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Freedom Of Association Notes

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This is an extract of our Freedom Of Association document, which we sell as part of our Labour Law Notes collection written by the top tier of Oxford students.

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Labour Law Reading Session 6 (Freedom of association) Collins, Ewing and McColgan, chapters 7 and 8.2:

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Unions enable workers to participate in deciding the rules that will affect them while at work, whether through collective bargaining or lobbying governments over legislative rights. They also enforce working rights and ensure that workers aren't subjected to arbitrary or unfair treatment at work. This promotes the dignity of the worker.

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Trade unions need to be open and democratic if they are genuinely to facilitate participation by individual workers in decisions that affect them. Also unions, since they perform the role of promoting the dignity of the worker, should themselves do so, such as by not unfairly excluding anyone from the benefits of membership. However the need to ensure that unions behave in this way has to be balanced with the concern that state interference with unions should be kept to a minimum so as to avoid over-burdening unions which would thus prevent them from functioning effectively.

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The courts enforce union rule books as contracts between the unions and their members. There is also much legislation from between 1980-1993 that regulates unions e.g. election of officers etc.

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Typical functions of a trade union tend to include: o Service function: Unions provide services to members e.g. legal services. o Workplace representation: rep accompanies member in grievance/disciplinary hearing etc o Regulatory & political representation: collective bargaining and lobbying

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If a union does something that it's not authorised to do by the rule book a member will be able to restrain it. There are also statutory restraints e.g. under s.73 TULRCA a union has to ballot members every 10 years if it wishes to make political contributions.

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The courts may sometimes be called upon to resolve a dispute between the different organs of the trade unions e.g. between the conference and the exec committee. There are detailed statutory procedures for the governance of trade unions.

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Trade Union members have a right to access financial info (ss.28-30 TULRCA); right to ballot before industrial action is taken (ss.62) and a right not to strike without being subjected to expulsion or disciplinary action. (NB balloting is also required to avoid liability in tort for damage to an employer).

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A trade union member has a right not to be disciplined because of his failing to participate in/opposing industrial action; failing to contravene a requirement of his contract of employment; asserting that a union official ha contravened the rules of the union; encouraging others not to contravene a requirement of the contract of employment or to assert that a union official has broken the rules of the union; resigning from or proposing to or refusing to become a member of another union; working/proposing to work with non-union members; proposing to work/working for an employer who employs non-union members; requiring the union to act in accordance with legislation. Per s.65 TULRCA. S.64 TULRCA details what is meant by 'disciplined'. S.174 details when a union can expel a member.

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The Certification officer is responsible for certifying a union's independence, hears allegations of breach of statute by unions, is given a return of a union's finances at the end of each year. Before the 80s public policy generally favoured leaving unions to be autonomous and avoid judicial/parliamentary interference with union governance. In 1980s the positions changed to one that regulated many aspects of union governance (possibly to take up more union resources with admin leaving less resources to be put to use against employers). It also reduces the ability of the union to command the solidarity of its members. This is odd given the decreasing power of trade unions generally anyway. It reflects a changing view of unions: they are no longer thought of as bringers of social change by being sources of power, but RATHER as sources of advice and support to individual operators in the labour market. It's unlawful to refuse to employ someone on the grounds of being a union member under TULRCA and ECHR enshrines freedom of association. Victimisation or discrimination on grounds of membership are also prohibited. There is also not a 'closed shop' i.e. you don't have to be a union member to be employed.

A) Freedom of Association as Against Employers

1. Rights to Belong and to Take Part in the Activities of Trade Unions

TULRCA 1992: s.137: (1) It's unlawful to refuse P employment on the grounds that (a) he is/isn't a trade union member, or (b) he is unwilling to accept a requirement that he become/cease to become/refuse to become a member. (2) If this happens P can complain to tribunal s.138: Similar provisions applied to employment agencies. s.139: Time limit of three months from the conduct complained of s.140: Tribunal can award such compensation as it considers just and equitable, and can include compensation for injured feelings. s.141: Where there is a complaint against an Employer and employment agency jointly, proceedings can be brought against them jointly and they can be jointly (but not severally) liable. s.142: Deals with remedies against TPs e.g. union officials trying to enforce a closed shop. s.144: A term or condition of a contract for the supply of goods or services is void in so far as it purports to require that the whole, or some part, of the work done for the purposes of the contract is done only by persons who are, or are not, members of trade unions or of a particular trade union. s.145: Prohibits refusal to deal with a supplier on the grounds of union membership or likelihood of work being done (even partly) by unionised workers. s.145A: A worker has right not to be induced not to take part in union activities etc

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