TRADE UNION IN THE FACTORY "4TH NOVEMBER" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 15557/10
TRADE UNION IN THE FACTORY ‘4TH NOVEMBER’
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 8 September 2015 as a Chamber composed of:

András Sajó, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Erik Møse,
Dmitry Dedov, judges,

and Søren Nielsen, Section Registrar

Having regard to the above application lodged on 11 March 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant is the trade union in the “4th November” factory in Bitola. It is represented before the Court by Mr F. Medarski, a lawyer practising in Skopje.

2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Negotiations between the applicant union and the employer

4. On 4 November 2008 the applicant union announced that its members would go on strike because of the lack of success of negotiations that had been pending with the employer for some time regarding payment of leave allowance (регрес за годишен одмор) for 2006, the signing of the employer’s collective agreement, and increases in pay. As stated in the announcement, the strike was to begin at 8 a.m. on 6 November 2008 at the workplace and would continue until the applicant union’s demands were met. As stated in the decision to strike, the applicant union undertook to negotiate with the employer before and during the strike, in order to ensure that the workers’ demands were acceded to in a friendly manner. It was also stated that if an agreement was reached between the applicant union and the employer it would be regarded as a collective agreement of the employer.

5. 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. According to the agreement, the strike action was suspended (активностите на штрајкот се запираат) and the negotiations were to continue after termination of the “campaign” (apparently a production stage in the factory).

6. 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 travel and food allowances (трошоци по основ на исхрана и превоз).

7. 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 on the collective agreement would continue. It also offered an additional 10% pay rise for production workers.

8. 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 set out two proposals concerning pay increases, and indicated that the negotiations regarding the collective agreement would continue.

9. By a letter dated 13 March 2009 the applicant union made a final request (a 30% salary increase for production workers and incorporation of the food allowance in the gross salary) and asked the employer to state its position by midday, under the threat of resorting to other statutory measures.

10. In another letter dispatched that day by registered mail (which the employer received on 16 March 2009) the applicant union informed 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 in the factory. 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) ...”

11. By a letter dated 16 March 2009 the employer formulated four proposals regarding a pay rise for production and/or all workers and travel and food allowances, and requested that the applicant union reply by 18 March 2009. The employer stated that its proposals corresponded to its financial capacity at the time. By a letter dated 17 March 2009 the applicant union refused the employer’s offer but expressed its willingness to continue negotiating. In reply, the employer informed the applicant union that by going 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

12. 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.

13. 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. The court held that the strike had not been announced within the time-limits specified in the Collective Agreement for the Agricultural and Food Sector (“the sector collective agreement”), which was binding on the applicant union. Since the applicant union, by submissions of 5 February and 13 March 2009, had made new requests that had not been included in the agreement of 13 November 2008, the court found that the applicant union had gone on strike in contravention of section 236(3) of the Labour Act (“the Act”, see paragraph 21 below) according to which a strike could not begin before any out-of-court settlement proceedings had been brought to an end.

14. 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 instructed the first-instance court to establish whether the employer had signed the sector collective agreement, which in the court’s opinion was the determining factor as to the applicability of that collective agreement to the dispute between the parties. The lower court was also instructed 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.

15. On 25 June 2009 the first-instance court dismissed the employer’s action. Relying on section 236 of the Act, it held that the applicant union had gone on strike on the basis of its decision of 4 November 2008 (see paragraph 4 above), which had not been set aside (вон сила). With that decision, the applicant union had informed the employer about the reasons for the strike and the place and time of the strike. The agreement reached between the parties on 13 November 2008 had been provisional and had concerned only part of the applicant union’s demands (concerning a pay rise for production workers). The employer had started implementing the agreement of 13 November 2008 up to the point when the legislative amendments introducing gross salaries entered into force in December 2008. In view of the applicant union’s requests post-dating the agreement, the court concluded that negotiations between the parties had been pending and that the applicant union had not been required to announce the strike of 16 March 2009. The court also found that the strike could not be regarded as a new strike, but was rather a continuation of the strike announced on 4 November 2008. That negotiations were ongoing was supported by the fact that after the parties had reached the agreement of 13 November 2008 both strikers and non-strikers were regularly at work and production had continued (редовно оделе на работа, редовно се одвивал работниот процес). The court also established that the employer was at the time neither a member of the Union of Employers (Здружение на работодавачи) nor a signatory to the sector collective agreement (the latter accordingly was not binding on the employer at the time). In such circumstances, the court ruled that the strike had been in compliance with the Act, pursuant to which the right to strike could not be restricted because of the requirement for mediation.

16. On an 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. The court held that:

“The court considers that after the agreement (of 13 November 2008) had been concluded and the [employer] had satisfied part of [the applicant’s] requests, negotiations were still pending, which is not disputed between the parties. In view of the above-cited provision (section 236 of the Act), the requirement for mediation cannot restrict the right to strike if such a requirement is specified by this law or before the end of any out-of-court settlement proceedings agreed upon by the parties.

This 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 fulfil the requests that were not part of the agreement. Instead of considering the four proposals made by the employer and providing an explanation for refusing each of them, [the applicant union] unilaterally informed the employer on 16 March 2009 that the strike would continue. This means that while the negotiations were pending it went unilaterally into a new strike, in contravention of section 236(3) of the Labour Act.

In view of the foregoing, the court allows [the employer’s] appeal ... and prohibits (забрани) the [the applicant union’s] strike announced on 16 March 2009 as contrary to the Labour Act, all the more so since the negotiating team of [the applicant union] suggested to [the employer], with the notification of 17 March 2009, that negotiations should continue.”

3. Compensation proceedings instituted by the employer

17. On 18 December 2009 the employer claimed compensation for pecuniary loss allegedly sustained as a result of the strike by the applicant union which had lasted from 17 March to 17 October 2009. The applicant union denied that the employer had sustained any damage, alleging that workers who had gone on strike had been replaced. In such circumstances, there had been no adverse effects and “the campaign had ended successfully”.

18. In the observations on the admissibility and merits of the application, the Government informed that on 26 November 2010 the first-instance court allowed the employer’s claim and ordered the applicant union, under section 242(2) of the Act (see paragraph 21 below), to pay 7,341.326 Macedonian denars (MKD) with interest in respect of “pecuniary damage caused by the unlawful strike held between 17 March and 17 October 2009.” The court relied on an expert report, according to which there had been “two campaigns for the production of raw sugar” during the strike, and the employer had sustained damage in view of increased energy costs. In the absence of an appeal by the applicant union, this judgment became final on 31 December 2010.

4. Other proceedings

19. The applicant union submitted a list of twenty-five employees who were members of the applicant union and who had been dismissed from work owing to their participation in the strike. In this connection, it submitted court judgments in which the dismissal of an employee had been confirmed at the first and second levels of jurisdiction. By judgments of 29 February and 30 May 2012 the Supreme Court overturned the dismissal of two of the employees named in that list (Рев.бр.898/2010 and Рев.бр.83/2011). The parties did not submit any further information in this respect.

B. Relevant domestic law and practice

1. Relevant domestic law

(a) Constitution of 1991

20. The relevant provision of the Constitution reads as follows:

“Article 32 § 5

The rights of employees and their status are regulated by law and collective agreements.

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.”

(b) Labour Act (Official Gazette nos. 62/2005 and 106/2008)

21. The relevant provisions of the Labour Act read as follows:

“Chapter XVII

Out-of-court settlement of individual and collective labour disputes

Section 182(1)

(1) The employer and the employee can decide that an individual or collective labour dispute is settled by a conciliation council (мировен совет) composed of three members, of which one member is appointed by the employer and one by the employee and they jointly appoint the remaining member ...

Out-of-court settlement of collective labour disputes (arbitrage)

Section 183

(1) A collective agreement may specify that collective labour disputes are settled by arbitration.

(2) The collective agreement specifies the composition, procedure and other relevant issues for the arbitration process.

(3) If the employer and the employee agree that a dispute is to be settled by arbitration, the judgment of the arbitration is final and binding for both parties.

(4) The judgment of the arbitration is not subject to judicial review.

Chapter XIX

Collective agreements

Types of collective agreement

Section 203

A collective agreement can be general for the whole State, specific for a particular (economic) sector, or individual, for a particular employer.

General collective agreement

Section 204

(1) At the State level there are:

1) business general collective agreements and

2) public-sector general collective agreements.

Section 205

(1) A general collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently.

(2) A sector collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently.

Section 208

(1) A collective agreement is binding on all persons who have entered into it and on all who, at the relevant time, were or have subsequently become members of the unions which had entered into the collective agreement.

(2) A collective agreement is also binding on all persons who have entered into it and on all who have subsequently become members of the unions which had signed up to it ...

Chapter XX

Strike

Rights and obligations during strikes

Section 236

(1) A trade union and its federations may 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 negotiations (постапка за помирување) have ended, as provided for by law. The requirement for negotiations cannot restrict the right to strike if such a requirement is specified by law or before [the end of] any out-of-court settlement 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 workplace 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 may 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.

(c) General business collective agreements

22. The Government submitted copy of the general business collective agreement of 23 June 2006 (together with an accord extending its validity until 14 June 2009, Official Journal no.78/2008). The relevant provisions of the 2006 general business collective agreement (Official Journal no. 41/2006) were as follows:

“X. Out-of-court settlement of individual and collective labour disputes

Section 45

Disputes that cannot be settled through negotiations can be settled by means of mediation or arbitration.

Mediation is a process in which an independent third person appointed by the parties to the dispute assists them in settling the dispute.

Arbitration is dispute resolution by a third person who is appointed by the parties to the dispute and who resolves the dispute by making a decision.

1. Out-of-court settlement (Conciliation council)

Section 47

Individual and collective disputes can be settled out of court or by a special conciliation council.

An out-of-court settlement is set in motion by a proposal from any party to the dispute, which is to be submitted up to five days after the dispute; in the proposal the appellant must describe the nature of the dispute.

The other party is required to reply within three days of receiving the proposal.

Each party to the dispute appoints one member of the conciliation council. They jointly appoint the third member of the conciliation council from among the candidates on the list of mediators ...

Section48

Parties are required to complete the out-of-court settlement proceedings within fifteen days of the submission of the proposal for an out-of-court settlement ...

2. Arbitration proceedings

Section 50

In a collective labour dispute any party to the dispute can seek settlement by means of arbitration up to eight days after the beginning of the dispute or after termination of the out-of-court settlement proceedings.

One or more arbiters can be included in the arbitration.

Parties to the disputes jointly appoint the arbiter(s) from the list of arbiters ...

The decision of the arbiter is final and binding on the parties concerned.

Arbitration proceedings are to be completed within fifteen days.”

23. The Government also provided a copy of the 2009 general business collective agreement (Official Journal no. 88/2009), which contained identical rules on out-of-court settlement of labour disputes to those in the 2006 collective agreement.

2. Relevant practice of the Constitutional Court

24. On the basis of an application by the Federation of Trade Unions (Сојуз на синдикати), on 10 May 2006 the Constitutional Court rejected as unconstitutional the part of section 236(3) of the Act which provides that a strike cannot begin before negotiations have ended, as provided for by law and “a decision of the Minister for Labour (и акт на Министерот надлежен за работите од областа на трудот)”. Relying on international materials and the constitutional provisions cited above (see paragraphs 20, 25 and 26), the Constitutional Court stated that:

“The court considers that the disputed provision introduced, in principle, a requirement of prior exhaustion of out-of-court settlement proceedings before resorting to a strike, as a means of protection of economic and social rights ...

According to the court ... strikes and mediation in labour-related matters are closely linked, given the fact that friendly settlement of labour disputes (мирно решавање на работните спорови) can have, in certain cases, a preventive effect in that they avoid strikes being held, and if a strike has already begun it is a means to achieve an out-of-court settlement of a particular dispute. The court therefore considers that it is ... decisive that both issues (strike and mediation) concern labour issues, which, as provided for in Article 32 § 5 of the Constitution, are to be regulated by law and collective agreements. They cannot be regulated by a decision of the Minister ...”

C. Relevant international materials

1. European Social Charter

25. Article 6 of the European Social Charter reads as follows:

“Article 6 – The right to bargain collectively

With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties under­take:

1. to pro­mote joint con­sulta­tion between workers and employ­ers;

2. to promote, where necessary and appropri­ate, machinery for voluntary negotia­tions between employers or employers’ organi­sations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

3. to promote the estab­lishment and use of appro­priate machin­ery for conciliation and voluntary arbitration for the settlement of labour dis­putes; and recognise:

4. the right of workers and employers to collec­tive action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”

2. International Covenant on Economic, Social and Cultural Rights, 3 January 1976

26. Article 8 of the International Covenant on Economic, Social and Cultural Rights reads as follows:

“Article 8

1. The States Parties to the present Covenant undertake to ensure ...

(d) the right to strike, provided that it is exercised in conformity with the laws of the particular country.”

3. European Social Charter, European Committee of Social Right, Conclusions XIX-3 (2010) (“The former Yugoslav Republic of Macedonia”), December 2010

27. Relevant provisions of this report read as follows:

“Article 6 - Right to bargain collectively

Paragraph 4 - Collective action

...

Procedural requirements pertaining to collective action

The trade union which has called the strike must notify the employer against whom it is directed, specifying the reasons for the strike, the place where it is to be held, and the date and time of the strike’s commencement.

A strike cannot take place before the completion of the conciliation/mediation procedures.

The Committee asks whether there are any other procedural requirements that must be fulfilled before a lawful strike can take place, such as ballot requirements.

...

Conclusion

Pending receipt of the information requested the Committee defers its conclusion.”

4. European Social Charter, European Committee of Social Right, Conclusions (2014) (“The former Yugoslav Republic of Macedonia”), January 2015

28. Relevant provisions of this report read as follows:

“Concerning procedural requirements that must be fulfilled before a lawful strike can take place, the Committee notes that no other requirements than the ones mentioned in the previous conclusion are to be fulfilled.

...

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in “the former Yugoslav Republic of Macedonia” is in conformity with Article 6 § 4 of the Charter.”

COMPLAINTS

29. The applicant union complained under Article 6 of the Convention that the domestic courts had not provided convincing and relevant reasons to justify declaring the strike unlawful. Relying on Article 11 of the Convention, it complained that the court order declaring the strike unlawful had 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 LAW

30. The applicant union complained under Articles 6 and 11 of the Convention about the court order declaring the strike unlawful. The Court considers that the applicant’s complaints should be examined only under Article 11 of the Convention, which reads as follows:

“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.

2. 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.”

A. The parties’ submissions

31. The Government submitted that the impugned court order had been based on section 236(3) of the Act, which contained precise and foreseeable rules concerning the right to strike. In this connection they referred to the decision of the Constitutional Court, which had been given on the basis of an application in which the Federation of Trade Unions had not challenged the constitutionality of the provision relevant for the present case. In that decision, the Constitutional Court had reiterated that labour issues, including the out-of-court settlement of labour disputes, were to be regulated by law and collective agreements. The 2006 general business collective agreement had contained sufficiently clear and precise rules concerning out-of-court settlement of labour disputes, which had further clarified section 236(3) of the Act.

32. According to the Government, in its judgment of 7 September 2009 the Bitola Court of Appeal had provided detailed reasons for declaring the applicant union’s strike of 17 March 2009 unlawful, namely that the applicant union had gone on strike notwithstanding that the negotiations were not yet over. In this connection they maintained that the applicant union had not respected the rules on out-of-court settlement specified in the general business collective agreement, which had been agreed by representatives of both the employers and employees. The fact that those rules had been arrived at as a result of joint consultations implied that they were binding on the parties, all the more so since the out-of-court settlement proceedings had not been burdensome. In this connection they referred to section 48 of the general business collective agreement, under which those proceedings had to be completed within fifteen days. That requirement, read in conjunction with section 236(3) of the Act, implied that the strike could start on the sixteenth day after the settlement proceedings had started. Those minimal restrictions were intended to protect the rights and obligations of third parties, including the employer, which had sustained damages owing to the strike (see paragraph 18 above).

33. The Government concluded that the judicial proscription of the strike had been the only possible measure to stop the strike and its negative effects. In this later context the Government submitted that during the strike, which had lasted nearly seven months, workers who had gone on strike had not carried out their duties. Furthermore, there was no evidence that during this time the applicant union had entered into any negotiations with the employer to settle the dispute.

34. The applicant union argued that section 236(3) of the Act had not been clear and foreseeable. That had been demonstrated in the judgments of the first- and second-instance courts in the present case, which had provided conflicting interpretations of that provision. It further maintained that the judicial order declaring the strike unlawful had not been necessary and proportionate for the attainment of the legitimate aim which it had pursued, namely the protection of the rights of others (the economic interests of the employer). The courts had neither provided any explanation in this respect nor had they examined whether the legitimate aim could have been achieved by using other, less strict measures. It further averred that during the strike the business operation of the employer had not stopped, as other employees (who had not participated in the strike) had gone to work regularly. Lastly, it stated that “twenty-five dismissal decisions in respect of members of (the applicant union) and the award of damages in the amount of approximately EUR 120,000, which (the applicant union) was ordered to pay to the employer had been a direct consequence of the court order declaring the strike unlawful”.

B. The Court’s assessment

1. Scope of the case before the Court

35. In the application, the applicant union complained of a violation of Article 11 of the Convention which followed in its view from the judgment of the Bitola Court of Appeal dated 7 September 2009. The application was introduced before completion of the compensation proceedings which the employer had instituted against the applicant union. The applicant union neither informed the Court about the outcome of the compensation proceedings nor did it provide it with a copy of the judgment of 26 November 2010. This information was brought to the Court’s attention by the respondent Government, which further specified, in their observations that the applicant union had not appealed against that decision (see paragraph 18 above). The applicant union did not contest that assertion. In such circumstances, the Court will confine its examination of the complaint under this head as submitted by the applicant union, namely whether the court judgment of 7 September 2009 declaring the strike of 17 March 2009 unlawful had been compatible with the requirements of Article 11 of the Convention.

2. Whether there was an interference with the applicant union’s freedom of association

36. The Court notes that the Government did not dispute that the Bitola Court of Appeal’s judgment of 7 September 2009 had constituted an interference with the applicant union’s freedom of association. The Court, having regard to its case-law according to which strike action is protected under Article 11 of the Convention (see Enerji Yapı-Yol Sen v. Turkey, no. 68959/01, § 24, 21 April 2009, and National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 84, ECHR 2014), sees no reason to hold otherwise.

3. Whether the interference was justified

37. The Court must further examine whether that interference was justified in terms of Article 11 § 2 of the Convention, that is whether it was prescribed by law, pursued a legitimate aim and was “necessary in a democratic society” (see Hrvatski liječnički sindikat v. Croatia, no. 36701/09, § 50, 27 November 2014).

(a) “Prescribed by law”

38. It reiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them, with appropriate advice if need be, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 64, ECHR 2004‑I).

39. In the present case, the Court notes that the court order declaring the applicant’s strike unlawful was based on sections 236(3) and 242 of the Act (see paragraph 21 above). It is not in dispute that the Court of Appeal had been vested with jurisdiction, under section 242 of the Act, to decide on the lawfulness of the strike. The applicant’s grievances concern the clarity and foreseeability of section 236(3) of the Act, which concerns the link between the right to go on strike and the requirement of conciliation.

40. The Court observes that this section contains two sentences. Whilst the first sentence explicitly provides that “a strike cannot begin before negotiations have ended”, the second sentence states that “the requirement for negotiations cannot restrict the right to strike”. The Court accepts that the wording of section 236(3) of the Act may be considered rather unfortunate. That led the domestic courts, which examined the applicant’s case at two levels of jurisdiction, to interpret this provision differently, and thus reach conflicting conclusions as to the lawfulness of the applicant union’s strike. The first-instance court applied the second sentence and found that the applicant union had the right to go on strike notwithstanding that the negotiations with the employer were still pending at the time. By contrast, the Court of Appeal relied on the first part of this provision and held that the applicant union had gone on strike without waiting for the outcome of the negotiations that were ongoing at the time.

41. The Court reiterates that the mere fact that a provision is capable of more than one construction does not mean that it fails to meet the requirement of “foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice (ibid., § 65).

42. In this connection the Court notes that under Article 32 § 5 of the Constitution the rights of employees, including the right to go on strike, are regulated by law and by collective agreements. Both the Act and the general business collective agreement, relevant at the time, provided for out-of-court settlement of individual and collective labour disputes (see paragraphs 21 and 22 above). According to the relevant international law, States should “promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes” (see paragraph 25 above).

43. In its judgment of 10 May 2006 the Constitutional Court accepted the application of the Federation of Trade Unions and concluded, relying on the above legal instruments, that section 236(3) of the Act “introduced ... a requirement of prior exhaustion of out-of-court settlement proceedings before resorting to a strike, as a means of protection of economic and social rights”. Such an interpretation corresponds to the first sentence of this section, which clearly provides for compulsory conciliation prior to resorting to strike. That “friendly settlement of labour disputes ... if the strike has already begun is a means to achieve an out-of-court settlement of a particular dispute” (see paragraph 24 above) confirms that there is an opportunity for friendly settlement of labour disputes while a strike is pending, and does not overrule the requirement for compulsory conciliation before resorting to a strike. The court judgment of 7 September 2009 declaring the applicant union’s strike unlawful post-dated this decision and was in accordance with the interpretation provided by the Constitutional Court.

44. Having regard to the foregoing, the Court is satisfied that the law applied in the present case was formulated with sufficient precision, for the purposes of paragraph 2 of Article 11 of the Convention, to enable the applicant union to regulate its conduct. It was further in conformity with Article 6 § 4 of the European Social Charter (see paragraphs 25 and 28 above).

(b) Legitimate aim

45. As regards the legitimate aim, the Government argued that the court order declaring the applicant union’s strike unlawful was intended to protect the rights and interests of others, including the employer (see paragraph 32 above). The applicant union accepted that the impugned measure was intended to protect the economic interests of the employer (see paragraph 34 above). The Court finds no reasons to hold otherwise.

(c) Proportionality of the measure

46. The Court notes that in its judgment of 7 September 2009 the Skopje Court of Appeal established that the applicant union had gone on strike on 17 March 2009 notwithstanding that the negotiations had still been pending between the parties. That the parties were still negotiating when the applicant union had gone on strike on 17 March 2009 was not disputed between the parties, neither domestically nor before the Court. The court further held that, given the applicant union’s fresh requests that were not “covered” by the agreement of 13 November 2008, the strike of 17 March 2009 was a new strike and could not be regarded as a continuation of the strike announced on 4 November 2008 (see paragraph 16 above). Given its supervisory jurisdiction as to the interpretation and application of domestic law (see Federation of Offshore Workers’ Trade Unions and Others v. Norway (dec.), no. 38190/97, 27 June 2002), the Court does not find those findings unreasonable.

47. The Court further observes that the Act provided for the requirement of out-of-court settlement of labour disputes, which, as noted above, was to be exhausted before resorting to strike. Such a system of prior compulsory conciliation aims to ensure friendly settlement of labour disputes before resorting to a strike, which is the most powerful, but at the same time the most radical, instrument available to trade unions to protect the occupational interests of its members. The general business collective agreement relevant at the time further detailed the out-of-court settlement proceedings and limited their length to a maximum of fifteen days. While the domestic courts established that the sector collective agreement did not apply to the employer (see paragraph 15 above), no conclusion of fact and law was made as to whether the general business collective agreement was binding on the parties in the dispute. In the absence of any argument by the applicant union to the contrary, the Court cannot but conclude that the general business collective agreement was applicable in the present case. In such circumstances, the Court does not consider that the imposition of the fifteen-day compulsory conciliation, a form of cooling-off procedure, was disproportionate in the present case.

48. Furthermore, the Court notes that the court judgment of 7 September 2009 was issued after the applicant union’s members had exercised their right to strike for approximately six months (from March to September 2009). That judgment did not prohibit the right to strike as such, but it acknowledged that the applicant union had gone on strike contrary to the rules, specified in the Act. Such a judgment, in the Court’s view, does not appear disproportionate either.

49. Thus, the Court finds that the interference with the applicant union’s rights should be considered “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.

50. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 October 2015.

Søren NielsenAndrás Sajó
RegistrarPresident

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