European Court of Human Rights

Mr. G. Balladore Pallieri assumed the office of President of the Chamber in accordance with Rule 21 para. 5.

The Government’s memorial was received at the registry on 17 February and that of the delegates on 26 March 1975.

There appeared before the Court:

- for the Government:

       Mr. H. DANELIUS, Head of the Legal Department

                            at the Ministry for Foreign Affairs,                          Agent;

       Mr. B. HÅRDEFELT, Chief Legal Adviser

                            at the Ministry of Finance,

       Mr. G. NORMARK, Chief Legal Adviser

                            at the National Collective Bargaining Office,

       Mr. O. BERGQVIST, Legal Adviser

                            at the Ministry of Labour,                                      Advisers;

- for the Commission:

       Mr. J.E.S. FAWCETT,                                           Principal Delegate,

       Mr. J. CUSTERS,                                                                 Delegate,

       Mr. F. SCHMIDT, Professor

                            at the University of Stockholm and applicant, assisting the               delegates under Rule 29 para. 1, second sentence.

The Court heard the addresses of Mr. Fawcett and Mr. Schmidt for the Commission and Mr. Danelius for the Government, as well as their replies to questions put by the Court and several judges.

At the hearing the Commission produced the document recently called for by the Court.

THE FACTS

In 1971, after expiry of one collective agreement and during negotiations for a new agreement, the applicants’ unions called selective strikes not affecting the sectors in which worked the applicants, who thus did not come out on strike. Mr. Schmidt and Mr. Dahlström complain that on conclusion of the new agreement, they, as members of the "belligerent" unions, were denied certain retroactive benefits paid to members of other trade unions and to non-union employees who had not participated in the strikes.

General background

Certain principles of labour law which had evolved in practice were codified in 1928 and 1936 by the following legislation:

(i) the 1928 Collective Agreements Act (lag om kollektivavtal);

(ii) the 1928 Labour Court Act (lag om arbetsdomstol); and

(iii) the 1936 Act on the Right to Organise and Negotiate (lag om förenings-och förhandlingsrätt).

The right to organise is defined in Section 3 of the Act as being the right of employers and employees to belong to an employers’ organisation or a trade union, to exercise their rights as members of that organisation or union, and to work for an organisation or a union or for the formation of an organisation or a union, without interference or pressure by the other party. The Act specifies that the right to organise shall be considered as being violated "if measures are taken either by employers or by employees to constrain any employee or employer, as the case may be, to refrain from becoming a member of, or to resign from, an association, to refrain from exercising his rights as a member of an association, or to refrain from working for an association or for the formation of an association, and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer, as the case may be, on the ground that such employee or employer is a member of an association, exercises his rights as a member of an association or works for an association or for the formation of an association".

The only way in which such associations enjoy the protection of the Act is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as intervention in the affairs of the association.

The right to negotiate is defined in Section 4 of the 1936 Act as being "the right to institute negotiations regarding conditions of employment or relations between employers and employees in general". It imposes on the other party an obligation to enter into negotiations, to attend meetings for negotiations and, where necessary, to make proposals for the settlement of the issues involved. This provision is applicable to all trade unions.

As from 1 January 1966, the 1965 State Officials Act (statstjänstemannalag) has virtually assimilated State employees to employees in the private sector as regards trade union rights, strikes, lock-outs, etc. The Act made the 1928 Collective Agreement Act, the 1928 Labour Court Act and the 1936 Act on the Right to Organise and Negotiate applicable in the public sector. Furthermore, the Act provided for collective agreements to be concluded, subject to certain exceptions, between the National Collective Bargaining Office (Statens Avtalsverk, hereinafter referred to as "the Office"), representing the State as employer, and the organisations of State employees. The Ministry of Finance has a nominee on the governing board of the Office.

(i) the State Employees’ Union (Statsanställdas Förbund, abbreviated to SF and known prior to 1 July 1970 as Statstjänarkartellen),

(ii) the National Federation of State Employees (SR),

(iii) the Swedish Confederation of Professional Associations (SACO),

(iv) the Civil Servants Section of the Central Organisation of Salaried Employees (Tjänstemännens Centralorganisations Statstjänstemannasektion, abbreviated to TCO-S).

According to the information at the disposal of the Court, these federations represent the large majority of Swedish State employees: more than 450,000 out of the 500,000 whose terms of employment are negotiated by the Office. About forty trade unions are affiliated to these organisations. The few independent trade unions represent only about 2,000 State employees in all.

Insofar as they are union members at all, university teachers and army officers generally belong to SACO and SR respectively. These two organisations, which are respectively open to staff possessing a university degree or the school leaving certificate (the equivalent of the baccalauréat), recently merged after the case had been brought before the Commission.

According to the trade unions’ own published figures, the number of SACO members in respect of whom the Office conducts collective negotiations was about 48,800 in 1971 and 1972; it rose to 51,800 in 1973 and was between 53,600 and 53,700 at the end of 1974. The university teachers’ union affiliated to SACO had between 1,800 and 1,900 members in 1971, between 1,900 and 2,000 in 1972, between 2,100 and 2,200 in 1973 and between 2,300 and 2,400 at the end of 1974. SR had 19,200 members in 1971, 19,800 in 1972 and about 20,000 at the end of 1973. The army officers’ union affiliated to SR had between 6,900 and 7,000 members in 1971, 7,300 in 1972 and between 7,400 and 7,500 at the end of 1973; it would appear that in August 1975 its membership had fallen to about 7,100 or 7,200.

Article 3

"Collective agreements as to such conditions of employment or service as are determined by the King-in-Council or by Parliament shall be concluded conditionally on the agreement being sanctioned by the King-in-Council."

Article 4

"An Authority which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers, notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement."

The question whether an individual employee has any means of challenging his union’s decision to go on strike is a matter exclusively governed by the internal rules of the union concerned. These may provide for a right to ask for a secret ballot or for other rights to object to the union’s decisions to take industrial action.

Facts of the particular case

The Office retaliated and, on 19 February 1971, about 30,000 members of SACO and SR were locked out. This affected all university teachers belonging to SACO, including Mr. Schmidt, and some officers belonging to SR, but not Mr. Dahlström. New strikes and lock-outs were proclaimed, but did not become effective. On 12 March 1971, an Act was promulgated which gave the King-in-Council power to order the prolongation of certain collective agreements for a period of six weeks, but not extending beyond 25 April 1971, provided that collective industrial action threatened vital public interests. By virtue of this Act the previous collective agreement was reinstated on 13 March 1971 for a period of six weeks and all strikes and lock-outs terminated forthwith.

"Officials who were members between 1 January and 12 March 1971 (or any part of this period) of organisations that organised industrial action for any part of this period, shall not be entitled from 1 January to 12 March 1971 to the increased wage benefits applicable under the agreement, unless the Collective Bargaining Office decides otherwise. This declaration also concerns other officials if they took part in any such industrial action."

According to the applicants, during the negotiations SF and TCO-S had urged that the non-retroactivity clause should not be included in the agreement and expressed the opinion that it properly belonged to an agreement between the State and the two organisations concerned, SACO and SR. SF and TCO-S declared this expressly and inserted a reservation in the record before putting their signatures to the agreement. TCO-S had, however, attempted to entice to itself some members of SACO, which was in its opinion a purposeless organisation, and had in fact written to the applicant Schmidt in this vein.

The exception clause applied to both applicants as members of SACO and SR, even though they themselves had not gone on strike at all. Mr. Schmidt was affected for the period from 1 January to 19 February 1971, being the date when he was locked out and thus deprived of his salary. Mr. Dahlström, who was upgraded under the new agreement, was affected for the whole period up to 12 March 1971. During these periods the applicants performed work for a lower salary than that paid to other employees who were in the same salary brackets but not members of SACO or SR. Their financial losses amounted to Kr. 300 and Kr. 1,000 respectively.

(i) a declaration that the measures taken by the Office constituted a violation of the applicants’ right to organise and that this involved an interference with the affairs of SACO and SR;

(ii) a declaration that clause 18 of the agreement of June 1971 was of no effect in regard to the applicants;

(iii) an order that the State pay compensation to the applicants for financial loss and infringement of their right to organise.

SACO and SR asserted that the State had infringed their members’ right to organise as guaranteed in Section 3 of the 1936 Act since, with regard to retroactive wage benefits, they were subjected to special treatment in comparison with members of TCO-S and SF and non-union officials. The Office denied any such infringement since members of SACO and SR had been refused the benefit of retroactivity only for the reason that the State wanted to maintain the principle that "a strike destroys retroactivity". A comparison between SACO and SR members, on the one side, and members of TCO-S and SF and non-union officials, on the other, did not provide any basis for the conclusion that the State acted on such a basis or with such a purpose as was envisaged by Section 3 of the 1936 Act.

The Court then found that no such purpose on the part of the State could be established. In particular, no support had appeared for the idea that the State intended to induce members of SACO and SR to switch over to TCO-S and SF. In this context, the Court assumed that the latter organisations would also have been refused retroactivity if they had organised industrial action during the process of negotiations.

With respect to non-union employees the Court found that the reason why they were granted a special benefit had nothing to do with their position as being non-union. Any procedure designed to refuse the benefit of retroactivity generally to non-union employees in sectors where SACO and SR were dominant or representative obviously could have become very complicated and time-consuming. Moreover, no recognised norms existed for determining such sectors, and the concept of representation was ambiguous and disputed. The Court then referred to the State’s failure to negotiate an agreement which would exclude retroactivity to all non-union employees within the sectors in which SACO and SR were representative. In this respect the Court considered that the facts of the case did not support the conclusion that this failure showed any intention on the part of the State to violate the right to organise. Otherwise, the State would, as soon as one federation organised industrial action, be barred from upholding the principle that a strike destroys retroactivity in any other way than by refusing retroactive validity for agreements concluded with respect to all employee organisations. Such a general limitation of the State’s possibilities of upholding the principle could not be based on Section 3 of the 1936 Act.

In the case before it, the Court did not consider the granting of retroactive benefits to non-union employees who had not been on strike as proof of any purpose to violate the right to organise. In the Court’s opinion, the parties had not been able to present anything more than quite uncertain information on the total number of non-union officials or on their field of employment. The Court indicated that the plaintiffs’ view concerning the State’s purpose in its treatment of non-union officials might have appeared more reasonable if it had been possible to show that the large majority of non-union officials were active within the main field of activity of SACO and SR. Conversely, it would be less reasonable to take notice of the treatment of the group of non-union officials if these could primarily be classified within the field of recruitment of SF and TCO-S. The uncertainty in regard to these circumstances argued, in the Court’s conclusion, in favour of the States declaration that its purpose did not extend beyond upholding the principle that a strike destroys retroactivity.

The Commission declared the application admissible by a decision of 18 October 1972.

During the examination of the merits, the applicants relied on Article 11 (art. 11) and also Article 14, read in conjunction with Article 11 (art. 14+11).

(i) confirmed its opinion, previously expressed in the report in the Swedish Engine Drivers’ Union case, that Article 11 para. 1 (art. 11-1) may legitimately extend to cover State responsibility in the field of labour-management relations and thus to provide some protection for unions against interference by employers;

(ii) expressed the opinion:

- by nine votes to one with one abstention, that the Government’s policy of denying retroactive benefits to non-striking members of belligerent unions did not in the circumstances infringe the applicants’ right, under Article 11 para. 1 (art. 11-1), to form and join the trade unions;

- that in view of the preceding finding, the Commission was not called upon to examine whether the action complained of was justified under Article 11 para. 2 (art. 11-2);

- by eight votes to one with two abstentions, that the differential treatment complained of was in the circumstances justified as an industrial relations policy and that there had been no violation of Article 14 read in conjunction with Article 11 para. 1 (art. 14+11-1).

The report contains a separate concurring opinion.

AS TO THE LAW

I. AS TO THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)

According to the Commission, on the other hand, the disputed decision adopted by the Office may in principle be challenged under Article 11 (art. 11), even if the Office fulfils typical employer functions.

Article 11 (art. 11) is accordingly binding upon the "State as employer", whether the latter’s relations with its employees are governed by public or private law. Consequently, the Court does not feel constrained to take into account the circumstance that in any event certain of the applicants’ complaints appear to be directed against both the Office and the Swedish State as holder of public power. Neither does the Court consider that it has to rule on the applicability, whether direct or indirect, of Article 11 (art. 11) to relations between individuals stricto sensu.

The Court recalls that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (National Union of Belgian Police judgment, 27 October 1975, Series A no. 19, p. 18, para. 39). Article 11 para. 1 (art. 11-1) nevertheless leaves each State a free choice of the means to be used towards this end. The grant of a right to strike represents without any doubt one of the most important of these means, but there are others. Such a right, which is not expressly enshrined in Article 11 (art. 11), may be subject under national law to regulation of a kind that limits its exercise in certain instances. The Social Charter of 18 October 1961 only guarantees the right to strike subject to such regulation, as well as to "further restrictions" compatible with its Article 31, while at the same time recognising for employers too the right to resort to collective action (Article 6 para. 4 and Appendix). For its part, the 1950 Convention requires that under national law trade unionists should be enabled, in conditions not at variance with Article 11 (art. 11), to strive through the medium of their organisations for the protection of their occupational interests. Examination of the file in this case does not disclose that the applicants have been deprived of this capacity.

II. AS TO THE ALLEGED VIOLATION OF ARTICLES 11 AND 14 TAKEN TOGETHER (art. 14+11)

Clause 18 of the collective agreement of June 1971 accorded retroactivity of benefits to these officials except insofar as they had been on strike. In support of the difference of treatment thus established between the applicants and their non-striking colleagues, whether non-union or members of other unions, the Government invoked the principle, which is traditional in Sweden and in itself uncontested by the applicants, according to which "a strike destroys retroactivity".

The Court deems the application of this principle to be legitimate and it has no reason to believe that the State had other and ill-intentioned aims. In particular, the Court finds it inconceivable that the Office sought to induce the members of SACO and SR to cease all trade union membership. On the contrary, as emphasised by the Government and the Commission and as demonstrated by the Swedish Engine Drivers’ Union case, its policy was to encourage the organisation of workers in large and centralised trade union federations. The file in the present case does not indicate either that the Office wished to incite the members of what were indeed federations of consequence, that is SACO and SR, into defecting to TCO-S and SF.

This reasoning clearly does not apply to non-union employees or employees belonging to organisations other than SACO or SR, who had not gone on strike. Consequently, the Court cannot accept the applicants’ argument that the benefit of retroactivity should have been refused - or, alternatively, granted - to all staff in sectors where SACO or SR were representative.

III. AS TO THE APPLICATION OF ARTICLE 50 (art. 50)

FOR THESE REASONS, THE COURT,

Holds unanimously that there has been no breach either of Article 11 (art. 11) or of Articles 11 and 14 (art. 14+11) taken together.

Done in English and French, the French text being authentic, at the Human Rights Building, Strasbourg, this sixth dag of February one thousand nine hundred and seventy-six.

Giorgio Balladore Pallieri

President

Marc-André Eissen

Registrar