RMT called a strike after June 2009 negotiations on pay and terms failed, and gave the ballot notice on 24 September, describing the worker category as ‘Engineer/Technician’.
It remains to be determined whether the statutory ban on secondary industrial action, as it affected the ability of the applicant to protect the interests of its Hydrex members, can be regarded as being “necessary in a democratic society”.
To be so considered, it must be shown that the interference complained of corresponds to a “pressing social need”, that the reasons given by the national authorities to justify it are relevant and sufficient and that it is proportionate to the legitimate aim pursued.
The Committee considers the acceptance of these considerations to be indispensable to maintaining the principle of legality and, consequently, to the certainty of law required for the proper functioning of the International Labour Organization.”97.
The Court does not consider that this clarification requires it to reconsider this body’s role as a point of reference and guidance for the interpretation of certain provisions of the Convention (see generally Demir and Baykara, cited above, §§65-86).
In any event, the respondent Government accepted in the present proceedings that the right afforded under Article 11 to join a trade union normally implied the ability to strike (see paragraph 62 above).
The foregoing analysis of the interpretative opinions emitted by the competent bodies set up under the most relevant international instruments mirrors the conclusion reached on the comparative material before the Court, to wit that with its outright ban on secondary industrial action, the respondent State finds itself at the most restrictive end of a spectrum of national regulatory approaches on this point and is out of line with a discernible international trend calling for a less restrictive approach.
The specialised international monitoring bodies operating under those procedures have a different standpoint, shown in the more general terms used to analyse the ban on secondary action.
In contrast, it is not the Court’s task to review the relevant domestic law in the abstract, but to determine whether the manner in which it actually affected the applicant infringed the latter’s rights under Article 11 of the Convention (see Von Hannover v. Germany (no.
This being so, the Court considers that the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained within the range of permissible options open to the national authorities under Article 11 of the Convention.
The Government have argued that the “pressing social need” for maintaining the statutory ban on secondary strikes is to shield the domestic economy from the disruptive effects of such industrial action, which, if permitted, would pose a risk to the country’s economic recovery.
Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (see in the context of Article 10 of the Convention the case MGN Limited v. the United Kingdom, no.
These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.
The applicant argued that it did, given its absolute character, which completely excluded any balancing of the competing rights and interests at stake and prohibited any differentiation between situations.
The Government defended the legislature’s decision to eschew case-by-case consideration in favour of a uniform rule, and contended that any less restrictive approach would be impracticable and ineffective.
As the materials in the case- file show, the very reason that caused Parliament to curb the broad scope for secondary action was its capacity, pre-1980, to spread far and fast beyond the original industrial dispute.
As has been recognised in the case-law, it is legitimate for the authorities to be guided by considerations of feasibility, as well as of the practical difficulties - which, for some legislative schemes, may well be large-scale - to which an individuated approach could give rise, such as uncertainty, endless litigation, disproportionate public expenditure to the detriment of the taxpayer and possibly arbitrariness (ibid.).
In this regard it is relevant to recall that for a period of ten years, 1980-1990, the United Kingdom found it possible to operate with a lighter restriction on secondary action (see paragraphs 23-24 above).
It is rather whether, in adopting the general measure it did, the legislature acted within the margin of appreciation afforded to it (Animal Defenders, §110) - which, for the reasons developed above, the Court has found to be a broad one - and whether, overall, a fair balance was struck.
Although the applicant has adduced cogent arguments of trade union solidarity and efficacy, these have not persuaded the Court that the United Kingdom Parliament lacked sufficient policy and factual reasons to consider the impugned ban on secondary industrial action as being "necessary in a democratic society”.
It has no competence to assess the respondent State’s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action.
Nor should the conclusion reached in this case be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and by the ECSR.