This is an extract of our Collective Organisation Trade Unions And Employers' Associations document, which we sell as part of our Labour Law Notes collection written by the top tier of Oxford students.
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COLLECTIVE ORGANISATION: TRADE UNIONS &
Abbreviations: EE Employee ER Employer COE Contract of Employment EAT Employment Appeal Tribunal ET Employment Tribunal TU Trade Union D&M Deakin & Morris' textbook FT Fixed term (contract) SOSR Some Other Substantial Reason
THEORETICAL ISSUES ON COLLECTIVISM Workers'/TUs' perspective
Weakness of the individual:
2 types of organisations:
ER usually has more socio-economic power than the individual worker, though exceptionally, there are some workers with special skills/experience. For EE, entering CoE entails subordination to ER's demands. Closed shop = keeping themselves exclusive, and regulating supply of labour to specific occupations Open shop = recruit all workers int he occupation; strength in numbers.
Role of TU generally to improve members' T&Cs of employment through collective bargaining
Primary role - recognised in statutory definition of a TU; TULRCA 1992, s1(a)) Must have principal purpose of regulating relations between workers and employers. Historical reason: started off with reliance on collective bargaining, before achieving political power. But today, intertwined with politics - Labour Party formed from combination of TUCaffiliates. Trade Union Act 1913 also allows for TUs to pursue political objects, though expenditure must come from separate union fund. Even if statutory labour standards are lowered, TU might be able to negotiate for greater flexibility/extension of reference period. Also gives members access to legal representation, and welfare/financial benefits. And getting assistance in disciplinary and grievance functions.
Talking about employers' associations here. 1
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Each ER is already a "collective power", having the capital. But associations also sought to balance out the collective organisation of workers in each industry. Not all ERs are big!
Associations also provide information and advice to ERs, but the significance of this differs across the various industrial sectors - generally, on the decline.
International Standards of Collective Organisation
International human rights conventions which see freedom of association as a fundamental right:
3. Universal Declaration of Human Rights - everyone has right to form and join TUs for protection of his interests - art 23(4)
Given effect by the International Covenant on Economic Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights 1996 (ICCPR). International Labour Organisation has always seen it as a fundamental right. Spelt out in the Freedom of Association and the Right to Organise Convention 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention 1949 (No. 98)
Art 2 of no. 87: workers and ERs have right to establish and join organisations of their own choice, subject only to the rules of the organisation.
Art 1(1) of no. 98: workers to enjoy adequate protection against acts of anti-union discrimination in their employment.
Art 4 of no. 98: take appropriate measures to encourage and promote full development and use of machinery for voluntary collective negotiation, so that T&Cs of employment can be regulated by CAs.
But NO compulsory participation in TU. Should be voluntary. ECHR, European Social Charter and the Charter of Fundamental Rights of the EU.
Art 11 ECHR: right to freedom of association, though not unlimited.
But note in the EU sphere, the Social Provisions of the TFEU expressly exclude the right of association and right to strike. But TEU still binds EU to respect the Community law rights guaranteed by ECHR as general principles of EC law rights. Hence the ECJ affirmed freedom of association as a fundamental right in Bosman, 1995. Hence, pretty much wide consensus on the importance of the right. But less unanimity on the scope of the right in practice - what does it entail beyond the basic right to join and form TUs?
ILO Conventions, supplemented by jurisprudence of the Governing Body's Committee on Freedom of Association, and the reports of the Committee of Experts on the Application of Conventions and Recommendations.
Convention No. 87 provides for all workers to establish and join organisations, also guarantees free functioning of the organisations, and for the organisations to affiliate with other international organisations of workers.
Convention No. 98 provides that workers should enjoy adequate protection against acts of antiunion discrimination, and TUs should enjoy similar protection against interference by other organisations/ERs.
MSs to take measures to encourage/promote collective bargaining - but doesn't require govts to enforce CB by compulsory means.
No express reference to right to strike - but has been derived by the ILO supervisory bodies from the above Conventions anyway, on basis that it is one of the essential and legitimate means by which workers/TUs can promote and defend their interests. ICESCR requires states to ensure right of everyone to join TU of their choice, right of TU to join other federations/organisations, and explicitly guarantees right to strike (though subject to exercise in conformity with laws of the state). ICCPR and ECHR state that TU freedom is manifestation of broader freedom to associate. Exclusions from scope?
Note that most treaties specifically exclude armed forces/police, though ECHR and ICESCR go further and allow 'lawful restrictions' on the exercise of the right to freedom of association by members of the state administration. 2
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GCHQ case - ban found to breach ILO principles, but complaint to European Commission on HR found to be inadmissible. But in Demir v Baykara, 2009, ECtHR has said that any restrictions imposed on these 3 groups must be not so as to impair the very essence of the right.
ECtHR jurisprudence of the right of freedom of association:
Until recently, ECtHR adopted narrow interpretation of art 11's right to freedom of association/right to form and join TUs.
In National Union of Belgian Police v Belgium 1975; held that art 11 did NOT give members right that union should be able to engage in CB, or even that TU should be consulted by ER
members only had right that their TU be heard, and MS had discretion as to means to facilitate this. Consultation was just one of these means.
In Gustafson v Sweden, 1996: said that in light of the sensitive nature of the socio-political issues at stake, contracting states enjoy a wide margin of discretion as to choice of means employed!
Young, James and Webster v UK, 1982: read into art 11 a right not to associate in limited circumstances - right to diassociate.
But seminal decision in Wilson and NUJ v UK; Palmer, Wyeth and RMT v UK and Doolan v UK, 2002 (Wilson and Palmer judgement) - recognised importance of collective bargaining, to limited extent
ER had refused pay rise to EEs who didn't agree to switch from collectively agreed T&Cs to personal contracts.
ECtHR continued holding that collective bargaining is not indispensable/strictly necessary for the effective enjoyment of TU freedom.
BUT did progress from past jurisprudence and hold that essence of right to join TU that EEs should be free to instruct/permit TU to make representations or take action on their behalf. **UK law, by permitting ER to treat EEs who didn't want to renounce freedom less detrimentally, hence allowed ER to undermine/frustrate TU's ability to promote and protect members' interests.
Hence, state failed in positive obligation to secure enjoyment of art 11 rights.
Then came the case of Demir and Baykara v Turkey, 2008 - on the right to collective bargaining:
ECtHR held that earlier jurisprudence had to be "reconsidered". Held that right to CB had become one of the essential elements of the art 11 right to form and join TUs, hence any interference must comply with the requirements in art 11(2). Contracting States only have a limited margin of appreciation. On the facts, the annulment of the CA by courts was a breach of art 11. The ECtHR, in interpreting the ECHR, also considered many other international conventions (ILO/supervisory bodies' jurisprudence; EU Social Charter) and MS practice 3 significant implications for UK....
(i) (ii) (iii)
Can expose British law to challenge along similar lines. Further, ECtHR referred to ILO/other jurisprudence - domestic courts may now be more receptive to arguments premised on these. Especially since UK Govt traditionally gave ECtHR jurisprudence much greater weight than the conclusions of the ILO bodies/ECSR. ECtHR that art 11 comprises right to collective bargaining ECJ likely to conclude too that the right can be derived from the right to freedom of association, already recognised as a fundamental right in EU law.
EU law and EU Competition law
Social Policy provisions of TFEU expressly exclude right of association and right to strike - art 153(5). But ECJ has recognised these as fundamental rights.
Albany International BV v Stichting, 1999: AG Jacobs considered that right to take collective action + right to form/join TU were fundamental rights in EU law. 3
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Viking Line, 2007: ECJ referred to different international instruments (including EU Charter), and held that right to take collective action including right to strike must be recognised as fundamental right (albeit on the facts, as a defence to ERs' claims that their free movement rights were infringed). Right to collective bargaining? Less clear than in ECtHR jurisprudence whether it's fundamental right.
GAG Jacobs didn't think it was fundamental right in Albany - insufficient recognition; acceptance of art 6 ESC was optional; ILO Convention 98 only imposed mere obligation to encourage/promote CB - not mandatory. Viewed it from indiv perspective and said there was sufficient protection by general principle of freedom of contract.
But since then...
EU Charter of Fundamental Rights provides that workers/EEs have 'right to negotiate and conclude CAs' - not legally binding, but is source of general principles of EU law for ECJ.
ECtHR has reconsidered previous case law in Demir and Baykara, holding that right to collective bargaining is inherent in art 11. Relationship with EU Competition law - art 101 TFEU prohibits agreements between undertakings which can affect trade, and have object/effect of distorting common market/economic competition. Issue arose in Albany.
AG Jacobs thought that CA should be immune from review under competitive rules, not automatically, but only if it complied with 3 conditions: 1) made within formal framework of collective bargaining; 2) made in good faith; 3) dealt with core subjects of collective bargaining which did not directly affect third markets/parties. (restrictive approach!)
But ECJ adopted broader view of the exemption...thought that even though restrictions on competition are inherent, nevertheless social policy objectives of CAs would be undermined if subject to art 101 when parties trying to jointly adopt measures to improve conditions of work and employment. Hence, agreements concluded in context of collective negotiations seeking to improve conditions of work were held to fell outside art 101.
Statutory definition: organisation which consists wholly/mainly of workers, and whose principal purposes include regulation of relations between workers and ERs (s1(a) TULRCA) (only TUs which meet the statuary definition will be accorded rights)
"worker" includes one seeking work. But excludes those who work for 'professional clients' (i.e. Law Society) Broader than employees!
Midland Cold Storage Ltd v Turner, 1972: must have sought recognition from ERs.
Principle purpose must include such regulation (not just seeking consultation). But can also include other lawful political objects.
Midland Cold Storage v Turner, 1972: shop stewards committee didn't do negotiation (left it to established union machinery elsewhere) - court held it was not a TU (particularly cos it never sought recognition). Includes umbrella organisations of TUs/EE representatives. Can also include a branch of a TU which satisfies the statutory criteria. Note that definition of ERs' associations mirrors that of TUs - s122 TULRCA.
Legal basis of a TU: at common law, it is an association of indivs bound together by contract of membership which regulates their relationship, though subject to overlay of statutory provisions!
Can't be incorporated, but statute has accorded them many features of incorporated bodies: can make contracts, can be sued, judgments can be awarded and enforced against property held in trust for them (quasi corporate status
Statutory protection against common law doctrine of restraint of trade
Potentially liable in tort since Employment Act 1982, but damages subject to statutory limits.
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Registered vs unregistered TU
Registration is not a prerequisite for legal existence of a TU. But any union meeting certain requirements can apply to be listed by Certification Officer, free of charge.
Advantages: (non-conclusive) evidence that organisation is a TU; tax relief; **prerequisite for application for certificate of independence!
Independent vs non-independent TU
Independence is the gateway to certain statutory rights
Members have right to claim time off to participate in union activities.
Scope of membership base Union's history (whether it was started with ER support) Organisation and structure Strength and sources of finances Negotiation record
Blue Circle Staff Association v Certification Officer, 1977: CO decided that organisation, which had been set up by ER and was highly dependent on for first few years, had not done enough in the road towards independence.
EAT agreed! Organisation's rules still had remnants of dependence - ER appointed chairman; EEs with less than 3 years' service excluded from office; ER had right to withdraw recognition of representative; org didn't have much independent finances.
Emphasised that that as there was much interference and control by management, there was "heavy onus" on body to show it had relinquished the grasp of the ER which created it. But the above factors are guidelines only! Relevance/weight depends on circumstances.
Recognised vs non-recognised TU
Legal consequences of recognition:
i. ii. iii. iv.Have certain rights to information and consultation
Certificate is not prerequisite, but constitutes conclusive proof of independence! Even without, does not mean that TU is not independent. Can appeal to EAT on qn of law against Cert Officer's decision to refuse/withdraw certificate of independence. Criteria: in s5 TULRCA - not under domination/control of ER etc, and not liable to interference looking at whether it is vulnerable to potential interference No specific factors listed in statute, but factors which Cert Officer considers relevant are:
Protection of members from being subject to detriment by ER on grounds of union activities Can invoke statutory recognition procedure
TU can claim disclosure of info for purposes of collective bargaining Union reps and members can claim time off for specified activities Range of statutory consultation rights. Precludes recognition of another TU under the statutory recognition procedure.
Definition: contained in TULRCA s178(3) - recognition of TU by ER for purposes of collective bargaining. S178(2) lists the matters to which negotiations have to relate to comprise collective bargaining. Recognition can be within statutory procedure (semi-voluntary or involuntary), or outside stat procedure (voluntary). Statutory procedure is in sch A1 TULRCA.
1. Voluntary recognition
RIGHTS: right to be consulted over certain redundancies/transfers of undertaking, and right to disclosure of info. Indiv members also have certain rights like taking time off for union activities, and paid time off for purposes related to collective bargaining (for shop stewards/other EE reps). 5
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CollectivePROCEDURE: TU must be independent, and definition is in s178(3) - recognition for the purpose of collective bargaining by ERs. (collective bargaining is defined in s178(2), as dealing with the 7 listed matters)
2. Statutory recognition
Focus throughout statutory process is to encourage TU and ER to come to agreement, possibly with help by ACAS. Determination by CAC is the last resort. Statutory recognition applies only to collective bargaining on pays, hours and holidays (much less extensive than the definition of collective bargaining in s178(2) TULRCA, which applies to voluntary recognition) PROCESS:
3. Independent TU makes request to ER as a bargaining unit - if recognised after negotiation here, will be semi-voluntary recognition. If not, TU applies to CAC for recognition. CAC will first make determination of admissibility - will NOT be admissible if:
A. B. C. D.
TU doesn't have minimum of 10% of workers in BU who are members of the union, and majority in BU likely to be in favour of recognition More than one TU applies and TUs can't show they will cooperate Application was substantially the same as one made in the last 3 years.
If not inadmissible, CAC has to help parties to agree on the appropriate bargaining unit. Are majority of workers in BU union members? If not, CAC will conduct secret ballot. If yes, no need ballot unless CAC thinks it is good for industrial relations, or if there are doubts about membership, or if there's evidence that significant numbers of TU members don't actually want their union to be involved in collective bargaining. If no ballot required, TU will be declared as recognised! If ballot required, depends on results - recognition must be supported by majority of workers voting, and at least 40% of the workers in the BU.
Freedom of association concerns in the recognition procedure-
Another TU is recognised (not necessarily independent)
Para 35(1) Sch A1 TULRCA: application for recognition will be inadmissible if there is already CA in force providing for recognition covering the BU, unless existing CA does not cover pay/hours/holidays. So ER can choose to recognise a TU which it favours, but which doesn't really have sprout of workers, hence barring statutory recognition. R on the application of the NUJ v CAC and MGN Ltd, 2005: NUJ had significant support of workers - went to meet ER to negotiate. But shortly after, ER recognised another union which had lower membership. NUJ applied for stat recognition but CAC held it was inadmissible.
NUJ then brought judicial review proceedings, arguing that allowing ER to bypass majority of workers was breach of art 11. Also argued that agreement between ER and other TU was not enforced cos it hadn't been used to determine T&Cs.
JR application dismissed! Held that "enforced" included an agreement that was capable of being operated. Also, right of CB was not then included in art 11. But today, Demir has changed things. Right to collective bargaining now recognised as included in art 11. Arguable that it is breach of art 11 for ER to be able to block collective bargaining process.
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