Isabelle Van Hiel

Isabelle Van Hiel, Ghent University

» Full paper: ilera-2019-paper-266-Van Hiel.pdf

Collective bargaining can only be an adequate means to defend an promote workers’ interests, if the resulting agreements are respected. Therefore, collective agreements must be made enforceable, also at the request of the individual worker. The individual worker must be able to claim  the substance of the agreement against his employer, although neither of them might be a party to the collective agreement.

In the past, different means have been  developed to achieve this goal. Some means were based on the membership of the worker to the signatory workers’ organisation. To cover all the workers in the workplace, signatory trade unions imposed  an obligation to be trade union member in order to be hired, or to become one when hired. Other means were grounded on the membership of the employer of the signatory employers’ organisation. Those systems of collective labour relations  demanded for the use of pressure on the employer to become member of an employers’ organisation, or to accede to the collective agreement signed by the employers’ organisation. Where no employers’ organisations existed or had been involved in collective negotiations,  the collective agreement was enforced by a requirement in the individual labour contract to apply the labour conditions set in the collective agreement. Eventually, in many countries, the process of collective bargaining was formalised and the government started to declare generally binding the content of the collective agreement. As a consequence of the declaration, all workers are covered, whether or not their employer is a member of an employers’ organisation.

The possibility to enforce the result of the process of collective bargaining, must be considered as an element of the right to collective bargaining, which in itself is an aspect of the freedom of association. However, this right has been challenged over the years, mainly by invoking the freedom of association. Increasingly, it is judged to comprise a negative aspect which aims to protect individuals against pressure to become a member of an association. Since its first recognition by the European Court of Human Rights, the negative freedom of association has been invoked several times. First, in Young, James and Webster, it has been used to oppose closed shops. Later, in Gustafsson, the pressure exerted by a trade union on an employer to become member of an employers’ organisation, or to enter into the collective agreement, was questioned. As the attempt failed, similar complaints were introduced before the European Committee of Social Rights and the EU Court of Justice. More recently, in Geotech Kancev, the previous efforts cumulated in the claim of an employer against the application of a collective agreements which was declared generally binding. In this contribution the facts and outcome of the case will be discussed, while placing it in the evolution of the negative freedom of association and the right to collective bargaining at European and international level.