Air Malta’s court application for an injunction raises serious questions for trade unionism which go beyond this particular threat to indus-trial democracy.
The question is: should it be possible for an employer to seek and obtain from a court a blanket ban on the recourse to any form of industrial action whatsoever?
The facts of the case as reported in the newspapers are that there is a dispute between Air Malta’s management and the trade union representing pilots, that the pilots have resorted to industrial action consisting in not wearing their full uniform on duty, that they were thinking of escalating further their industrial action and that Air Malta has applied for a total ban of industrial action of any sort.
Not wearing the full uniform is not conducive to Air Malta running bankrupt. Hence, a blanket ban on resorting to any form of industrial action, not necessarily strike action, is unacceptable from the perspective of freedom of association.
The European Court of Human Rights, in Enerji Yapi-Yol Sen v. Turkey, decided on April 21, 2009, that freedom of association precludes the imposition of a blanket ban on the right to strike, strike action being perhaps the ultimate sanction a trade union can resort to in an industrial dispute with an employer.
For a ban to be allowed it has to be proportionate and not too wide a restriction
In an article available on the internet, it is stated that the Turkish case concerned a State prohibition on public sector trade unions from taking industrial action. Members of the trade union Enerji Yapi-Yol Sen who ignored the prohibition were disciplined and the union brought the case to the ECHR, alleging that the ban on strikes interfered with their right to form and join trade unions as guaranteed under Article 11.
While the court acknowledged that the right to strike was not absolute and could be subject to certain conditions and restrictions, it held that a ban applied to all public servants was too wide a restriction.
The ECHR ruled that the disciplinary action was “capable of discouraging trade union members and others from exercising their legitimate right to take part in such one-day strikes or other actions aimed at defending their members’ interests” and amounted to a threat to rights guaranteed under Article 11.
The strike ban was not in response to a “pressing social need”, and the Turkish government had thus failed to justify the need for the restriction in a democratic society.
What is of interest for the Air Malta vs. Alpa litigation is that the ECHR considered disproportional a blanket ban on a right to strike, although it did admit the possibility of such a ban in certain circumstances. But for a ban to be allowed, it has to be proportionate and not too wide a restriction.
A ban which declares that a trade union cannot resort to any form of industrial action is unjustified on the basis of a “pressing social need”. If a trade union asks its staff not to reply to e-mails and phone calls, not to wear a uniform or to refuse to carry out duties that do not fall within the employees’ job descriptions, there is nothing extraordinary in such directives.
However, a court order disallowing the taking of all sorts of industrial action should never obtain the approval of any court, as it would constitute a serious threat to industrial democracy.
Kevin Aquilina is the dean of the Faculty of Laws at the University of Malta.