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Legal ruling on collective bargaining in Ireland on its way September 27, 2018

Posted by Tomboktu in Council of Europe, Workers Rights.
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A legal decision on collective bargaining for freelance workers in Ireland has been reached in Strasbourg (although under an outdated rule on the publication of the rulings, it will not be made public for a few months).

As it happens, the government changed the law in the two years since the case was lodged, but the legal ruling should be decided on the situation when the case was lodged.

The background to the case is that the Competition Authority prohibited freelance workers and employers from negotiating collective agreements. In August 2016, Congress lodged a case alleging that this situation was a breach of the workers’ human rights under the European Social Charter, the social rights counterpart to the European Convention on Human Rights (PDF, 93 pages, here).

The government’s main plank in its defence submission (available here) was that the law had been changed, but the European Committee of Social Rights, the legal body that determines if the Charter has been breached or not, has regularly ruled that its decisions are based on the situation at the time a complaint is made and not on changes governments make to law, policy or practice after a case has been lodged.

Ibec intervened in the case via its European representative body, the International Organisation of Employers (available here). In a bizzare approach, Ibec also argued that Ireland is in breach of the European Social Charter, but because the law was reformed in 2017 to protect freelance workers without Ibec being consulted.

A question that students of European human rights law will be watching for is whether the legal ruling focuses narrowly on the specific facts in Ireland or if the European Committee of Social Rights uses the opportunity to expand the European jurisprudence on collective bargaining rights more generally. And if it has used the opportunity to develop its jurisprudence, it will be interesting to see if it does so in a way that challenges EU law on workers’ rights.

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