ECHR ruling on the use of boycott as labour conflict
The European Court of Human Rights (ECHR) has today ruled in the so-called Holship case. LO and NTF (Norwegian Transport Workers' Union) had made a complaint against Norway because they believed the freedom of association under Article 11 of the ECHR was violated when a notified boycott was declared illegal by the Supreme Court. The ECHR acquitted Norway but recognizes that a boycott as a labour conflict may be protected by the ECHR and that restrictions on the right to a boycott require a proper balancing of interests.
The background for the case was that NTF in 2013 submitted a request for a collective agreement to the company Holship Norge AS, which, among other things, operated in the port of Drammen. When Holship did not respond to the demand, NTF announced a boycott. The boycott was to prevent employees in Holship from unloading and loading ships in the port of Drammen, and which Holship was to send or receive. The purpose was to force Holship to join a collective bargaining agreement.
The collective agreement that NTF wanted gives workers, who are employed at the so-called Administration Office for Port Work in the Port of Drammen, preferential rights to unloading and loading work in the port. Historically, the agreement is related to the fact that the port workers were freelancers without security for work and wages. To remedy this, a fixed wage system was established for unloading and loading workers.
The system is organized so that the workers are employed at the so-called Administration Office for Port Work in the Port of Drammen, which sells unloading and loading services to users of the port. The administration office is headed by a board with representatives of both the port users and the port workers and shall not provide financial benefits.
By joining the collective agreement, Holship would be obliged to purchase unloading and loading services from the Administration Office and could no longer choose to use its own employees for this work.
NTF brought the case before the court to establish that the announced boycott was legal. Both the district court and the court of appeal concluded that the boycott was legal. However, the Supreme Court reached the opposite result (dissent 10-7), referring to the fact that the boycott placed too great a restriction on Holship's right to free establishment within the EEA area.
The majority of the Supreme Court (ten judges) did not decide whether a boycott that is not part of a strike is protected by Article 101 of the Constitution and Article 11 of the European Convention on Human Rights. However, the court pointed out that the effect of the announced boycott was to limit access to the market for unloading and loading services in the port. It therefore considered that the boycott would be a significant interference with the right of establishment that follows from the EEA rules.
It was also pointed out that the boycott would have a negative impact on Holship's own employees, and that these workplaces had no less protection than the workplaces at the Administration Office. The Supreme Court therefore concluded that the notified boycott was not a proportionate interference with the right of establishment and was thus illegal.
The minority in the Supreme Court (seven judges) concluded that the boycott was not in breach of EEA rules. They therefore did not need to take a position on the protection pursuant to section 101 of the Constitution and Article 11 of the European Convention on Human Rights.
Article 11 of the European Convention on Human Rights gives the right to freedom of association, including the right to form and join trade unions. The provision has been interpreted that it also gives trade unions the right to use labour conflicts - for example strikes - as a means of pressure on employers. However, it does not give any right to achieve ones demands or a right to a collective agreement.
It has previously been unclear whether the right to a labour conflict under Article 11 of the European Convention on Human Right also includes a boycott. In today’s judgment, the ECHR states that a boycott under the auspices of a trade union may be protected by Article 11 of the European Convention on Human Rights. The court points out in this connection that a boycott may be the only way the union can exert pressure on an employer to defend the members' interests. The court also assumes that the boycott announced by NTF was intended to safeguard the interests of the employees by ensuring stable and safe working conditions for the port workers.
However, the right to boycott is not unconditional, and the ECHR makes it clear that states have a wide margin of discretion as to what restrictions can be placed on this right. This is because balancing the interests of employers and employees is a difficult issue, and there are major differences between European countries when it comes to the rules for the labour conflict.
In the judgment, the ECHR accepts that rights that follow from EEA law, including the freedom of establishment, may justify interference with the freedom of association. At the same time, the Court indicates that freedom of establishment is not an equal right, but that it is a factor in assessing whether the interference with freedom of association is proportionate.
The Court also emphasizes that financial interests cannot in themselves be decisive in the assessment of proportionality, and that the assessment must be made in a way that ensures that freedom of association does not become without real content.
