Aktuelt
Rederienes Landsforening
Pb. 5201 Majorstua
0302 Oslo Bergen 06.10.09 Vedrørende: Krenkelser på EMK artikkel 11 i
forhold til prinsippet om den frie og uhindrede forhandlingsrett på
vegne av våre medlemmer. Krav om forhandlingsrett. Det vises
til tidligere kontakt med Eide Marin Services, i forbindelse med
ovennevnte forhold. Et betydelig antall av de ansatte i Eide Marine,
er medlemmer av Fellesforbundet For Sjøfolk (FFFS).
Som deres fagforbund, er vi imidlertid avskåret fra å forhandle på vegne
av våre medlemmer.
Blokkeringen blir gjort, ut fra de avtaler som er nedfelt i Rederienes
landsforbund.
Det å blokkere for vår forhandlingsrett på vegne av våre medlemmer, er
et åpenbart og betydelig konvensjonsstridig inngrep i den frie
forhandlings- og organisasjonsretten og jeg kunne ha nøyd meg med å vise
til dommen fra i fjor hvor vi vant over Sjømannsforbundet. Det vises til
Høyesteretts dom av 27. November 2008. På tross av at Høyesterett
stadfester en sterk beskyttelse av den positive og negative
organisasjonsfriheten, konstaterer vi at det fortsatt, ved gjentatte
tilfeller, legges betydelige hindre i å utøve denne retten fritt.
For at dere skal forstå alvoret i de konvensjonsinngrep som
Rederienes landsforbund beskytter, viser jeg til WILSON, NATIONAL
UNION OF JOURNALISTS
AND OTHERS v. THE UK (no. 30668/96, 30671/96 and 30678/96) av ultimo
2002, premiss 41-48 og særlig det som er fremhevet med svart:
(Dette er bare et eksempel på flere dommer om samme tema fra
Strasbourg) B. The Court's assessment
1. General principles
41. The Court observes at the outset that although the essential object
of Article 11 is to protect the individual against arbitrary
interference by public authorities with the exercise of the rights
protected, there may in addition be positive obligations to secure the
effective enjoyment of these rights. In the present case, the matters
about which the applicants complain – principally, the employers'
de-recognition of the unions for collective-bargaining purposes and
offers of more favourable conditions of employment to Employees agreeing
not to be represented by the unions – did not involve direct
intervention by the State. The responsibility of the United Kingdom
would, however, be engaged if these matters resulted from a failure on
its part to secure to the applicants under domestic law the rights set
forth in Article 11 of the Convention (see Gustafsson v. Sweden,
judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II,
pp. 652-53, § 45).
42. The Court reiterates that Article 11 § 1 presents trade union
freedom as one form or a special aspect of freedom of association (see
National Union of Belgian Police v. Belgium, judgment of 27 October
1975, Series A no. 19, pp. 17-18, § 38, and Swedish Engine Drivers'
Union v. Sweden, judgment of 6 February 1976, Series A no. 20, pp.
14-15, § 39). The words “for the protection of his interests” in Article
11 § 1 are not redundant, and the Convention safeguards freedom to
protect the occupational interests of trade union members by trade union
action, the conduct and development of which the Contracting States must
both permit and make possible. A trade union must thus be free to strive
for the protection of its members' interests, and the individual members
have a right, in order to protect their interests, that the trade union
should be heard (see National Union of Belgian Police, cited above, p.
18, §§ 39-40, and Swedish Engine Drivers' Union, cited above, pp. 15-16,
§§ 40-41). Article 11 does not, however, secure any particular treatment
of trade unions or their members and leaves each State a free choice of
the means to be used to secure the right to be heard (see National Union
of Belgian Police, cited above, pp. 17-18, §§ 38-39, and Swedish Engine
Drivers' Union, cited above, pp. 14-15, §§ 39-40).
2. Application of these principles to the present case 43. The Court
notes that, at the time of the events complained of by the applicants,
United Kingdom law provided for a wholly voluntary system of collective
bargaining, with no legal obligation on employers to recognise trade
unions for the purposes of collective bargaining. There was, therefore,
no remedy in law by which the applicants could prevent the employers in
the present case from de-recognising the unions and refusing to renew
the collective-bargaining agreements (see paragraphs 12, 16, 19 and 26
above).
44. However, the Court has consistently held that although collective
bargaining may be one of the ways by which trade unions may be enabled
to protect their members' interests, it is not indispensable for the
effective enjoyment of trade union freedom. Compulsory collective
bargaining would impose on employers an obligation to conduct
negotiations with trade unions. The Court has not yet been prepared to
hold that the freedom of a trade union to make its voice heard extends
to imposing on an employer an obligation to recognise a trade union. The
union and its members must however be free, in one way or another, to
seek to persuade the employer to listen to what it has to say on behalf
of its members. In view of the sensitive character of the social and
political issues involved in achieving a proper balance between the
competing interests and the wide degree of divergence between the
domestic systems in this field, the Contracting States enjoy a wide
margin of appreciation as to how trade union freedom may be secured (see
Swedish Engine Drivers' Union, cited above, pp. 14-15, § 39; Gustafsson,
cited above, pp. 652-53, § 45; and Schettini and Others v. Italy (dec.),
no. 29529/95, 9 November 2000).
45. The Court observes that there were other measures available to
the applicant trade unions by which they could further their members'
interests. In particular, domestic law conferred protection on a trade
union which called for or supported strike action “in contemplation or
furtherance of a trade dispute” (see paragraph 29 above). The grant of
the right to strike, while it may be subject to regulation, represents
one of the most important of the means by which the State may secure a
trade union's freedom to protect its members' occupational interests (see
Schmidt and Dahlström v. Sweden, judgment of 6 February 1976,
Series A no. 21, p. 16, § 36, and UNISON, cited above). Against this
background, the Court does not consider that the absence, under United
Kingdom law, of an obligation on employers to enter into collective
bargaining gave rise, in itself, to a violation of Article 11 of the
Convention. 46. The Court agrees with the Government that the essence
of a voluntary system of collective bargaining is that it must be
possible for a trade union which is not recognised by an employer to
take steps including, if necessary, organising industrial action, with a
view to persuading the employer to enter into collective bargaining with
it on those issues which the union believes are important for its
members' interests. Furthermore, it is of the essence of the right to
join a trade union for the protection of their interests that employees
should be free to instruct or permit the union to make representations
to their employer or to take action in support of their interests on
their behalf. If workers are prevented from so doing, their freedom to
belong to a trade union, for the protection of their interests, becomes
illusory. It is the role of the State to ensure that trade union members
are not prevented or restrained from using their union to represent them
in attempts to regulate their relations with their employers. 47. In
the present case, it was open to the employers to seek to pre-empt any
protest on the part of the unions or their members against the
imposition of limits on voluntary collective bargaining, by offering
those employees who acquiesced in the termination of collective
bargaining substantial pay rises, which were not provided to those who
refused to sign contracts accepting the end of union representation. The
corollary of this was that United Kingdom law permitted employers to
treat less favourably employees who were not prepared to renounce a
freedom that was an essential feature of union membership. Such conduct
constituted a disincentive or restraint on the use by employees of union
membership to protect their interests. However, as the House of Lords'
judgment made clear, domestic law did not prohibit the employer from
offering an inducement to employees who relinquished the right to union
representation, even if the aim and outcome of the exercise was to bring
an end to collective bargaining and thus substantially to reduce the
authority of the union, as long as the employer did not act with the
purpose of preventing or deterring the individual employee simply from
being a member of a trade union.
48. Under United Kingdom law at the relevant time it was,
therefore, possible for an employer effectively to undermine or
frustrate a trade union's ability to strive for the protection of its
members' interests. The Court notes that this aspect of domestic law has
been the subject of criticism by the Social Charter's Committee of
Independent Experts and the ILO's Committee on Freedom of Association (see
paragraphs 32-33 and 37 above). It considers that, by permitting
employers to use financial incentives to induce employees to surrender
important union rights, the respondent State has failed in its positive
obligation to secure the enjoyment of the rights under Article 11 of the
Convention. This failure amounted to a violation of Article 11, as
regards both the applicant trade unions and the individual applicants.
Det faktum at vi er utelukket fra å føre forhandlinger på vegne av
våre medlemmer, er således utvilsomt i strid med EMK art 11. Det er for
øvrig også i strid med Den Europeiske Sosialpakt, og da særlig artikkel
5. Denne krenkelsen vil forsterke seg, så lenge denne vedvarer.
Det bes således om at krenkelsen opphørere med umiddelbar virkning.
Alternativt må vi forfølge denne saken rettslig. I så måte vil
adressatene for søksmålet være de rettssubjekter som hindrer den frie
forhandlingsrett i denne sak.
I så måte bes om at det, innen en uke fra dette brev, opphører med de
konvensjonsstridige handlinger. Med Vennlig hilsen FFFS Leif R.
Vervik
Formann
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