Freedom of Association (L7)

Question 1

What are collective labour rights?

Answer 1

From voluntarism to statutory protections.
Right to form and join trade unions, right to bargain collectively, right to take collective action (to strike).

Question 2

Why are collective labour rights important?

Answer 2

Industrial democracy: collective bargaining as a vehicle of democratic participation.
Workers can have a voice in the workplace.

Social justice: enforcing rights at work, improving workers’ material conditions.
Workers in unionised workplaces enjoy higher protections and higher wages.

Economic growth: better for the economy?
Because material conditions are improved, workers can purchase more etc. peace in industrial relations brings economic prosperity.

Human rights.
Difference collective labour rights are all dimensions of freedom of association, which are all human rights.

Question 3

How, and to what extent, is freedom of association protected?

Answer 3

A fundamental right in many national constitutions.
A human right in international and regional legal instruments:
ILO Constitution – Declaration of Fundamental Principles and Rights at Work.
ILO Conventions 87 (freedom of association & right to organise) & 98 (right to organise & collective bargaining – protection against anti-union discrimination).
EU Charter of Fundamental Rights 2000, Article 12.
European Social Charter, Article 5.
European Convention on Human Rights, Article 11.

Question 4

What does freedom of association include?

Answer 4

A hallmark of a democratic society but beyond the right to form and join trade unions, the content is disputed.
Right to organise?
Trade unions’ right to engage in collective bargaining?
Right to strike?
To what extent can states interfere and limit workers’ FoA?
Can states interfere in the internal affairs of trade unions?

Some of these questions have been addressed in the jurisprudence of ECtHR.

Question 5

What does Article 11 of the ECHR say?

Answer 5

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society.

Question 6

How does the HRA 1998 legislate to protect rights (including FoA)?

Answer 6

Direct Vertical Effect, Indirect Horizontal Effect.
s2 - Interpretation of Convention Rights.
s3 - Interpretation of [UK] Legislation.
s4 - Declaration of Incompatibility.
s6 - Acts of Public Authorities.
s7 - Actions by individuals against Public Authorities.

Question 7

What is the Bill of Rights 2022 and what effect would it have?

Answer 7

Proposed.
Provision which would require the UK courts to take into account Strasbourg jurisprudence.

Question 8

What does freedom of association entail (what are its three dimensions)?

Answer 8

Freedom to be in association with others (i.e. the right to organise).
Freedom in the association of others.
Freedom to act in association with others (i.e. collective action).

Question 9

What was the effect of ECtHR case law up until 2002 on the matter of FoA?

Answer 9

Narrow interpretation of Art 11 freedom of association.

Art 11 did not guarantee a right to collective bargaining or a right to strike.

Refusal to use ESC or ILO Conventions to interpret freedom of association more widely.

Question 10

What are the facts, and question, of Wilson and Palmer 2002?

Answer 10

Daily Mail refused to renew its recognition agreement with the trade union which represented journalists. Offered workers who agreed to sign an individual agreement financial benefits in order to not collective bargain.

Unlawful discrimination?
Breach of right NOT to have action short of dismissal taken against him for the purpose of preventing or deterring him from being a trade union member?

Question 11

What did each UK court and tribunal conclude in Wilson and Palmer 2002?

Answer 11

Employment tribunal: yes.

Employment appeal tribunal: no.

Court of Appeal: yes.

House of Lords: No discrimination.
S23 applied only to ‘action’ short of dismissal and not to omissions or failures to act.
Protection for trade union membership did not cover right to have terms and conditions negotiated collectively.
What does “trade union membership” mean?

Question 12

What did the ECtHR conclude in Wilson and Palmer 2002?

Answer 12

UK law in breach of Article 11 (positive obligations).
Essence of right to join trade union = freedom to instruct or permit union to make representations to their employer or to take action in support of their interests on their behalf.

‘The role of the State [is] to ensure that trade union members are not prevented or restrained from using their union to represent them’.

Significant break from the past but still no specific right to recognition/consultation.

Question 13

What are the facts, and the issue, in Demir & Baykara v Turkey [2008]?

Answer 13

Collective agreement between trade union and town council.
Council breached collective agreement –> legal action brought by Mrs Demir and Mr Baykara.

Question 14

What did the Turkish Court of Cassation conclude in Demir & Baykara?

Answer 14

Trade unions have no legal capacity to enter into collective agreements –> collective agreement invalid from point of signing.

Question 15

What did the ECtHR conclude in the 2006 decision in Demir & Baykara?

Answer 15

Breach of Art 11.

Question 16

What did the Grand Chamber of the ECtHR conclude in the final 2008 decision in Demir & Baykara?

Answer 16

‘The right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and join trade unions for the protection of [one’s] interests’ set forth in Article 11’.
Interferences with this right must comply with Article 11(2). Only restrictions prescribed by law and necessary in a democratic society in the interests of national security.
‘Perceptible evolution’ of the law; ‘developments in labour law, both international and national’.

Reference to: ILO Conventions 98 and 151. European Social Charter Article 6(2). European Charter of Fundamental Rights.
Irrespective of whether these instruments had been accepted by Turkey.

Relevance for the UK? Exposing aspects of UK labour law to challenge. Case law of other bodies becomes relevant through ECtHR case law.

Question 17

What was the issue in RMT v UK [2014]?

Answer 17

RMT sought to argue that UK law constituted breach of its right to freedom of association in two respects:
Pre-strike notice requirements.
Prohibition of secondary action (sympathy strikes).

Question 18

What did the ECtHR conclude in RMT v UK [2014]?

Answer 18

The right to strike is ‘clearly protected’ under Article 11.
Complaint regarding pre-strike notice provisions inadmissible.
Secondary action is protected under Article 11 as ‘accessory’ freedom. However, complete ban justified under Art11(2).

Similar reasoning to another case – Sindicatul Pastorul cel Bun v Romania.

Trend in the ECtHR of allowing wide margin of appreciation to states in the field of social policy.

Question 19

What was the issue in Unite the Union v UK [2016]?

Answer 19

Did the abolition of the Agricultural Wages Board infringe the trade union’s and workers’ rights to collective bargaining?
Board was employees + employers mix to set wages for agriculture sector.

Question 20

What did the ECtHR conclude in Unite the Union v UK [2016]?

Answer 20

No because, in principle, workers remained free to engage in collective bargaining (even if, in practice, they were unable to).