The Constitutional Court found No 16 / 2007 Coll.
The Constitutional Court's finding of 5 October 2006 on the application for annulment of certain provisions of Section 17 of Act No. 2 / 1991 Coll., on collective bargaining, as amended
Valid
Text versions:
01.02.2007
16
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 5 October 2006 in plenary in the composition of Stanislav Balík, František Duchoň, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krůk, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel Rychetský (Judge Rapporteur), Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of a group of 42 Members of the Chamber of Deputies of Parliament of the Czech Republic, represented by the Member of Prof. JUDr. Zdeněk Jičín, DrSc., on the abolition of the provisions of § 17 (1) of the above-level contract, "if it agrees with at least half of the members of the employees of the contract."
as follows:
Motion denied.
Reasons
Recital of the proposal
1. By a proposal made pursuant to Article 64 (1) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, a group of 42 Members of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the appellant") sought the issue of a finding by which the Constitutional Court would annul the provisions of § 17 (1) of the sentence which reads "if at least half of the employees to be covered by this collective agreement agree with it."
2. The appellant stated that, under the contested provisions of the Collective Negotiation Act, a strike in a collective agreement dispute is only possible if at least half of the employees to whom the collective agreement is to apply agree with it. In doing so, the trade union competent authority shall notify the employer in writing at least three working days in advance of the list of representatives of the trade union competent to represent the participants in the strike and at least one working day before the strike begins, of the list of employees who are participants in the strike.
3. The contested provisions of the Act on Collective Negotiations are contrary to Article 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), according to which the Czech Republic is a sovereign, unified and democratic rule based on respect for human rights and freedoms, Article 10 of the Constitution, according to which the ratified and declared international treaties on human rights and fundamental freedoms by which the Czech Republic is bound, directly binding and taking precedence over the law (the Convention on the Implementation of the Principles of the Law of Organising and Collective Procurement), Article 8 of the International Pact on Economic, Social and Cultural Rights (proclaimed under No 120 / 1976 Coll.), which guarantees the right to strike, the Convention of the International Labour Organisation (hereinafter referred to as "MOP"). "According to the appellant, these conventions do not explicitly mention the right to strike, but that right results from freedom of association. According to the appellant, the contested provisions of the Collective Negotiation Act are further contrary to Article 27 (4) of the Charter of Fundamental Rights and Freedoms (" the Charter ') and Article 4 of the Charter.
4. The opposition to the contested provisions of the Act on collective bargaining with quoted constitutional laws and international treaties is seen by the appellant in the fact that the conditions laid down for declaring strikes are, in their consequences, a serious restriction on the right to strike as an important tool to defend the economic and social interests of workers. "The requirements resulting from the contested provisions of the law are significant obstacles to the proper exercise of the right to strike by workers. In practice, these conditions lead to intimidation, discrimination and even redundancies. They therefore prefer to give up their right to strike in fear of possible consequences and are thus deprived of their constitutional order of the Czech Republic of the guaranteed right."
5. According to the appellant, the contested legislation also contradicts the opinions of the International Labour Office (ILO). According to the decision-making practice of the authorities of the ILO, the Committee on Freedom of Association and the Committee of Experts, the request for a decision of an 'absolute majority' (sic!) of all workers concerned by the declaration of strike is disproportionate and could unduly impede the possibility of the strike being carried out, particularly in large enterprises. The requirement of an absolute majority of workers to declare a strike may cause problems, especially in the case of trade unions which bring together a large number of members. The requirement to procure an absolute majority may therefore include the risk of a serious restriction on the right of strike [the applicant referred to Freedom of association - Digest of decisions and principles of the Freedom of Association Committee of Governing Body of the ILO, fourth (revised) edition, 1996, Articles 507 and 508].
6. The appellant pointed out the experience of the Slovak Republic, which had similar legislation until the amendment carried out by Act No 209 / 2001 Z. The reason for this amendment was a complaint lodged with the Ministry of Transport by the railway industry against the Government of the Slovak Republic. The provisions of the Act have been amended so that the strike can be declared if the majority of the employer's employees involved in the vote on the strike are agreed with it, provided that the majority of the employees counted from all employees are taken part in the vote, and that the relevant trade union body notifies the employer at least three working days before the strike, of the names of representatives of the relevant trade union body authorised to represent the participants in the strike. The Committee on Freedom of Association has allegedly responded to this new legislation in such a way that the provision under which the strike must be approved by an absolute majority of the workers involved in the strike voting is in line with the principles of freedom of association. The Committee acknowledged that the reorganisation of the form of the appointed lists submitted is an improvement compared to the current text, but considers that its practical application could lead to discrimination and repression against trade unions listed in the list. The Committee recalled that protection against trade union discrimination activities is desirable in particular in the case of trade union representatives in order to allow them to exercise their trade union obligations in full independence.
7. Therefore, for these reasons, the appellant sought the issue of the finding as mentioned above.
Proceedings and recap of the observations of the parties
8. On the invitation of the Constitutional Court, the Chamber of Deputies of the Parliament of the Czech Republic submitted observations by the mouth of its then President, PhDr. Lubomír Zaorálka, pursuant to Article 69 of the Law on the Constitutional Court. It admitted that in our legal order only a collective bargaining strike (collective bargaining law) is regulated and not a strike of other species. If there is no conclusion of a collective agreement even after the proceedings before an intermediary and the parties do not request the dispute to be resolved by the arbitrator, a strike may be declared as an extreme instrument in the collective agreement dispute. In order to eliminate so-called wild strikes, the basic condition for declaring strike by the competent trade union body is that at least half of the employees to whom the collective agreement is to apply agree. By establishing this condition, it is stressed that the strike is considered to be an extreme device. It is not desirable that such a serious step should be decided only by the trade union body without the consent of the majority of the trade union members.
9. According to the Chamber of Deputies, peace of mind in the dispute over the conclusion of a collective agreement and a swift termination would not have contributed if the employer and all the striking workers had acted together. It is therefore stipulated that the competent trade union body should submit to the employer a list of representatives of the trade union body authorised to represent the participants in the strike. A smaller number of negotiators will be easier to reach an agreement.
10. Every employee has the right to freely decide whether or not to join the strike. Such a decision has consequences in terms of its labour and social claims. The employer should therefore know the number of people and the structure of the work shifts at the time of the strike. Employees who are not participants in the strike will be allowed to do the work and, if, as a result of the strike, they cannot do the work or do other work, their wage entitlements shall be governed by the provisions on pay in the performance of other work or, where appropriate, by compensation for the wage in the obstacle to work on the employer's part. The names of the participants are therefore used to distinguish between who is and who is not a participant in the strike. The striking participation in the strike is considered to be an excused absence of work, for which there is no wage or compensation for wages, and they are not entitled to sickness and support during the strike when treating a member of the family, provided that the conditions for providing such benefits were met at the time of participation in the strike.
11. The Chamber of Deputies stated that the Act on Collective Negotiations was adopted after a properly implemented legislative process, signed by the relevant constitutional authorities and declared in the Collection of Laws. According to her, the legislature acted in the belief that the adopted law was in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic.
12. The Senate of the Parliament of the Czech Republic, by the mouth of its President, MUDr. Přemysl Sobotka, stated in his observations that the draft provisions of the Act on Collective Negotiations had been approved when the Senate had not yet been established.
13. In fact, he noted on the proposal that both the Charter and the relevant international treaties, in which the right to strike is expressly regulated, provide for a closer regulation of that law in the form of a law, whereby any restrictive legal regulation must comply with the criteria laid down. From this point of view, as regards the quorum of the number of employees required to decide on the strike, it may be a question of assessing what number of employees should be considered appropriate to decide on this. It is quite clear that strike can have serious economic consequences not only for employers, but also in its effects for workers, including those who do not want to strike, and, depending on the nature of the employer's activity, it can also have consequences for other employers or for other citizens directly or indirectly. The Senate referred to the conduct of the Act on Collective Negotiations in the Federal Assembly, which shows that representatives of employers and trade unions agreed on the relevant case in tripartite negotiations, and the government party did not interfere with the arrangement.
14. As regards the obligation of the trade union body to notify the employer in writing at least three working days in advance of a list of representatives of the relevant trade union body who are entitled to represent the participants in the strike, the Senate stated that protection against any discriminatory actions of the employer, at the risk of which the applicant points, should hardly consist of any "classified" trade union officials, but in a positive legal regulation protecting them from any discrimination or illegal sanctions. Such an arrangement is provided for in the Labour Code, in particular in Sections 1 (4) to (8) and 7 (2) to (6), and in this sense the activities of trade unions are also subject to judicial protection.
15. Similarly, the parties to the obligation to present a list of strikers may refer to the Labour Code, which clearly implies that any intimidation, discrimination and even dismissal of employees would be contrary to the law and the right of the strike would be subject to judicial protection. It is quite clear that, if the employer had not received the list of participants in the strike in this way, he would have had to arrange it for himself, for example, for the purposes of assessing the wage entitlements of employees participating in the strike or for assessing the rights of such employees from sickness and social security (Sections 22 to 24 of the Collective Negotiation Act).
16. Finally, the Senate noted that the contested provisions do not restrict the right to strike in a collective agreement dispute beyond the principles laid down in Article 4 of the Charter and in the relevant provisions of the international treaties. The conditions laid down may be considered appropriate for the above reasons.
Recital of observations of other bodies under Section 49 of the Constitutional Court Act
17. According to Article 49 (1) of the Constitutional Court Act, the Constitutional Court and the participants of the so-called tripartite, i.e. institutionalised social dialogue between the government, trade unions and employers, addressed and gave them the opportunity to comment on the proposal.
18. The Czech-Moravian Confederation of Trade Unions, in its statement of 20 January 2005 by its President Milan Štáho, welcomed and supported the proposal of a group of Members. According to her, the legislation contained in the Collective Negotiation Act is merely a formal guarantee of the right to strike. The legal obligation to provide the employer with a list of employees participating in the strike leads in practice to workers being threatened by sanctions by the employer, in particular by subsequent redundancies, or by various forms of bullying for their possible participation in the strike. This leads to situations where workers show their will to strike, but when they find out that they will be included on the list to be submitted to the employer, they waive this right out of reasonable fear of possible sanctions. Thus, trade unions will not receive the required absolute majority of all employees to support the strike, thereby losing the opportunity to effectively defend workers' interests vis-à-vis the employer. The closer identification of strike workers and the establishment of too high a quorum to declare strike leads to restrictions on freedom of trade union organisation and the right to strike. According to the Czech-Moravian Trade Union Organisation, the contested provisions of the Collective Negotiation Act are contrary to the ratified and declared international treaties, Article 27 of the Charter and the established decision-making practice of the International Labour Organisation.
19. The Association of Industry and Transport of the Czech Republic did not use the opportunity to comment on the proposal or to take over the consignment with the invitation of the Constitutional Court.
20. The Confederation of Employers' and Business Unions of the Czech Republic stated in its observations of 31 January 2005 that it did not agree with the proposal of a group of Members. In its view, it is unthinkable that the strike should take place as a last resort in a collective agreement dispute unless at least half of the employees agree to its conduct. There is no denying the right of a majority, which is the fundamental principle of democracy. Submission of the name list of employees is also a necessary means, because otherwise there is no other evidence of who is a participant in the strike and who is abusing the interruption. The employer must know who is on strike and who is not, also in view of the other obligations arising for him from the labour legislation and other regulations (e.g. determination of work breaks, safety and health at work, drawing time off for further obstacles to work on the part of the worker, etc.). According to the Confederation of Employers' Association of the Czech Republic, the assumption that employers abuse their position towards participants in the strike is unfounded. By abolishing the contested provisions, the balance in the relationship between the employer and the employee would be severely impaired for both sides of complex situations.
21. The Government of the Czech Republic, under the Presidency of JUDr. Stanislav Grosse, adopted its resolution No. 140 of 2 February 2005 on the proposal of a group of Members. The Government initially stated that the Act on collective bargaining was adopted before the adoption of the Charter.
22. On the question of quorum for strike, the government said that strike is such a serious act that it is necessary to prevent it from being declared only a relatively small number of radical workers, and a majority that, for example, would prefer further negotiations would thus have to be subordinate to a minority. The strike is the last possible means of enforcing workers' requirements, it may have economic and adverse consequences for employees, so that the condition of the consent of at least half of the employees to be covered by the collective agreement was considered appropriate when formulating the contested provisions. For the sake of completeness, the Government noted that in the proposal cited in Articles 507 and 508 of the Selection of Decisions and Principles of the Committee on Freedom of Association of the Administrative Board of the International Labour Office, it expressed its views on the requirement of the consent of "an absolute majority of employees' or" an absolute majority 'of employees, whereas in § 17 (1) and (2) of the Collective Negotiation Act, the consent of "at least half of the employees to whom the contract is to be concluded' is required, while employees who are not included in the total number of employees and do not take part in the vote on the strike. It follows that the condition in the contested provisions includes fewer employees than the absolute majority of employees.
23. As regards the name list of representatives of the relevant trade union body, the Government considered that the so-called strike committee, which is responsible for negotiating for striking workers, was established. However, even after the strike is announced, further negotiations are ongoing between the employer and the strikers or those who are entitled to represent the strike participants. The employer must therefore be aware of who represents the strikers. The Government pointed out that the provision of Paragraph 17 (4) (c) of the Collective Negotiation Act follows an additional sentence which would become irrelevant and meaningless by its abolition. In this respect, the proposal submitted by the Government is incomplete and confusing.
24. On the nominal list of participants in the strike, the Government stated that the reason for the contested legislation was to enable the employer to fulfil the obligation under Paragraph 22 (4) of the Collective Negotiation Act, i.e. to prepare work for workers who will not strike. At the same time, this list is intended to be used to assess and satisfy claims under § 22 to 24 of the Act.
25. In conclusion, the Government noted that in recent years the possibility of amending certain provisions of the Collective Negotiation Act was considered, but there was neither political nor substantive consensus between the social partners. However, along with the proposal for a new Labour Code, the Government is also preparing a draft amendment to the Act on Collective Negotiations, in which it proposes to amend the contested provisions.
Dedication of the contested provisions of the law and their legislative history
26. The Constitutional Court notes that the draft contested part of the provision of Paragraph 17 of the Collective Negotiation Act (highlighted in bold) has now been as follows:
(1) The strike shall be declared in a dispute concerning the conclusion of a collective enterprise agreement and shall be decided by the competent trade union body if at least half of the employees to whom the contract is to apply agree with it.
(2) In a dispute over the conclusion of a collective agreement of a higher degree, the strike is declared by the competent higher trade union. The competent trade union authority shall decide to initiate the strike if at least half of the employees to whom the collective agreement of a higher degree is to apply agree to it.
(3) The announcement and initiation of a solidarity strike shall be treated mutatis mutandis in accordance with the preceding paragraphs.
(4) The competent trade union must notify the employer in writing at least three working days in advance
(a) when the strike will commence;
(b) the reasons and objectives of the strike;
(c) a list of representatives of the relevant trade union body authorised to represent participants in the strike.
The trade union competent authority shall notify the employer in writing of any changes to the list referred to in point (c).
(5) The trade union competent authority shall submit to the employer at least one working day before the strike begins a list of staff members participating in the strike.
(6) The staff referred to in § 20 (g), (h), (i), (j), (k) shall not be included for the purpose of determining the total number of employees nor shall they take part in the vote on the strike. The vote shall be taken by the trade union competent authority. ';
27. Paragraph 17 of the Collective Negotiation Act was approved in the same wording as the Czechoslovak Government proposed to the Federal Assembly. In the explanatory memorandum to the draft law, the Government stated, inter alia,: "The regional means of the collective agreement dispute is... strike and lockout; their announcement, course and termination are proposed to be adapted in the interests of legal certainty for employers and employees.... The proposal is based on the principle that, in the event of a collective dispute concerning the conclusion of a collective agreement, this must be dealt with primarily in the proceedings before an intermediary. However, where a collective dispute concerning the conclusion of a collective agreement is not resolved in the proceedings before an intermediary and the parties do not request the settlement of the dispute by the arbitrator, a strike may be declared as the final means of resolving the dispute. Such a collective dispute resolution cannot be regarded as a breach of the right to strike but as an indication of the exceptional and extreme means of enforcing workers' demands. The proposed legislation on strike is based on the role of trade unions as advocates of the legitimate demands of workers. It is therefore also stated in Section 17 that the strike for the conclusion of a collective enterprise agreement can be declared and decided by the relevant trade union body if at least half of the employees agree with it. The strike for the conclusion of a higher collective agreement shall be declared by the relevant higher trade union body, the opening of such a strike shall be decided by the competent trade union body if at least half of the employees to whom the collective agreement of a higher degree is to apply agree with it.... In order not to distort the results of the vote on the strike, the proposal provides that, in order to establish the necessary quorum, the staff referred to in Article 20 of the proposal are not included.... For the sake of free expression of the will of the employees, Paragraph 18 provides that workers must not be prevented from taking part in the strike or be forced to participate in the strike." (see website http: / / www.pspp.cz / eknih / 1990fs / prints / t0260 _ 01.htm, visit 2.10.2006).
Conditions of the applicant's active legitimacy and proceedings before the Constitutional Court
28. The proposal was submitted by a group of 42 Members of the Chamber of Deputies of the Parliament of the Czech Republic, represented by one of them, Member JUDr. Zdeněk Koudelka, Ph.D. The Constitutional Court notes that this group of Members was a legitimate appellant under Paragraph 64 (1) (b) of the Law on the Constitutional Court at the time the application was lodged, as at least 41 Members are required to submit the application.
29. In the course of the proceedings, the representative of the appellant JUDr. Zdeněk Koudelka, Ph.D., informed the Constitutional Court that he had ceased to be a Member and a lawyer and that he was therefore no longer in charge of hearing for a group of Members in this matter. In the course of the proceedings, the term of office of the Chamber of Deputies of the Parliament of the Czech Republic has also ended, of which the draftsman - a group of Members - has been composed, and only some of them have again become Members in the elections to the Chamber of Deputies of the Parliament of the Czech Republic held on 2 and 3 June 2006. The Constitutional Court, in accordance with its previous case law [cf. the Constitutional Court's finding, sp. zn. Pl. ÚS 42 / 95, published as Found No 47, Volume 5 of the Collection of Finals and Order of the Constitutional Court ("the Reports of the Judgments'), p. 388, 390; issued under No. 192 / 1996 Coll.], states that the conditions of the applicant's active legitimacy - a group of Members - in the procedure for the control of the standards must be assessed at the time of the initiation of the procedure. It follows from the requirement to protect constitutionality that the Constitutional Court should act for reasons of general interest in the case already opened, even though the appellant - a group of Members - has crumbled by the fact that parts of them have ceased to exist and parts of them have created a new parliamentary mandate.
30. The President of the Chamber of Deputies of the Czech Republic Ing. Miloslav Vlček disagreed with the abandonment of the oral hearing pursuant to Article 44 (2) of the Law on the Constitutional Court held an oral hearing on 5 October 2006, at which only her Vice-President JUDr. Vojtěch Filip appeared on behalf of the Chamber of the Parliament of the Czech Republic, no one, the representative of the appellant apologized from the oral hearing. The Vice-President of the Chamber of Deputies of the Parliament of the Czech Republic referred to the written observations of the President of the Chamber of Deputies of the Parliament of the Czech Republic, did not raise any proposals to supplement the evidence and did not make any final proposal for a decision.
Constitutional conformity of the legislative process
31. According to Article 68 (2) of the Law on the Constitutional Court, the Constitutional Court is to determine, in addition to assessing the compliance of the contested law with the constitutional laws, whether it has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. It is based on Paragraph 66 (2) of the Law on the Constitutional Court, according to which the proposal is inadmissible if the constitutional law with which the contested regulation is in conflict, according to the proposal, has ceased to be valid before the application of the Constitutional Court. It follows from this that, for legislation issued before the entry into force of the Constitution (1 January 1993), the Constitutional Court is entitled to examine only their content compliance with the existing constitutional order, but not the constitutionality of the procedure for their formation and observance of the standard competence (see also the finding of the sp. zn.
32. In the present case, the Constitutional Court therefore did not establish whether Act No. 2 / 1991 Coll., on Collective Negotiations, was adopted and issued within the limits of the then Federal Constitution established competence and prescribed by it. The Constitutional Court also did not address other amendments to the Act on Collective Negotiations as they were not affected by the contested provisions of the Act.
33. Act No. 264 / 2006 Coll., amending certain laws in connection with the adoption of the Labour Code, with effect from 1 January 2007 amends, inter alia, Sections 17 (1), 17 (2), 17 (4) (c) and repeals Article 17 (5) of the Act on Collective Negotiations, i.e. those provisions which a group of Members proposes to abolish. However, at the time of the decision of the Constitutional Court, the contested provisions of the law are valid and effective and may apply to legal relations arising until 31 December 2006. Therefore, the conditions for the termination of proceedings under Paragraph 67 (1) of the Constitutional Court Act are not laid down. If the Constitutional Court waited a few months for the contested provisions to expire, it could rightly be criticised for alibitically avoiding the fulfilment of its constitutional protection mission. In the past, he has also agreed to a substantive discussion of the proposal to abolish the provisions of the law in a situation where there were only a few days until its delegation (see the find sp. zl. ÚS 42 / 03, published under No. 280 / 2006 Coll.).
Evaluation of the Constitutional Court
34. The task of the Constitutional Court in this case is to assess whether the legislation on the conditions of the lawfulness of the strike will stand up in a collective agreement dispute, in an abstract position, from the point of view of the constitutional order of the Czech Republic. The first step must be to answer the question of whether and how the strike in constitutional law is regulated and what the rules of law result from.
35. The appellant refers, in his argument, to Article 1 of the Constitution, according to which the Czech Republic is a sovereign, unified and democratic rule of law based on respect for the rights and freedoms of man, and, by virtue of Article 10 of the Constitution, which incorrectly cites the already invalid text, points to Article 8 of the International Covenant on Economic, Social and Cultural Rights, ILO Convention No 87 on Freedom of Association and Protection of the Right to Organise and ILO Convention No 98 on Implementation of the Principles of the Right to Organise and Collective Negotiations. The appellant also argues in Article 27 (4) of the Charter that the right to strike is guaranteed under the conditions laid down by law.
36. The Charter regulates the right to strike as part of economic, social and cultural rights (Title Four of the Charter). The importance of this right or the strength of its constitutional guarantee is, however, relativised: Article 27 (4) The Charter expressly provides that the conditions for exercising the right to strike shall be laid down by law and in accordance with the provisions of Article 41 (1). The Charter can be invoked only within the limits of the laws transposing these provisions, according to the articles of the Charter listed here, i.e. the right to strike. Otherwise, the text of the Charter of the legislator does not tie more specifically the limits and conditions for exercising the right to strike. On the contrary, in relation to certain professions (those in the professions which are immediately necessary for the protection of life and health, in addition to those of civil servants and local authorities in the positions determined by the law), the legislature allows the right to strike by law (Article 44 of the Charter), or certain professions (judges, prosecutors, members of the armed forces and security forces), to be denied by the Charter (27 (4).
37. Similarly, in a general way (wording deviations are not essential in the present case), the right to strike is also guaranteed in Article 8 (1) (d) of the International Covenant on Economic, Social and Cultural Rights: the State undertakes to ensure the right to strike provided it is exercised in accordance with the laws of the country concerned. Article 8 (2) of the Pact allows the imposition of legal restrictions on the exercise of that right for members of the armed forces or police or administrative authorities of the State.
38. On the other hand, in ILO Conventions No 87 on Freedom of Association and Protection of the Right to Organise and No 98 on the Implementation of the Principles of the Right to Organise and Collectively negotiate an explicit guarantee of the right to strike; According to the appellant, the right to strike results from the freedom of association itself. However, given the explicit constitutional guarantee of the right to strike in the Charter, the Constitutional Court does not find any reason to theorise that the right to strike may exist as a fundamental right from the right to associate freely with others to protect their economic and social interests, while at the same time avoiding such considerations.
39. If the appellant invokes the opinions of the International Labour Office or its Audit Committees, the Constitutional Court notes that this international organisation is not an international court and its acts or the opinions of its institutions are not a source of constitutional or other law in the Czech Republic and does not form part of its constitutional or legal order. These opinions are addressed to the governments of the Member States of the International Labour Organisation (ILO), or its conventions, and have the character of an international non-legally binding recommendation (soft law). The reference basis for the Constitutional Court in proceedings concerning the control of the constitutionality of the law cannot in any way and will not happen even if the intellectual wealth contained in such sources is used by the Constitutional Court as an inspiration or as a basis for comparative reasoning in interpreting the standards of Czech constitutional law.
40. In view of the above, the provisions of Articles 27 (4) and 41 (1) of the Charter should therefore be interpreted as recognising and guaranteeing the right to strike in a general position. This right is, in principle, for all persons without distinction (with the exception of judges, prosecutors and members of the armed forces and the Security Corps) and to the same extent. The law may limit them only to persons in the professions and in the activities listed in Article 44 of the Charter. The Charter entrusts the legislator with the establishment of specific conditions for the exercise of this right or its limits, while enjoying a relatively wide margin of discretion.
41. However, even here the legislator must not act arbitrarily, which means that the legislator must, with the exception mentioned above, respect the principle of equality and lay down the limits on the right to strike in the same way for all cases which meet the conditions laid down (Article 4 (3) of the Charter). However, the legislature must not act unreasonably either. In view of Article 41 (1) The Charter does not need to be a legal regulation of the right to strike in a strict relation to proportionality to the objective pursued by regulation, i.e. it does not need to be a measure in a democratic society, such as other rights that can be relied upon directly from the Charter (e.g. the right to associate freely in accordance with Article 20 (1) and (3) of the Charter and Article 41 (1) of the Charter and contrario, or the right to associate freely with others to protect their economic and social interests under Article 27 (1) and (3) of the Charter and Article 41 (1) of the Charter and contrario). The constitutional test in this sense will be passed by a legal regulation that can be identified as pursuing a legitimate objective and which does so in a way that can be seen as a reasonable means of achieving it, even if it does not necessarily have to be the best, the most appropriate, the most effective or the most wise.
42. Finally, the legislator must investigate the substance and meaning of the right to strike (Article 4 (4) of the Charter). Therefore, for example, the right to strike cannot be fully prohibited or restricted to persons in professions or activities other than those listed in Articles 44 and 27 (4) of the Charter. Nor can it be possible to lay down conditions for the exercise of this right, which would not be realistically possible, so that the guarantee of the right to strike would become merely an illusory declaration.
43. The right to strike is governed by law only in the field of collective bargaining by the Act on collective bargaining, which includes the contested provisions. The lack of legal regulation of the right to strike in other areas of labour relations did not address the Constitutional Court in the light of the proposal put forward. Therefore, it only marginally states that Article 27 (4) The Charter can also be interpreted as meaning that the legislator is obliged to "implement" the right to strike. Should this be omitted, the situation could be considered as an unconstitutional omission of the legislator or an unconstitutional loophole in the law (cf. Sp. zn. Pl. ÚS 20 / 05 of 28 February 2006, published under No 252 / 2006 Coll.). However, this does not mean that the right to strike is completely denied by law in such a situation; the non-sustainability of such interpretation stems from Article 4 (4) of the Charter, according to which, when applying the provisions on the limits of fundamental rights and freedoms, the substance and the meaning of the fundamental law must be investigated. Even in such a case, in the absence of legal regulation, the courts would have to provide protection to that right in essence, otherwise they would have committed a denial of justice (principle of banning denegationis iustiae). The conditions for the exercise of that right and its limits would then have to be resolved on a case-by-case basis; Compare, for example, the decision of the Supreme Court sp. zn. 21 Cdo. 2489 / 2000 of 22 January 2002.
44. The contested provisions of the Collective Negotiation Act, which make the exercise of the right to strike subject to a number of procedural conditions, undoubtedly affect and restrict the right to strike. It is also clear that this has become the form that the Charter prescribes, i.e. by law. Therefore, it remains to be assessed whether the contested provisions pursue a legitimate objective and whether they are a reasonable measure and not an arbitrary or unsparing substance and the meaning of the right to strike.
45. It can be concluded from the explanatory memorandum to the draft act on collective bargaining, as well as from the comments of the legislature and the government sent to the proposal by the group of Members that the contested provisions of the collective bargaining law are aimed at protecting the principle of legal certainty of the participants in the collective agreement negotiations, i.e. the participants in labour relations, i.e. employers and employees, an interest in eliminating so-called wild strikes, ensuring the representativeness of the trade union body which collectively negotiates for workers and which declares the strike as an extreme means of defending the rights and free will of workers who do not want to participate.
46. The basic obligation of a staff member in an employment relationship is the personal performance of an agreed type of work as instructed by the employer. A unilateral suspension of work is therefore an unlawful breach of this obligation to the detriment of the other party to the employment contract. Where the work of a staff member is interrupted partially or entirely within the framework of a strike (in order to protect their economic and social interests - see Article 27 (1) and (4) of the Charter), the nature of the illegality of such action shall be waived, since workers exercise their right to strike by unilaterally interrupting the work. However, even in these circumstances, the interruption of work constitutes an intervention in the rights and protected interests of other persons, not only the employer, but also non-striking workers and other entities that are economically linked or dependent on their activities or services. The strike, although legal, can cause considerable economic and social damage. The objectives pursued by the contested regulation of the procedure and the conditions under which the strike is declared in the dispute over the conclusion of a collective agreement, i.e. the prevention of economic and social damage, the protection of the rights and legitimate interests of other entities, their legal certainty arising from contracts concluded and the balancing of conflicting interests and the rights of the parties to collective bargaining, thus appear legitimate to the Constitutional Court. After all, the appellant did not dispute the legitimacy of these objectives.
47. If the strike is an extreme means of contesting the conclusion of a collective agreement, which may cause significant and irreversible damage, it is understandable if the law requires the legal nature of the strike to agree with it or otherwise support a significant, greater or lesser proportion of the employees to whom the collective agreement is to apply. Moreover, the right to strike, as is apparent from its inclusion in the context of the right to associate freely with others to protect their economic and social interests, is a collective right; it would be an abuse of the right to strike if its performance were held by an individual or by a narrow, negligible group of persons. In the present case (section 17 (2) of the Collective Negotiation Act under appeal), the legislator requires the consent of at least half of the employees to which the collective agreement is to apply, which is strictly not even a majority requirement, as the appellant contends. There is no doubt that other means can be envisaged to ensure, more or less, the representativeness and seriousness of such a major step in the collective agreement dispute - the lower or higher quorum provided for in the agreement (e.g. the absolute, three-fifths majority of employees, the agreement of at least one third or two fifths of employees, etc.), or other definition of the group of employees from which the quorum is collected (of all employees, of the staff present, etc.). However, the condition of consent of at least half of all employees to whom the collective agreement is to apply is close to the centre of the range of possibilities available and cannot therefore be regarded as manifestly unreasonable and therefore unconstitutional.
48. The collective agreement is a contract concluded between two parties, the employer on the one hand and the employees represented by the relevant trade union authority on the other. The trade union or its representatives negotiate with the employer to conclude a collective agreement and apply legal means to reach agreement, including the most extreme means - the threat of strike or its implementation. If the strike, as a last resort, is to be averted as quickly as possible or terminated in order to minimise the damage caused, it is desirable that the other party, in such a high situation, should know who is entitled to act as striking workers. In this situation, the condition of the submission of a list of representatives of the relevant trade union body who are entitled to represent the participants in the strike provided for in Article 17 (4) (c) of the Collective Negotiation Act does not appear to be a manifestly unreasonable means of achieving legitimate regulatory objectives as identified above. It can certainly be imagined that such a condition will not be established at all, that the employer will have to rely on employees representing the same representatives of the same trade union body with whom he has previously negotiated a collective agreement and that they are empowered to do all the work, including the interruption and termination of the strike. However, by providing for this condition, the legislator did not exceed the scope for discretion laid down in the constitutional order.
49. Although the right to strike is collective in nature, this does not mean that workers who disagree with it and do not want to strike for various reasons can be forced to strike. These employees have the right to be assigned the work for which they receive the agreed remuneration or other related claims (Sections 22 and 24 of the Collective Negotiation Act) in accordance with the employment contract and, if the employer cannot do so with regard to the current strike, they are entitled to compensation for the employer's wage. On the contrary, strikers do not have these rights; the termination of work as a result of the strike is considered to be an excused absence of employment, for which neither remuneration nor compensation of wages nor related claims (Sections 22-24 of the Collective Negotiation Act) is due.
50. On the other hand, the employer also has the right to protect his interests: the right to take measures to minimise his damage caused by the strike, or the obligation to take measures to prevent or at least minimise damage to workers or other persons. In order for the employer to be able to take the necessary organisational, technical and safety measures in a timely and effective manner (e.g. in the case of continuous operations or in the public transport of persons), he must know in advance which of his staff in particular positions and workplaces will unilaterally suspend his employment obligation due to the strike and who will not. In the same way, in order to be able to live up to his obligations under employment law towards non-striving workers and their claims, the employer must be able to find out who is working and who is on strike.
51. In addition, the Constitutional Court did not find that the mere requirement to submit a list of strike workers was capable of intervening so intensively in other fundamental rights, namely the right to protection against unauthorised interference in private life, or the right to protection against unauthorised collection or other misuse of data on its person within the meaning of Article 10 (2) and (3) of the Charter, which would result in a more stringent requirement for the proportionality of such intervention in relation to the objective pursued, constitutionally legitimate (the appellant did not, moreover, claim such a thing). There is a closer relationship between the employer and the employees given by the employment contract which they freely concluded with each other; already because of the existence of this close relationship, the employer is entitled to obtain an indication of which employee, for example for reasons of general interest, incapacity for work, maternity and parental leave or other important personal obstacle to work, including, of course, the reason for the exercise of the right to strike, cannot fulfil his obligation to perform work personally under the contract of employment in accordance with the prescribed working time [Paragraph 35 (1) (a) of the Labour Code]; On the contrary, the employee is obliged to inform the employer of the obstacle to work on his side and prove it.
52. Therefore, the condition of the submission of a name list of all strikers prior to the start of the strike under the contested provision of Paragraph 17 (5) of the Collective Negotiation Act cannot, for the reasons set out above, be regarded as a manifestly unreasonable and thus an unconstitutional means of protecting the rights of employers and employees who do not participate in the strike. This does not, of course, mean that this solution is the most sensible and only possible. However, the legislature did not go beyond its discretion when the mutual rights and obligations of employees and employers in the collective agreement strike were balanced precisely by the requirement to present a name list. Whether he has succeeded sufficiently in the new regulation under Act No. 264 / 2006 Coll., the Constitutional Court cannot assess at this stage of the procedure.
53. Furthermore, the Constitutional Court did not find the legislature arbitrary, since the contested provisions include, in their scope, unspecified bodies and apply to all trade unions and employers, without any distinction being made between them in terms of the exercise of the right to strike contrary to the principle of equality and the prohibition of discrimination.
54. Finally, the Constitutional Court also dealt with whether the contested provisions restrict the right to strike in such a way that its very nature and purpose would be affected (Article 4 (4) of the Charter). He concluded that no. The contested provisions are a possible and balanced compromise between the right to strike, on the one hand, and the rights and protected interests of employers, non-striving workers and other entities on the other. The appellant did not provide any evidence that, as a result of the application of the contested provisions, the strike would become practically unfeasible in the collective agreement dispute. On the contrary, it is generally known that in 17 years of validity of the contested provisions, a number of strikes took place in the dispute concerning the conclusion of a collective agreement in the Czech Republic. The appellant's claim that the contested provisions prevent workers from exercising their right to strike properly and that, in practice, these conditions lead to intimidation, discrimination and even the dismissal of workers, who therefore prefer to give up their right to strike in fear of possible consequences, remained at the level of unfounded claims and hypotheses. The anti-constitutional nature of the law does not create a hypothetical possibility of abuse. There is effective judicial protection against any negative phenomena which may arise in connection with the fulfilment of the conditions required by the contested provisions. Moreover, an important element of protection, immanently included in association freedom, is the purpose of association itself to protect its economic and social interests in a trade union which has effective legal and factual means to protect the rights and interests of its employees.
55. The Constitutional Court is aware that some employees will become less willing to participate in the strike when they imagine their name appearing on the list of strikers to be handed over to the employer. However, this cannot be an argument against the requirement of the name list. It cannot be imagined that the exercise of any right could be anonymous. The strike is always a confrontation, with the necessary level of personal commitment and responsibility for such a serious decision; Although the strike is a collective manifestation, it envisages a free and individual decision by each of its participants, otherwise it could not even take place. It is undoubtedly difficult to decide, but this is always the case when applying any right.
56. The Constitutional Court notes after the procedure that there are no grounds for annulment of the provisions of Paragraph 17 (1) of the part of the sentence which reads "if at least half of the employees to be covered by this Treaty agree with it. ', Paragraph 17 (2) of the sentence which reads" if at least half of the employees to be covered by the collective agreement of a higher degree agree with it', Article 17 (4) (c) and Article 17 (5) of the Act on Collective Negotiations, as these provisions in the abstract of Article 1 and Article 10 of the Constitution do not conflict with Articles 4 (4) and Article 27 (4) of the Charter, Article 8 of the International Pact on Economic, Social and Cultural Rights, Convention No 87 on Freedom of Association and Protection of Trade and the Convention No 98 on the Implementation of the Law of the Law of Organises and of the Association of Trade. It therefore rejected the application under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Vojen Güttler, Eliška Wagner and Michaela Židlická to decide.
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Regulation Information
| Citation | The Constitutional Court found No. 16 / 2007 Coll., on the application for annulment of certain provisions of § 17 of Act No. 2 / 1991 Coll., on collective bargaining, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 01.02.2007 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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