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.
The following is a more accessble plain text extract of the PDF sample above, taken from our Labour Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
LABOUR: FREEDOM OF ASSOCIATIONA. INTRODUCTIONNote the history of trade unions in the UK and the principle of collective laissez faire
? 1. What is a trade union?"Trade union" is defined by:Section 1 Trade Union and Labour Relations (Consolidation) Act 1992: In this Act a "trade union" means an organisation (whether temporary or permanent) - (a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations;The following are the essential elements:Organisation: is there a sufficient structure?Workers: defined in s.296 TULRCA.Regulation of relations:
? Midland Cold Storage Ltd v Turner  ICR 230: Issue relating to shop stewards committee, whose function was only to decide whether to take or abandon industrial action. Question whether the committee regulated relations. Held: This committee was not a trade union, they never sought recognition and they left negotiations to established union machinery. They were not 'regulating relations'.
? Akinosun (on behalf of the General and Health Workers Union) v the Certification Officer  IRLR 937: Organisations which attend disciplinary meetings for a fee are not trade unions. The organisation wanted to be recognised as a trade union so that their members would have a right to be represented by them. EAT Held: There was no evidence of any collective activity, they were simply representing individuals. The union tried to argue that in the future it would be regulating relations in collective activities. Further held that the Court was bound to judge the organisation as it stood and not to consider what it might do in the future.There are key differences between unions and their status will determine the rights that can be accessed by individuals. A union may be listed by the Certification Officer. This brings certain tax advantages and is a pre-requisite for obtaining a certificate of independence. This acts as an important gateway to rights for their members. However a certificate is declaratory of independence, not normative.An "independent trade union" is defined as:Section 5 TULRCA 1992: In this Act an "independent trade union" means a trade union which---
? (a) is not under the domination or control of an employer or group of employers or of one or more employers' associations, and
? (b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control; and references to "independence", in relation to a trade union, shall be construed accordingly.
? Note that the mere possibility of interference is sufficient.Section 1(b) TULRCA 1992: Ensures that bodies like the TUC are also within the ambit of the definitionKey factors to consider are:(a) The union's history; i.e. did it previously exist within the employer(b) The scope of its membership base;(c) Its organisation and structure;(d) The strength and source of its finances; i.e. could it survive if its facilities were suddenly withdrawn
? Certification Officer's Guide: "A distinction can properly be drawn between a broadly-based union which could continue to function even if an employer withdrew facilities from one or more of its branches and a single company union which might well find it difficult or even impossible to carry on at all if such action were taken by the company which employs its entire membership."(e) The negotiating record.
? Note the impact of non-independent 'sweetheart' unions in this area:
? Blue Circle Staff Association v Certification Officer  IRLR 20: A staff association had been formed in 1971 to give a collective voice to the salaried staff in the company. The hourly paid staff were generally members of a bigger trade union. The company wanted (1) to give their salaried staff a voice (2) to avoid involving another TU, and so set up the association, which was dominated by the employer. Its board contained employer representatives, the chair was nominated by the boss, the employer provided all the facilities, members with < 3 years' service could not be representatives, the body could not negotiate, they could only make recommendations or be consulted on certain issues. What was important was that all these functions were the gift of the employer. From 1974 the body was given permission to negotiate. Shortly after they applied for a certificate of independent which was refused by the Certification Officer. Particular weight had been given to the degree of dependence to which the organisation had been subject in the first five years. This history imposed a duty to look scrupulously at all the facts to see that it had changed its character. The body appealed. EAT Held: Upheld the Commissioner decision. Some steps had been taken towards independence, but there was a long way to go. The organisation was still in the pocket of the employer and was not independent. Court said it was: "...unlikely that the employer's dominant role would have been modified at all had it not been the view of the employer that it was in its interest to concert with the Association a constitution and negotiating machinery consistent with the end of the existing company control... When the matrix of the new constitution is regarded, it is found to be an organisation whereby the association of the salaried staff members was penetrated at every point by the interference and control of management. There must be a heavy onus on such a body to show that it has shaken off the paternal control which brought it into existence and fostered its growth, and which finally joined in drafting the very rules by which the control appears to be relaxed."
? Note, in the US, the creation of a sweetheart union is considered to be an unfair labour practiceA union's legal status is a little unusual. They are not a body corporate but have quasi corporate status. Thus:(a) they are capable of making contracts;(b) they are capable of suing and being sued in its own name whether in proceedings relating to property or founded on contract or tort or any other cause of action; and(c) proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.
? 2. Why do we have trade unions?InequalityKahn-Freud: Analysed the labour market as involving an inequality of bargaining power. This inequality was counter-balanced by the presence of strong unions.Human RightsThe existence of trade unions is partly understood in a wider human rights context focusing on the need to protect workers' interests and to achieve social justice and harmony.
? Article 23(4) Universal Declaration of Human Rights: Everyone has the right to form and to join trade unions for the protection of his interests.
? Article 11(1) European Convention on Human Rights: 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.
These rights have had to be interpreted by the courts:
? Sindicatul Pastorul cel Bun v Romania  IRLR 49: ECtHR  "trade union freedom is an essential element of social dialogue between workers and employers, and hence an important tool in achieving social justice and harmony".
? Sigurjonnson v Iceland (1993) 16 EHRR 462: The freedom to associate also includes the right to dissociate/
Other PerspectivesThere are other more functional perspectives on the role of trade unions. In particular, their role in collectively bargaining to improve terms and conditions and to enforce legal rights. The mere presence of Unions carries weight because they can credibly threaten the enforcement of legal rights against the employer.
? See, for example the BMA acting as a stalwart against overbearing employer influences over Junior doctorsIn addition, there are certain statutory labour standards where unions are used to implement and occasionally vary those standards, see:
? Working Time Directive and Working Time Regulations 1998 Regulations 6, 10 and 11.
? Note that a collective agreement can modify or exclude the provisions in the regulations. Modern RoleIncreasingly however a trade union's role is in providing assistance at disciplinary and grievance hearings, so called "supply side trade unionism". This can have a positive or a negative impact.
? Ewing: The focus is on the union's representative function and workplace function rather than the political and policy orientated function which it might be said to have occupied previously.However a major challenge for trade unions now is the serious decline in coverage and density leaving them too weak fundamentally to alter the environment in which they operate, but unable to grow stronger without the regulatory intervention that a powerful union movement could demand.
? G. Gall, Union recognition in Britain: the End of Legally Induced Voluntarism? (2012) 41 ILJ 407 at 436:A number of explanations for this decline in union presence/coverage have centred on:
? (a) Reduction in manufacturing (traditionally unionised) and growth in the service industry (not unionised)
? (b) Increase in flexible and part-time working, when unions historically represented full time workers
? (c) Anti-Union reforms of the Thatcher Conservative Government and the dismantling of the closed shop.Where does this leave unions now?
? Arguably still have an important role in relations but their power is diminishing with numbers. They may become too weak to fundamentally alter the working environment or to demand changes (which might otherwise have helped them to grow stronger). They thus find themselves in a catch-22 situation.
? O'Sullivan, 'Is Individual Employment Law Displacing the Role of Trade Unions?' (2015) 44 ILJ 222:
? Heery has argued in the British context that the growth of employment regulation is the single most important trend in industrial relations. In the context of union decline, labour law has assumed a more prominent role in determining the conditions of employment. As employees increasingly make use of their statutory rights and the legal enforcement procedures provided to enforce those rights, unions may be left with little practical function. "Conversely, there are opportunities for unions to use labour law to their advantage by improving employee conditions, changing employer behaviour, consolidating a sense of shared grievance amongst workers and encouraging greater participation of members."
? "Teague observes that the emergence of a rights-based dimension to the conflict resolution system has opened up a process which involves people interacting with employment relations issues as individual legal subjects and not as members of a collective institution such as a trade union." Workers are increasingly reliant on the law to solve their problems. Legislation now covers many of the areas where collective bargaining would have shaped employer-employee relations: "legislation diverts grievances into a legal forum rather than a collective bargaining one." The growth of labour law can have a significant negative impact on trade unions by weakening solidarity amongst members as workplace grievances are individualised and union resources shift to supply side trade unionism as opposed to collective issues.
? In contrast to these displacement arguments, it could be contended that the law and collective bargaining are an effective combination in workplace regulation. The "recombination thesis", as Heery notes, states that substantive employment rights can complement collective activities, creating a hybrid form of regulation. Unions can inform and advise members of their rights, improve the management of individual dispute sin the workplace, and help enforce employment law by ensuring employers meet their obligations through collective agreements and policies. Unions can threaten to use the law in negotiations with employers; or, use legislation minima as an "objective standard" to justify demands or as a starting point with an expectation of better provisions.
? Unions not only can use the law to enhance individual employee rights but also, it can be argued, can use the law as a possible way to advance their organising and mobilising activities. "Unions can use the law in a way which confirms and consolidates a "sense of shared grievance or aspiration amongst groups of workers and provid[es] a belief that this can be pursued successfully. Unions can frame a legal issue to harness employees' sense of injustice and provide the formal structures and resources to support mobilisation." This has a form of "inspirational effect" (Colling). In short, unions can potentially mobilise workers to campaign for a change/introduction of a law, can mobilise collective support for member grievances to ensure their legal rights are vindicated and can use legal cases strategically to improve conditions for wider groups of workers.
? From the empirical research, O'Sullivan found that, overall, union officials believe that collective bargaining is a vastly superior mechanism for pursuing employee rights allowing employees a greater role in defining rights and justice, rather than relying on the minimum levels defined by law. Collective bargaining has the advantages of producing outcomes quicker than action through the legal route, avoids the uncertainty and loss of control involved in using a third party and provides an active role for trade unions mobilising the collective strength of the membership. Interviewees highlighted the numerous deficiencies of the law including its minimalist design, complexity and low penalties.
? Lester, 'Beyond Collective Bargaining: Modern Unions as Agents of Social Solidarity' In The Idea of Labour Law, edited by Guy Davidov and Brian Langille
? Points out that, [w]ith union density in decline, and growing alienation of the mass citizenry from the idea and value of organised labour, unions are seeking paths to revitalisation." The author argues that one way they may be able to do this... is to galvanise public sentiment around an issue of universal concern to contemporary workers: the need for a strong social safety net. His article is primarily focused towards the US, but there are a number of relevant ideas.
? Unions possess the technology of mobilisation, but have often focused their resources on grassroots organising and local bargaining strategies. "If unions are to speak to the concerns and values of the contemporary workforce, a dialogue of social and distributive justice may resonate more broadly than a district focus on organising and bargaining tactics." The author describes Richard Hyman's conceptualisation of a "triple tension" at the heart of union identity an purpose. All unions are market intermediaries, concerned with regulating the wage-labour relationship (the market function); they are inescapably agents of class as organisations whose collective identity divides them from employers (the class function); and they also by necessity operate within a social framework that they may aspire to change but that constrains their current choices (the society function). Beatrice and Sidney Webb have argued that trade unions should in significant part serve as a vehicle for worker's participating in the political sphere to secure legal enactment of general work regulation. Such representation may aid social solidarity as it creates a social-bond built on commonality. If unions can tap into this shared feeling of anxiety about the "gaps" in the safety net when a job ends, health crisis strikes, child is born, etc, they
?might increase the resonance of their message and relevance. Unions that can effectively frame advocacy around risks that are common across identity and income groups might not only spearhead progressive social change, but also reduce the perception that unions are "special interest group[s]" that lobby and operate to increase wages for their membership to the exclusion of other workers' and citizens' concerns. The author also notes the strategic deployment of employment rights. Richard Michael Fischl has argued that such deployment can generate additional pressures on employers through negative publicity and threatened liability, while simultaneously demonstrating the utility of union representation to the employees in question.
B. COLLECTIVE BARGAINING
? 1. Introduction"Collective bargaining" is defined as:Section 178 TULRCA: "Collective bargaining" means negotiations relating to or connected with one or more of those matters ... (2) The matters referred to above are---
? (a) terms and conditions of employment, or the physical conditions in which any workers are required to work
? (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
? (c) allocation of work or the duties of employment between workers or groups of workers;
? (d) matters of discipline;
? (e) a worker's membership or non-membership of a trade union;
? (f) facilities for officials of trade unions; and
? (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including ... recognition ....Despite collective bargaining being between unions and employers, legislation is still relevant. There are three aspects where auxiliary legislation plays a role, having a greater or a lesser effective on collective bargaining:(a) The need to establish machinery through which collective bargaining may occur;(b) The duties on the parties in the collective bargaining process to ensure that it is conducted transparently;(c) The legal status and effect of concluded collective bargains.
? 2. Is an employer required to collectively bargain with a union?In the UK the machinery established for collective bargaining is the recognition process. The current version, which was brought in by New Labour (with 'partnership working' in mind) works as follows:(a) A union must be independent to be recognised.
? Section 178(3) TULRCA: Recognition is defined as "the recognition of the union by an employer, or two or more associated employers, to any extent for the purpose of collective bargaining" (note the circular nature).(b) The emphasis is on representation for the purpose of negotiation:
? USDAW v Sketchley Ltd  IRLR 291: It is not enough for representation to be for the purpose of representing individual members.(c) The existence of sectoral level collective bargaining does not result in recognition at plant level:
? NUGSAT v Albury Bros  IRLR 504:There are three types of recognition, which operate differently and have different consequences:Voluntary recognition
? Is recognition outside the statutory procedure and de-recognition is similarly informal and unconstrained.
? While an individual cannot enforce a recognition agreement, terms that are apt for incorporation will remain incorporated into individual contracts until they are formally varied.
? Further, derecognition does not remove a statutory duty that is already binding (has already arisen):
? Ackrill Newspapers Ltd v NUJ (CAC 14.02.12):Semi-voluntary recognition
? Takes place when there has been a statutory request for recognition but the employer agrees to it before the CAC (Central Arbitration Committee) declare it. An employer may not unilaterally derecognise the union for three years but thereafter there are no restrictions.Involuntary recognition
? Occurs when the CAC declares that a union is recognised in relation to a particular bargaining unit in the employer. In these circumstances, an employer is barred from derecognising a union for three years and thereafter must apply to the CAC to be allowed to derecognise them.
? There are specific conditions which have to be met before the union is recognised.
? Note, the statutory recognition procedure is not covered in detail, you just need to know the flowchart
? Note the problems associated with the procedure e.g. the required percentages of employees.
? 3. The Statutory Recognition Procedure (Schedule 1 TULRCA)
? 4. Method of Collective BargainingThe CAC will only get involved in ordering the method of collective bargaining where the union has been recognised involuntarily and if the parties cannot agree to the method.The CAC specified method will only apply to pay, hours and holidays. This has been interpreted restrictively:BALPA v Jet2.com  IRLR 543: High Court took very restrictive view of what 'pay, hours and holidays' means. Said it was limited to the 'core contractual terms of pay, hours and holidays that were apt for incorporation into an employee's contract'. It did not include an airline's rostering policy for its pilots.
? Note that this decision is being appealed.The CAC must take into account the bargaining procedure in the:Schedule to the Trade Union Recognition (Collective Bargaining Method) Order 2000.
? Step 1: What do we want!
? The union must put its proposals forward, in writing, to the employer. The union must set out the reasons for its claim and it supply supporting documentation. Unless the union and employer agree otherwise, the union must make its claim within 3 months of the method of collective bargaining being imposed by the CAC, and by the same date in subsequent years. If it fails to do so, the bargaining round will be regarded as having been concluded for that year.
? Step 2: Uh oh, troubles brewing
? The JNB must hold a meeting to discuss the union's claim within ten working days of the union submitting it. The union must be prepared to explain the claim and answer questions arising from it to the best of its ability.
? Step 3: A mountain does not bow to the wind
? The employer must respond, in writing, to the union's claim. It must do so within ten working days of the JNB's meeting at Step
2. It may respond by agreeing to the claim. If it rejects the claim, it may request a meeting of the JNB to discuss the reasons for the rejection, or it may simply give its reasons in writing to the union.
The written reasons given by the employer must lay out all relevant information in the employer's possession including information on the costs of the claim and the business consequences, including consequences for staffing. If the employer makes counter-proposals, the reasons for the counter-proposals and information supporting them must again be provided.
? However, the employer is not under any obligation which goes beyond that imposed by the general law relating to the duty of employers to disclose information to recognised unions for the purposes of collective bargaining. In particular, the employer is not obliged to disclose any information which is commercially confidential. Both the employer and the union should have regard to the terms of the ACAS Code of Practice on the Disclosure of Information to Trade Unions for Collective Bargaining Purposes, and seek to abide by it.
? Step 4: Another useless meeting
? A further meeting of JNB must take place to discuss employer's response within 10 working days of the union receiving the response. The employer must be prepared to explain the claim and answer questions arising from it to the best of its ability.
? Step 5: We're not getting anywhere here lads
? If no agreement has yet been reached, a further meeting of the JNB must be held within a further ten working days, at which the union is entitled to be represented by a full-time official who will be allowed to take part in the meeting as if he or she were a regular JNB member.
? Step 6: Let's call in the big dogs
? If still no agreement has been reached, then within five further working days the parties should consider inviting ACAS to help them reach agreement. If they make a joint application to ACAS, both of them are required to give ACAS their assistance in enabling it to carry out conciliation efficiently and effectively.
? Additional meetings may be held if the parties wish. In particular, if the employer requests it, a meeting should be held before the union submits its claim or before employer respond in order for the employer to explain the business context within which it will make its response. The Code of Practice suggests that meetings should normally take half a working day, and should take place during the normal working time of most of the union members of the JNB.
? If the employer wishes to vary the pay, hours or holidays of the workers in the bargaining unit, or of a part of it, it should not do so before it has discussed the proposals with the union. This can normally be done at Steps 3 and 4 of the model bargaining procedure.
? If the employer fails to do this, and wishes to implement changes before the next bargaining round begins, it must send written details of the proposals to the union, together with information concerning the costs and staffing implications of them, in accordance with the requirements for the disclosure of information laid down under Step 3 (above). A meeting of the JNB must be held within 5 working days to consider the employer's proposals.
? If no agreement is reached, the parties must follow the procedure laid down in Steps 5 and 6 (above).
? Any collective agreements which result from the model bargaining procedure should be put into writing and signed by both the chair of the employer side and the chair of the union side.
? The important point to note is that there is no substantive obligation to reach an agreement or to negotiate. The parties are only required to meet and talk.
4. Provision of information for collective bargainingKahn-Freud: Remarked that "recognition does not deserve its name if one of the negotiating partners is kept in the dark about matters within the exclusive knowledge of the other which is relevant to an agreement."TULRCA also provides for the provision of certain information to unions for the purposes of collective bargaining.Section 181 TULRCA:
? (1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.
? In this section and sections 182 to 185 "representative", in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.
? (2) The information to be disclosed is all information relating to the employer's undertaking which is in his possession, or that of an associated employer, and is information---
? (a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and
? (b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.As regards part (a), the Union is on the back foot because without this information they cannot determine whether they are impeded in carrying out collective bargaining; any submissions that they would be so impeded may be seen as speculation. Further, it may be difficult for a union to argue that it is impossible to negotiate without certain information if they have managed without such information in the past.As regards part (b), regard will therefore be had to the ACAS Code of Practice, although the Code is not very helpful. It confines itself to giving examples of the information that may be relevant in certain situations, that is: pay and benefits; conditions of service; manpower; performance (e.g. productivity and efficiency data, savings from increased productivity and output, return on capital invested, sales and state of the order book); and financial matters (e.g. profits; assets; loans to parent or subsidiary companies; and liabilities).However the scope of information that must be provided is further restricted by:Section 182(1) TULRCA: An employer is not required to disclose information which:
? would breach national security;
? he could not disclose without contravening a prohibition contained in any enactment;
? has been communicated in confidence;
? relates specifically to an individual unless they have consented;
? would cause substantial injury to his undertaking for reasons other than its effect on collective bargaining;
? e.g. cost information on individual products, detailed analysis on proposed investment, marketing or pricing policies, and price quotas or the make-up of tender prices
? has been obtained by him for the purpose of bringing, prosecuting or defending any claim.Furthermore:Section 182(2) TULRCA: An employer is not required to (a) produce or permit inspection of any document... or (b) to compile or assemble any information where that would involve an amount of work "out of reasonable proportion" to the value of the information in the conduct of collective bargaining.
? This exception assumes both that the value of the information can be objectively assessed and moreover, that it can be assessed before disclosure. The Code goes further than statute in recommending that employers should present information in a form and style which the recipients can reasonably be expected to understand, and clearly it may be in the interests of the employers to sustain any additional costs involved in doing this.
? Note, Unions have to 'trust' employers since they are not allowed to inspect original documents.?
Decisions of the CAC have subsequently stated that the term "all stages" of the collective bargaining process does not mean that there is a requirement for negotiations to have stared before disclosure is sought:R v CAC ex p BTP Tioxide Ltd  IRLR 60:Information about workers outside of the union's sphere of recognition may nevertheless be relevant to bargaining about those within it.The remedy for breach of the disclosure provision takes effect through a variation in the contractual terms, that variation being requested by the Union (Section 184-185 TULRCA)
5. What international obligations exist in relation to collective bargaining?There is no requirement on governments to enforce compulsory collective bargaining:ILO Convention No.87 (Freedom of Association and Right to Organise): Provides right to join organisations.ILO Convention No.98 (Right to Organise and Collective Bargaining): Article 4 of requires Governments to take measures appropriate to national conditions to encourage and promote the full development and utilisation of machinery for voluntary negotiation.European Social Charter, Article 6: Includes obligations to promote joint consultation between workers and employers and where necessary and appropriate collective bargaining machinery and the right to strike.The issue of whether collective bargaining is part of Article 11 ECHR has been more contentious. Initially the wide divergence between Member States was the basis for rejecting the contention that collective bargaining was an inherent part of "the protection of his interests" in Article 11:National Union of Belgian Police v Belgium (1979-80) 1 EHRR 578: Article 11 did not include collective bargaining and only included negotiation and representation. There was too wide of a divergence of views amongst Member States. Held: "...the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must bother permit and make possible... It follows that the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. [However the article] leaves each State a free choice of the means to be used towards this end. While consultation is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests." Further: "In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and, in particular, in assessing the appropriateness of State intervention to restrict union action aimed at extending a system of collective bargaining, and the wide degree of divergence between domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in the choice of the means to be employed.Wilson and NUJ v UK; Palmer, Wyeth and RMT v UK  IRLR: Several combined claims, Wilson (Journalists), Palmer and Wyeth (Manual Port Workers). Employers offered employees a pay rise (and in some cases other benefits) if they agreed to sign personal contracts in place of their collectively agreed terms and conditions. In some cases, they were also asked to forgo their entitlement to union representation in some or all of their dealings with their employer. The applicants bought separate proceedings alleging that there had been a breach of s.23(1)(a) of the Employment Protection (Consolidation) Act 1978, which prevented any action which prevented or deterred an employee from being or becoming a member of a trade union, or penalising him for being so. HL Held: The provision did not extend to union services, only membership per se. Further, it only related to acts and not omissions (in the form of a failure to increase pay). The applicants claimed that this interfered with their Article 11 rights since the right of union representation was inherent in the right of union membership. ECtHR Held: The UK has in breach of its Article 11 obligations but since, if it had complied, the employees would not have been offered financial incentives, the applicants had suffered no loss and were only entitled to damages only for their injuries to feelings.
? (1) The absence under UK law of an obligation on employers to enter into collective bargaining did not in itself give rise to a violation of Article 11. The freedom of a trade union to make its voice heard does not extend to imposing on an employer an obligation to recognise a union. Consideration was given to the wide degree of divergence between domestic systems. They also said that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members' interest, it is not indispensable for the effective enjoyment of trade union freedom. There were other measures available to the applicant unions by which they could further their members' interests. [For example...] The grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union's freedom to protect its members' interests.
? (2) However, the UK had failed in its positive obligation to secure the enjoyment of rights under Article 11, which safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the contracting states must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests and the individual members have a right, in order to protect their interests, that the trade union should be heard. . It is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employers or to take action in support of their interests on their behalf. If workers are prevented from doing so, their freedom to belong to a trade union for the protection of their interests becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.
?  ... the Court has consistently held that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members' interests, it is not indispensable for the effective enjoyment of trade union freedom... The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured...
?  ... there were other measures available to the applicant unions by which they could further their members' interests... The grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union's freedom to protect its members' occupational interests ... Against this background, the Court does not consider that the absence under United Kingdom law of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of Article 11 of the Convention.
?  ... domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.
?  ... it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by Social Charter's Committee of Independent Experts and the ILO's Committee on Freedom of Association (...). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant unions and the individual applicants...The landscape changed dramatically following the case of Demir:Demir and Baykara v Turkey  IRLR 766: Court held that the right to bargain collectively was an essential element of Article 11, reconsidering previous jurisprudence because of the "perceptible evolution in such matters in both international and domestic legal systems". Facts: First application was by a Union member; second by Union president. Union was formed in 1990 for civil servants in various municipalities of Turkey. In 1993 a collective agreement was made with a Turkish council. The agreement was not implemented in good time and the Union brought civil proceedings. District Court found for the union. Court of Causation found that a union formed by civil servants has no authority to enter into collective agreements. The case bounced between the domestic courts before being submitted to?
Buy the full version of these notes or essay plans and more in our Labour Law Notes.