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Freedom Of Association Notes

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FREEDOM OF ASSOCIATION
FREEDOM OF ASSOCIATION

Trade Union - organisation consisting of a group of working people who come together in solidarity to attempt to protect and improve their working lives and terms and conditions of employment.
History of Collective Labour Law:
 Originally collective organisation were outlawed.
 CL- TUs subjected to crim sanctions
 TU Act 1871- recognised TUs as lawful keeping courts out of industrial disputes but ERs and courts responded by developing law of economic torts to impose civil liability on TUs for engaging in collective action.
 Industrial Relations Act 1971- TU registrations, TUs got corporate status
 Conservative Thatcher gov6 pieces of legislation increasing legal controls on TU activity.
 TULRCA reformed these.
 TU Act 2016- tightened up pre-strike balloting and notice requirements imposed on TUsmakes industrial action harder.
 Current position is that TULRCA has a moderately restrictive regime regulating TUs.
WHY DO WE HAVE TUS? With decline in membership- are they still relevant?
 Wider HR context: focus on need to protect workers' interests and achieve social justie+ harmony.
 Art 23(4) UDHR: Everyone has the right to form and join TUs for the protection of his interests.
 Art 11(1) ECHR: 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
 Shows that the EE is weak, has to combine with other workers to have power+ obtain protection, bigger the group gives more power against ER.
Ewing - Points to 5 functions which are most significant
(i)
Service function - providing services+ benefits to members e.g health+ unemployment benefits, also extends to legal advice.
- Many rely on TU to access legal representation to bring cases e,g UNISON brought fees claim.
(ii)
Representation function - interests of individuals are heard in the workplace e.g consultation and bargaining on behalf of workforcecounter-balance unequal bargaining power e.g 1 doctor trying to take on gov about your working conditions nothing will changeinvolve the BMA.
- ECtHR in Sindicatul Pastorul cel Bun v Romania [2014] stated that: "trade union freedom is an essential element of social dialogue between workers + employers, and hence an important tool in achieving social justice and harmony".
- Although freedom to associate also includes the right to dissociate: Sigurjonnson v Iceland (1993).
(iii)
Regulatory function - regulate relationship between employer/employee - rule making that extends beyond their members through collective bargaining e.g TUs play part in setting terms for the industry.
- Certain labour standards where TUs are used to implement and vary standards e.g Working Time
Directive and Working Time Regulations 1998 Regs 6,10 and 11.
(iv)
Government function - need for trade unions to engage with government in order to secure legislation that will enable them to perform their other functions.
(v)
Public administration function - being involved in the implementation of governmental policy and also organised political representation of working ppl to restrain power of state and harnessing the power of the state.

Decollectivisation = change in emphasis from regulatory/representative  service/public administration.
TU's role become increasingly supply side trade unionism (providing assistance at disciplinary and grievancy hearings e.g taking notes during a dismissal). FREEDOM OF ASSOCIATION

This has been accompanied by demise of legal abstentionism- emergence of stat employment protection laws to fill in gaps left by the decrease in no. of workers covered by collective agreements.

WHY HAS THERE BEEN A REDUCTION IN TU MEMBERSHIP?
 Structural changes (manufacturing-based economy to service based economy).
- Decollectivisation accelerated also by the decentralisation of collective bargaining fomr the national to the enterprise level.
 Status has replaced class as central element of an individual's sense of identity calls to protect the
'working class' have less resonance with working individuals than calls to protect status inequalities e.g sex,
race, sexual orientation discrimination.
 Unions too weak: Gall (2012) writes about the catch 22: major challenge for TUs is the serious decline in coverage and density has left 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
 Neoliberalism - political assault on the privileges of the TUsprivileged access to the state has been withdrawn coz suspicious of them as being monopolistic, anti-liberal and anti-democratic.
 Economic arguments against: distort markets, raise wage rates in order to serve lofty ideals of 'justice' so seen as anti-competitive cartels:
- Charlwood: says TUs don't deliver greater wage equality in unionised workplaces established after 1980 so one edge of the TU 'sword of justice' is gradually eroding.
- Hayek: TUs had become privileged institutions to which the general law didn't apply (they could effectively do what seemed necessary to achieve their main purpose (monopoly). He argues TUs are economically harmful and politically dangerous, use their power to make the market system ineffective and gives control of economic activity by influencing relative wages of diff groups of workers by upward pressure on wage levelinflation.
- Posner - Rejects argument that solidarity in form of TUs increases productivity (argument is that by complaining now you'd have fewer quitting later). Instead says that ERs are rational and profit driven so if granting EEs tenure increases their productivity, the rational employer will do so to reduce costs of production so encouraging workers to complain rather than wait for them to quit means a rational employer will encourage them to complain by cash reward if worker turnover is costly to him irrelevant of TU activity.
- Hirsch - union productivity effects proven by empirical evidence is 0.
-



However, some economists have made the opposite counter argument.
Freeman and Medoff - Improved communication flows between collective workers/employer, coupled with dialogue between labour/management = beneficial production enhancing effects. Cost to employer in engagement with union compensated for by positive impact of productivity.
Deakin and Wilkinson - Reject orthodox accounts which cast strong trade unions as drivers of higher unemployment, higher inflation and unstable product prices. Looked at empirical evidence over the last few years where strong union membership was combined with price stability and full employment
(1950s for example).

FREEDOM OF ASSOCIATION, STATUS, LISTING AND INDEPENDENCE OF TRADE UNIONS
Orthodox liberal philosophy- practice of workers coming together to associate is legit since it's motivated by the concern to facilitate the exercise of an individual's liberty and autonomy against authority of the state:
JS Mill - 'from the liberty of each individual follows the liberty of combination among individuals'
TUs in traditional 'single channel model' had a monopoly for purposes of engaging in collective bargaining with ERs and ERs' associations and collective industrial action.
Tus representation is linked to the individual's freedom of collective association so TU understood as an institution that co-ordinates the ability of individuals to join together to further their interests. FREEDOM OF ASSOCIATION

Mill's conception of liberty to collectively associate found in various international and supra-national conventions:
 Art 11 ECHR (freedom of assembly and association) /At 12 EUCFR/Convention No 87 ILO.

Although ECtHR in Sindicatul Pastorul cel Bun v Romania [2014] said that freedom of association may occasionally be trumped by other fundamental freedoms e.g here the freedom of a break-away dissident group of Romanian Orthodox priests to join a TU gave way to the freedom of religion of the Romanian Orthodox
Church coz to allow the TU to be registerd would pose grave risk to religious autonomy of the Romanian
Orthodox Church.
The ability of workers to associate and join together in TUs is reflected in definition of legal status of a TU:
s1(a) 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 or
(b) which consists wholly or mainly of
(i)
constituent or affiliated organisations which fulfil conditions in para (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions) or
(ii)
representatives of such constituent or affiliated organisations, and whose principal purposes include the regulation of relations between workers and employers or between workers and employers'
associations, or the regulation of relations between its constituent or affiliated organisations
Essential elements:

1. Organisation- is there sufficient structure? Has to be more than 1 person

2. Workers- defined in s296 TULRCA- goes beyond employee, about personally performing work.
- Stat definition of worker excludes individuals providing services to professional clients so the Law
Society isn't a TU (Carter v Law Society)

3. Principal purposes of the organization must include the the regulation of relations:
- Midland Cold Storage Ltd v Turner [1972] - Committee not a trade union - exclusively concerned with strike action, they never sought recognition and hadn't participated in negotiations about pay and conditions.
- Akinosun (on behalf of the General and Health Workers Union) v the Certification Officer [2013] - focus is on the collective nature of the organization- if a body's sole purpose is to represent individual EEs in grievance or disciplinary proceedings it won't qualify as a TU.
 GHWU not a trade union - no evidence of any collective action, group only provided services at disciplinary procedures etc in exchange for a fee. Assessment is a question of fact in any case.
S1(b) TULRCA 1992 ensures bodies like the TUC are within ambit of the definition of trade union.
- TUC (Trade Union Congress) is comprised of numerous affiliated trade unions- seeks to further interests of TUs at national +European level and undertakes national-level collective bargaining ie collective bargaining with employers' associations that cover all workers employed in a particular industry in UK.
LEGAL STATUS OF TUS:
Once s1 TULRCA is satisfied, issue is whether the TU has legal personality that is separate from its member workers.
- Taff Vale Railway Co Ltd v Amalagamated Society -HOL acknowledged that TUs could be sued in their own name, not just sue the collection of individual members.
S.10 TULRCA goes further and ascribes a quasi-corporate status to trade unions (not a corporate body but are treated like one in the sense that): FREEDOM OF ASSOCIATION
 They're capable of making contracts
 They're capable of suing and being sued in their own name whether in proceedings related to property, contract, tort or any other cause of action and
 Proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.
 S11 TULRCA- enables TU to engage in its affairs lawfully without fear of breaching the common law rules on restraint of trade
 Although s.22(2) TLRCA - limitation on tort law damages that can be claimed.
 Although: TU can't be registered as a company under Companies Act 2006
LISTING AND INDEPENDENCE OF TRADE UNIONS
 There are key differences b/w TUs and their status will determine the rights that can be accessed by individuals.
 A TU may be listed by the Certification Officer which brings certain tax advantages and is a pre-requisite for obtaining a certificate of independence to be issued by the CO in terms of s6 TULRCA.
 There is no legal obligation for an organisation purporting to be a TU to be registered.
 As such, although voluntary listing (s.2/3 TULRCA), ancillary benefit of independence is key.
 If an organisation is listed, s.2(4) directs that this is evidence that it is a trade union.
 Once listed, TU is entitled to apply for a Certificate of Independence. Entirely voluntary process but benefits of independence include:
(i)
Only an independent union can invoke the statutory recognition procedure prescribed in Schedule
A1 to TULRCA. Recognition entitles a trade union to engage in collective bargaining on behalf of a group or groups of workers.
(ii)
Independence essential for trade unions and their members to access the statutory protective rights.
o Added attraction to the outside world that TU is not connected to employer (Not a sweetheart union).
o This was important protection for workers when the practice of the 'closed shop' (where ER would insist that an individual join a recognised TU in order to be hired as a worker or would dismiss EE if they weren't a member of that TU) was lawful in the UK.
- Pros of closed shop: gives TUs the power they need as realistically forces ER's to make EE's join that TU.
- Bad coz individuals may not want to join a TU e.g Unison used to make members join labour party
(political)
s5 TULRCA: Statutory definition of independence
In this Act an "independent trade union" means a trade union which—
(a) isn't under the domination or control of an ER or group of ERs 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.

FACT
S


HELD

Blue Circle Staff Association v Certification Officer [1977]
Staff association formed in 1971 in order to give collective voice in company/prevent other union coming to company. Employer provided all facilities, less than 3 years service = no representation.
In 1974 union started looking more independent (permission to negotiated etc).
 CO refused application. Association held to still be effectively in the pocket of employer.
 Key factors the CO address in evaluating whether an organisation ought to be independent are:
o The union's history;
o The scope of its membership base;
o Its organisation and structure;
o The strength and source of its finances; FREEDOM OF ASSOCIATION
o The negotiating record.

If CO issues a certificate of independence, this is treated as conclusive evidence that the TU is independent.
S9 TULRCA: Where CO refuses an application for a certificate, the TU may appeal the CO's decision on a point of law to the EAT.
COLLECTIVE BARGAINING AND THE STATUTORY RECOGNITION OF TRADE UNIONS


Collective bargaining= the process by which TUs and EErs negotiate a collective agreement to regulate working conditions and resolve disputes as part of the representational function.
Difference b/w collective bargaining and consultation:
- Davies+ Freedland: The essence of the distinction between consultation and negotiation (or bargaining)
is that in the former case the employer is committed only to receiving representations from those he consults and making reasoned replies to them, whilst in the latter he is committed to dealing with the representatives with the aim of reaching agreement with them (though such agreement may not in fact be reached). In consultation the right to decide always remains formally with the employer; in negotiation the aim is a joint decision and the employer recovers the right to decide unilaterally only when negotiations have failed. Consequently, negotiation is a greater restriction upon managerial prerogative than consultation and hence has always been the objective of trade-union activity

Role of collective bargaining and recognition procedure

Historical view = 'collective laissez-faire' (CLF) -idea was that parties would jointly regulate their own relationship and state-imposed legal duties to bargain was not implemented. But there were
(i)
No direct sanctions on any failure to engage in collective bargaining
(ii)
No support for social system of CLF - ie no granting on injunction when collective agreement breached etc.

Webbs: collective bargaining better than individual bargaining as enabled workers to get more attractive
T+Cs by controlling the supply of labour and competition/
Flanders: rejects Webbs saying:
(i)
Wrong to think of collective bargaining as completely replacing individual bargaining - more correct to refer to collective bargaining as regulating, rather than replacing individual bargaining.
Process of negotiation is diplomatic use of power e.g strikesUse of power
(ii)
(iii)
Parties to collective bargaining negotiate procedural as well as substantive agreements - can help settle proceedings etc.

Kahn-Freund - Principal objective is 'countervailing power'. Through the countervailing forces,
management and labour create a body of rules and thus relieve the law of one of its tasks. Management wants collective bargaining as it doesn't want to have work interrupted. Organised labour on the other hand seeks to give effect to its legitimate expectation that wages etc should regulated and respect moral dignity of labourer.
- In adversarial collective bargaining, the bargaining acts as a counterbalance to management discretionreduces 'agency costs'.
- He says the CA isn't the legally binding contract itself but says what the rights and obligations are under the contract. Says the CA has a contractual and normative function.

Economic justifications of collective bargaining:
 Estlund: The argument that collective bargaining can have a positive effect of reducing an ER's aggregate production costs through promoting 'labour peace' through regulating labour-management conflict.
 Davies - Possible efficiency justifications. Employees work more effectively to deliver output in exchange for greater input into the managerial decision making process. FREEDOM OF ASSOCIATIONThis is coz participating in setting the rules (irrespective of the size of the financial benefit that collective bargaining confers on them) is an important extension of the democratic imperative from political sphere to the industrial sphere.

But, since Thatcher gov, CLF and collective bargaining viewed sceptically as an impediment to the efficient allocation of labour and cause of inflation.
With a decline in CLF, unions struggled to persuade employers to recognisedecollectivisation (drop in the
% and range of workers in the UK covered by collective agreements and diminution in the depths of topics included within the scope of a collective agreement).
Instead, this was replaced with individual bargaining and statutory employment protection.
An inherent feature of the system of CLF was the absence of any compulsory recognition of TUs (so if a TU
wanted to bargain collectively with an ER this was voluntary) but with the gradual removal of the indirect auxiliary props to encourage collective bargaining, it became harder to TUs to persuade employers to recognise them for bargaining purposes.
1980-90s: Voluntary nature of CLF collapsed as ERs refused to voluntarily recognise TUs.
- However, new Labour arrived in 1997 and Employment Regulations Act 1999 was passed and inserted in TULRCA in 2000 which provided another statutory recognition procedure.
- 10 years in force - complex union recognition procedure has not been a success. Drop in the number of recognition applications, acceptances and actual recognitions (Moore, McKay and Veale)
Section 178 TULRCA defines "collective bargaining" as: 'negotiations relating to or connected with one or more of those matters….' - then a list of matters is referenced.
S178 TULRCA defines collective bargaining as
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 ....
These are the 7 specified matters.

Despite collective bargaining being between unions and employers, legislation is still relevant and plays a role in:
(i)
The legal status and effect of concluded collective bargains.
(ii)
The need to establish machinery through which collective bargaining may occur;
(iii)
The duties on the parties in the collective bargaining process to ensure that it is conducted transparently;

(i)
Legal status of collective agreements
Pharmacists Defence Association Union v Boots Management Services Ltd [2013] - Agreement relating to just one of the matters listed in s.178(2) was sufficient to come within the definition of a collective agreement. This broad interpretation of s178 (2) extends the scope of protecions afforded to TUs. FREEDOM OF ASSOCIATION



S179 TULRCA: Clear presumption that collective agreements are not legally binding- if parties want to rebut this presumption then collective agreement must be in writing/ term explicitly stating legally binding.
Legally binding collective agreements run into contract law difficulties?
Lorber and Novitz - legally a collective agreement does not fulfil the conditions required to define a contract:

1. Unions represent workers and therefore act as 'agents' when signing the collective agreement. The

2. Union will not be benefitting; it is the workers - this is not permitted in contract law.

3. Also, when agreement concluded it applies to whole workforce not just members bargained with - this erga omnes effect is incompatible with contract law.

4. There is a lack of intention to create legal relations (parties prefer it to be a gentleman's agreement not enforced by the common law courts but to use collective action where ERs breach its terms).

So the only way for the agreement to be afforded legal status is for their terms to be incorporated expressly or impliedly into an EEs emp contract but courts put many hurdles to prevent this so in reality most CAs have no legal effect.
STATUTORY RECOGNITION OF TRADE UNIONS
 In the UK the machinery established for collective bargaining is the recognition process.
 S178(3) TULRCA: Recognition = "the recognition of the union by an employer, or two or more associated employers, to any extent for the purpose of collective bargaining".
 The emphasis is on representation for the purpose of negotiation: USDAW v Sketchley Ltd [1981]
 The existence of sectoral level collective bargaining does not result in recognition at plant level: NUGSAT v
Albury Bros [1978]
Voluntary recognition
 Recognition of the union by the employer outside the statutory procedure but de-recognition is similarly informal and unconstrained. However, terms that are apt for incorporation will remain incorporated into individual contracts until they are formally varied and derecognition does not remove a statutory duty that is already binding: Ackrill Newspapers Ltd v NUJ.
 This would be where TU requests recognition and ER accepts it.
In the absence of voluntary recognition, the only option left to the TU to invoke statutory recognition procedure:
Semi-voluntary recognition
 Takes place when there has been a statutory request for recognition but the employer agrees to it before the CAC 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.
Note Schedule 1A - complicated recognition procedure - not needed in detail.

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