BARIŞ v Turkey
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Judgement date :14/12/2021
In this case, the applicants complained of a violation of Article 11 of the European Convention on Human Rights (ECHR) upon being dismissed following a strike, on the grounds that they had been absent without justification. The European Court of Human Rights (ECtHR) found the claim inadmissible.
The facts concern a strike that took place fin 2015, to challenge the provisions of the collective agreement concluded in autumn 2014 between the trade union Türk Metal, to which the applicants were affiliated, and MESS, their employer's trade union. About 4,000 workers chose to leave the Türk Metal trade union and 1,000 to 1,500 of them joined the Birleşik Metal İş trade union. Upon returning to work, 50 workers, including the applicants, were dismissed, on the ground that they had been absent from work without leave or excuse. The applicants complained that this dismissal was an infringement of their trade union rights. specifically their right to strike.
In its judgement, the ECtHR focused not on whether individual workers, outside the framework of action organised by a trade union, have the right under national or international law to initiate or participate in a strike, but rather on whether such a right falls within the scope of Article 11 of the Convention.
While noting that, according to its settled case-law, strikes are in principle protected by Article 11 of the Convention, the ECtHR considered however that a strike protected by Article 11 is an instrument available to a trade union to defend the professional interests of its members. Conversely, it has never accepted that a strike conducted not by a trade union but by members of that trade union or by non-members can also benefit from the protection of Article 11. In other words, strike action is, in principle, protected by Article 11 only to the extent that it is organised by trade union bodies and considered to be an actual - and not merely presumed - part of trade union activity. [Para. 45].
The ECtHR concluded that since, on the basis of the material in the case file, the applicants had not been dismissed for participating in a demonstration organised by the trade union or for asserting occupational rights within the framework of the trade union's activities or for leaving a specific trade union or for deciding not to join a specific trade union, they could not effectively claim a right to freedom of association protected by Article 11. [Para. 53].
The applicants' complaint under Article 11 of the Convention was thus considered incompatible ratione materiae with the provisions of the Convention and for these reasons declared inadmissible. [Para. 55].