PROCEDURE

The case originated in an application (no. 75252/01) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Swedish nationals, Mr Tommy Evaldsson, Mr Johan Svahn, Mr Tonnie Hodell, Mr Jonny Lindqvist and Mr Conny Brandt (“the applicants”), and the Swedish Construction Industries (Sveriges Byggindustrier) (hereinafter “the Industries”) on 4 September 2001.

The applicants alleged that the levying of monitoring fees on the individual applicants’ wages involved violations of Articles 9, 10, 11 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

By a decision of 28 March 2006, the Court declared the application admissible with respect to the five individual applicants and inadmissible insofar it concerned the Industries.

A hearing took place in public in the Human Rights Building, Strasbourg, on 20 June 2006 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr C.H. Ehrenkrona, Ministry for Foreign Affairs, Agent, Ms K. Renman, Ministry of Industry, Employment and Communications, Mr M. Falk, Ministry for Foreign Affairs, Ms P. Herzfeld Olsson, Ministry of Industry, Employment and Communications, Advisers; (b) for the applicants Mr P. Bratt, Representative, Counsel, Mr J. Södergren, Representative, Co-counsel, Mr C. Crafoord, Lawyer, Mr G. Herrlin, Head of the Lawyers’ Section of the Industries, Ms T. Holm, Lawyer, Advisers, Mr T. Evaldsson, Applicant. The Court heard addresses by Mr Ehrenkrona, Mr Bratt and Mr Södergren.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1948, 1974, 1965, 1964 and 1963 respectively. They were employed by the construction company LK Mässinteriör AB (hereinafter “the company”) between 3 March and 30 July 1999 on a time-wage basis.

The company, being a member of the Industries, was bound by a collective labour agreement, the Construction Agreement (Byggnads-avtalet), concluded between the Swedish Building Workers’ Union (Svenska Byggnadsarbetareförbundet, hereinafter “the Union”) and the Industries. The relevant local branch of the Union in the instant case was the Stockholm branch, Byggettan.

At the material time, eight employees in the company carried out work covered by the labour agreement. Three of these workers were members of the Union whereas the five applicants were not members of the Union or of any other trade union.

Under section 3, subsection f 5 of the collective agreement, as it stood at the relevant time, the local branch had the right to inspect on a continuous basis wage conditions by measuring piecework (ackordsarbete) and result work (resultatarbete), as well as monitoring time-based work (tidlönearbete). If inspections were carried out in accordance with the collective agreement, the local branch had the right to reimbursement of the costs involved on the basis of a fee of 1.5% of the worker’s wages. The employer was obliged to deduct this amount from the worker’s wages and to supply the local branch with the information necessary for the inspection work.

On 12 January 1978 the Industries and the Union concluded an accord pursuant to which a worker organised in a trade union other than the Union could request his or her employer not to deduct the inspection fee, with the result that the Union would no longer have the right to request either information or the payment of a fee in respect of that worker. In a subsequent dispute between the Industries and the Union over the interpretation of the accord, an out-of-court settlement was reached on 29 February 2000 to the effect that it applied to all workers belonging to a trade union other than the Union.

On 22 May 1991 the company and Byggettan concluded an agreement concerning the inspection work. The agreement gave details of the work and specified, inter alia, that it was the company’s responsibility to provide Byggettan with the wage information and to deduct fees from the wages of the workers and pay them to Byggettan six times a year. The information was to include the place of work, the names and social security numbers of the workers and the working hours and net wages.

The applicants requested to be exempt from the deductions, which in their case concerned fees for monitoring the wages for hourly work. The company complied with their requests, stopped paying the fees to Byggettan and did not provide it with the above-mentioned wage information concerning the applicants. Byggettan insisted on payment and initiated formal local negotiations. These were held on 23 March and 19 April 1999. However, no solution was reached, either in the local negotiations or in the subsequent central negotiations between the Industries and the Union.

The Industries eventually brought the case before the Labour Court (Arbetsdomstolen), seeking a declaratory judgment to the effect that the company was not obliged to levy the monitoring fees in question. It argued that the inspection of wages, in so far as it did not concern the technical measuring of piecework, aimed at securing the observance of the provisions of the collective labour agreement and was therefore part of the general activities of the Union. Moreover, the 1998 and 1999 annual reports of Byggettan allegedly showed that the inspection fees greatly exceeded the costs of the work and that the surplus was used for general union activities. Consequently, the corresponding deductions from the applicants’ wages were tantamount to forced union membership or, at least, involved an unacceptable compulsion to join the Union or another trade union. The conduct thus violated their negative freedom of association under Article 11 of the Convention as well as under domestic law. Furthermore, since the applicants did not share the political values of the Union, the levy on their wages also violated their rights under Article 10 of the Convention.

Two of the applicants, Mr Evaldsson and Mr Hodell, were heard by the Labour Court. They submitted that they opposed the deductions because they did not think that the monitoring work was of any use to them and considered the deductions an unnecessary expense. Allegedly, they also submitted that they felt that the deductions were unjust.

The Union disagreed with the Industries, arguing that the monitoring fees could not be seen as tantamount to forced membership of the Union, such membership being secured through the payment of a separate membership fee. The system of monitoring fees did not involve a compulsion to join a trade union. Moreover, the applicants had not expressed any ideological reasons for their unwillingness to contribute to the monitoring work. The Union claimed that, contrary to the Industries’ allegation, the 1998 and 1999 annual reports of Byggettan showed that the proceeds of that work had not contributed to general union activities but that, in fact, the monitoring had been run at a loss. Furthermore, the inspection work was strictly separated, economically and otherwise, from the other activities of Byggettan. Finally, arguing that the positive aspect of the freedom of association under Article 11 of the Convention was stronger than its negative counterpart, the Union claimed that a ban on the levying of monitoring fees on unorganised workers’ wages would violate the positive rights of its members, as this could induce members to leave the Union in order to avoid paying the fees.

By a judgment of 7 March 2001, the Labour Court rejected the Industries’ claims. It referred to several of its previous judgments concerning various types of measurement and monitoring fees. In a case from 1977 (AD 1977 nr 222), the court had found that the monitoring of time-based wages was wholly different from the measuring of piecework, as no special action had to be taken to establish the amount and type of work performed. Instead, the inspection of time-based wages rather aimed at securing the observance of the collective labour agreement and also served as a basis for the statistics used by the Union in wage negotiations with the employers. Consequently, the monitoring benefited the general union activities and the fees contributed financially to those activities. The court had therefore concluded that the levying of fees on the wages of members of the Syndicalist Union for monitoring work carried out by another trade union involved a violation of those worker’s positive freedom of association, as they would have to resign from their own organisation in order to avoid contributing to both organisations. The Labour Court stated that there was no reason to come to a different conclusion in the instant case as to the nature of the monitoring work. Thus, from the point of view of association law, there was no reason to distinguish between monitoring work and general union activities. Having reached that conclusion, the court found no reason to determine whether the monitoring fees generated a surplus which contributed to other union activities. However, the situation in the instant case was different from the 1977 case in that the applicants were not subjected to pressure to leave their organisation. Instead, the question was to what extent they were protected by a right to negative freedom of association. The Labour Court noted that the negative freedom of association under domestic law was exclusively based on the Convention. It referred to the European Court’s case-law and drew the conclusion that only the core of the negative freedom of association was protected under Article 11 of the Convention, meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of Article 11. The Labour Court initially concluded that the monitoring fee deductions did not entail membership of the Union and that no pressure had been exerted to compel the applicants to join the Union against their will. It further found that the fact that the applicants, through payment of the monitoring fee, indirectly supported the activities of the Union did not in itself amount to forced membership, since being a member of the Union also entailed certain other duties, such as loyalty to its objectives and payment of a membership fee. The situation would have been different if the applicants would to some extent have been associated with the Union’s ideology as a result of the monitoring fee deductions. However, the fee in issue was deducted in accordance with their employer’s obligations under the collective labour agreement, and it was, accordingly, difficult to see a link with the Union’s ideology. In this connection, the court also referred to the evidence given before it by Mr Evaldsson and Mr Hodell. While it questioned whether the grounds for their position in the case could have a bearing on their negative freedom of association, the court nevertheless found that there was no indication that they opposed the deduction of the fees because they took exception to union activities in general or to the ideology of the Union. The Labour Court went on to state that, while the applicants, through the fee deductions, contributed to the general activities of the Union, they were not treated any differently from Union members as concerns the monitoring. In order to monitor the observance of the collective labour agreement, the work was carried out with respect to all employees affected by the agreement, whether belonging to a trade union or not. Noting that it could appear offensive to an unorganised worker to have to contribute to the work, the court stated that it was not without importance that the unorganised worker in fact obtained something in return for the fee paid. The Labour Court further noted that, theoretically, the applicants could be inclined to join a trade union other than the Union in order to avoid the wage deduction for the monitoring fee. It found, however, that it was not very realistic that an employee would regard the wage deduction as a particular incentive to do so. The Labour Court concluded that all the above considerations indicated that the deductions did not breach the applicants’ rights under the Convention. As to the main issue to be determined – whether the monitoring fee was intended as a measure to pressure them to join the Union – the court could not find that it had any such coercive effect. As the fee was not tantamount to forced membership of the Union and had not influenced or forced the applicants to join the Union, the company had been obliged to make a deduction from their wages in accordance with the collective labour agreement.