on strike. Before the strike started, the national courts banned the applicant trade union from holding a strike and the applicant was, therefore, not able to go on strike. Later the annex was declared null and void. The Court found that there had been a violation of Article 11 as the union had not been allowed to strike at all to put pressure on the Government for the same level of employment‑related rights as the Government had already agreed upon in the annex.
27. The Court found no violation of Article 11, inter alia, in Federation of Offshore Workers’ Trade Unions and Others v. Norway((dec.), no. 38190/97, ECHR 2002‑VI). The Court noted that the ban on striking had been implemented after the trade union members had been allowed to exercise their right to strike for 36 hours. The strike had been preceded by collective bargaining and compulsory mediation between the union and the relevant industrial partners, neither of which had borne fruit. Thus, before the ban was imposed, the trade union members had enjoyed several means of protecting their occupational interests. These included collective bargaining, compulsory mediation and strikes.
National Union of Rail, Maritime and Transport Workers v. the United Kingdom (cited above) concerning a statutory ban on secondary strike action. The Court noted that the applicant union had in fact exercised two of the elements of freedom of association which have been identified as essential, namely the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and the right to engage in collective bargaining.
Trade Union in the Factory ‘4th November’ v. the Former Yugoslav Republic of Macedonia ((dec.), no. 15557/10, 8 September 2015) concerning strike action by a union in a factory. A judgment to declare the strike action unlawful was issued after the applicant union’s members had exercised their right to strike for approximately six months. The Court noted that the judgment did not prohibit the right to strike as such, and found that it was not disproportionate.
B. The application of these principles in the present case
28. Before the domestic courts, it was not disputed between the parties that the restrictions on the member unions’ strike actions and the imposition of compulsory arbitration constituted an interference with their right to freedom of association, nor was it disputed that the interference was prescribed by law. As to the aim of the interference, the Supreme Court concluded that the restrictions pursued the legitimate aim of being in the interest of public safety and for the protection of the rights of others (see, Federation of Offshore Workers’ Trade Unions and Others v. Norway, cited above). The Court sees no reason to disagree.
29. It remains to be determined whether the restrictions on strike action and the imposition of compulsory arbitration can be regarded as “necessary in a democratic society” in the circumstances of the present case.
30. When the Supreme Court assessed the necessity of the impugned measures, it evaluated the situation in the hospitals and health care services affecting patient care due to the strike action by looking at evidence and documents from the health care institutions, supported by statistical data. It concluded that there had been a serious threat to public safety and the rights of others, namely the right to health care, which were their constitutional rights. The Court sees no reason to question the Supreme Courts’ assessment.
31. Furthermore, in the present case the applicant association’s member unions did in fact exercise two of the elements of freedom of association that have been identified as essential, namely the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members and the right to engage in collective bargaining. The applicant association, on behalf of its member unions, started negotiations with the Icelandic State in February 2015. Moreover, after the dispute had been referred to the State and Conciliation and Mediation Officer on 26 March 2018, the parties had 24 meetings to try to reach an agreement. Additionally, Article 2 of the Act did not restrict the member unions’ right to collective bargaining immediately, when it entered into force on 14 June 2015. The parties had until 1 July 2015 to reach an agreement, before the process provided for in the Act would be instigated. Furthermore, the applicant association’s union members were able to take strike action for between 11 and 67 days before they were restricted by the Act. The Supreme Court took all these factors into account when balancing the competing interest in the case. In its opinion the parties had thus exhausted all attempts to conclude the dispute with a collective agreement at the time the Act was passed by the Parliament (see paragraph 16 above).
32. The Court sees no reason to call into question the finding made by the Supreme Court that all attempts to bring the dispute to an end by negotiations could be regarded as exhausted at the time when the disputed Act was enacted. Furthermore, although the process of collective bargaining and strike action did not lead to the outcome desired by the applicant’s member unions and their members, this does not mean that their Article 11 rights were illusory (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, cited above, § 85).
33. As regards the fact that the disputed Act applied to all of the applicant association’s member unions, and not only to the unions on strike at the time the Act was passed, the Supreme Court concluded that it was not a disproportionate measure as the associations had themselves decided to negotiate jointly and take various measures collectively in order to apply further pressure on the opposing party. If the legislation had only applied to the unions already on strike, it would not have prevented other unions from employing measures of the same kind for the benefit of the whole. Thus, the Supreme Court concluded that the disputed Act did not go further than necessary in this respect (see paragraph 17 above). In the light of the present case the Court sees no reason to disagree with the Supreme Court’s conclusion.
34. The Court finds that in the circumstances of this case, with regard to the overall reasoning of the Supreme Court, the court evaluated the evidence presented in the case and weighed the interests at stake by applying the principles laid down in the Court’s case-law. The Supreme Court acted within its margin of appreciation and struck a fair balance between the measures imposed and the legitimate aim pursued.
35. In the light of the above, the Court concludes that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 June 2018.
Stanley Naismith Paul Lemmens
Registrar President
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