Communicated on 21 January 2014
FIRST SECTION
Application no. 15557/10
TRADE UNION IN THE FACTORY ‘4TH NOVEMBER’
against the former Yugoslav Republic of Macedonia
lodged on 11 March 2010
STATEMENT OF FACTS
The applicant union is a trade union in the “4th November” sugar factory in Bitola. It is represented before the Court by Mr F. Medarski, a lawyer practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant union, may be summarised as follows.
1. Negotiations between the applicant union and the employer
On 4 November 2008 the applicant union announced a collective strike in the wake of the unsuccessful negotiations with the employer concerning payment of leave allowances for 2006, the signing of the employer’s collective agreement and its compliance with the law, and increases in pay. As stated in the announcement, the strike was to begin at 8 a.m. on 6 November 2008 on the employer’s business premises and would continue until the union’s demands were met.
On 13 November 2008 the applicant union and the employer reached an agreement for a 20% pay rise and the payment of a one-off bonus for production workers. In accordance with the agreement, the strike action was suspended and the negotiations continued.
In the light of legislative amendments in December 2008 introducing gross salaries, on 5 February 2009 the applicant union asked for the pay rise stipulated in the agreement to be incorporated in the workers’ gross salaries. The same request was made regarding leave and food allowances.
As established in the subsequent civil proceedings (see below), the employer responded on 9 March 2009, saying that it had fulfilled the wage-related obligations set out in the agreement of 13 November 2008 and that the negotiations in respect of the collective agreement would continue. It also offered an additional 10% pay rise for production workers.
The applicant union and the employer then exchanged letters in which they stated their positions regarding the contentious issues. In a letter of 12 March 2009 the employer formulated two proposals concerning pay increases and indicated that the negotiations regarding the collective agreement would continue.
In a letter dated 13 March 2009 the applicant union made a final offer and asked the employer to state its position by midday, under the threat of resorting to other statutory measures.
In another letter dispatched that day by registered mail (which the employer received on 16 March 2009) the applicant union told the employer:
“... since you refuse to settle the wage dispute, we hereby inform you that the strike action will resume at 7.30 a.m. on 17 March 2009 on the factory premises. We emphasise that we are ready to negotiate both now and during the strike in order to find a solution (that is acceptable for both parties) ...”
In a letter dated 16 March 2009 the employer improved its offer of 12 March 2009. The applicant union implicitly refused the offer in a letter dated 17 March 2009 in which it expressed its willingness to continue negotiating. In reply, the employer informed the applicant union that by having gone on strike on 17 March 2009 it had violated the provisional agreement of 13 November 2008.
2. Civil proceedings for the strike to be declared unlawful
On an unspecified date, the employer brought a civil action against the applicant union asking the courts to declare the strike announced on 16 March 2009 unlawful.
In a judgment of 28 April 2009 the Bitola Court of First Instance (“the first-instance court”) allowed the employer’s action and declared the strike announced on 16 March 2009 unlawful. On 28 May 2009 the Bitola Court of Appeal allowed an appeal by the applicant union and set aside the lower court’s judgment. It ordered the re-examination of the case and instructed the first-instance court to hear evidence from the parties in order to establish whether, at the material time, the negotiations were still pending and, if so, whether – in the light of its subsequent requests – the applicant union had been obliged to announce the strike of 16 March 2009.
On 25 June 2009 the first-instance court dismissed the employer’s application, holding that negotiations between the parties had been pending when the applicant union had announced that it would go on strike as of 17 March 2009. As to the strike, the court found that it could not be regarded a new strike, but was rather a continuation of the strike announced on 4 November 2008. In such circumstances, the court ruled that the strike had been in compliance with the Labour Proceedings Act, pursuant to which the right to strike could not be restricted because of the requirement for mediation.
On appeal by the employer, on 7 September 2009 the Bitola Court of Appeal overturned the first-instance court’s judgment and declared the strike announced on 16 March 2009 unlawful. On the facts established by the lower court, the court held:
“The court considers that the strike of 17 March 2009 is unlawful because mediation and negotiations ... are still pending. [The applicant union] submitted new requests that had not been specified in the agreement [of 13 November 2008] ... [The applicant union], without giving any reply, refused the new proposals made [by the employer] and continued the strike, despite the employer’s willingness to comply with requests that were not part of the agreement. Instead of considering the four proposals made by the employer and providing an explanation for having refused each of them, [the applicant union] unilaterally informed the employer ... that the strike would continue. This means that, while the negotiations were pending, it went unilaterally into a new strike contrary to section 236(3) of the Labour Relations Act.”
3. Compensation proceedings instituted by the employer
On 18 December 2009 the employer claimed compensation for pecuniary loss (set at approximately 340,000 euros) allegedly sustained as a result of the strike by the applicant union which had lasted from 17 March to 17 October 2009. No information was provided as to the outcome of these proceedings.
B. Relevant domestic law
1. Constitution of 1991
The relevant provision of the Constitution reads:
Article 38
“The right to strike is guaranteed. The law may restrict the conditions for the exercise of the right to strike in the armed forces, the police and administrative bodies.”
2. Labour Relations Act (Official Gazette no. 62/2005)
The relevant provisions of the Labour Relations Act read:
Chapter XX
Strike
Rights and obligations during strikes
Section 236
“(1) A trade union and its federations can announce and go on strike in order to protect the economic and social rights of their members, in accordance with the law.
(2) The employer or the employers’ federation shall be notified in writing about the strike ...
(3) The strike cannot begin before mediation has ended, as provided for by law. The requirement for mediation cannot restrict the right to strike if such a requirement is specified by law or before [the end of] any reconciliation proceedings agreed upon by the parties.
...
(5) Any notice announcing a strike must contain information about the reasons for the strike, and the place and the time of the strike.
(6) The strike must be organised in a manner that will not impair or disturb the work routine of workers not participating in the strike and [in a manner] that will not restrict access to the business premises by workers and persons in authority.”
Judicial proscription of an unlawful strike and compensation for damage
Section 242
“(1) The employer and the association of employers can ask the competent court to declare unlawful a strike that has been organised contrary to the statutory provisions.
(2) The employer can seek compensation for damage sustained by a strike organised contrary to the law.”
COMPLAINTS
The applicant union complains that the court order declaring the strike unlawful violated its rights under Article 11 of the Convention. In particular, the interference was not “prescribed by law” nor was it “necessary in a democratic society”. The domestic courts did not provide convincing and relevant reasons to justify declaring the strike – a legitimate form of activity of a trade union – unlawful.
QUESTIONS TO THE PARTIES
Has the interference with the applicant’s trade union freedom been “prescribed by law”? In this connection, was section 236(3) of the Labour Relations Act, on which the Bitola Court of Appeal based its judgment of 7 September 2009, sufficiently precise and foreseeable? If so, was the judicial order declaring the applicant’s strike unlawful necessary, namely was it justified and proportionate within the meaning of Article 11 § 2 of the Convention?
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