European court hands down key union ruling

The ruling of the European Court of Human Rights that UK laws are in breach of European law guaranteeing the right to form and join trade unions (see page 19) is immensely important. Backup explains the background to the case and highlights its consequences for union organisation.

On 10 November 1989 the Daily Mail newspaper wrote to all employees informing them that the collective agreement was due to lapse on 1 April 1990 and the company would no longer recognise the union.

Dave Wilson was a father of chapel - workplace representative for the NUJ journalists' union at the Daily Mail. He was told that he would be offered a new contract which made it clear that union activity during working hours was prohibited and that there would be no right to representation or negotiation through the union. Wilson refused to sign and his pay increases in the following years were always lower than those awarded to the journalists who had signed.

On 8 February 1991 Associated British Ports (ABP) sent its employees in Southampton and Cardiff a letter which said that the company had decided in future to offer personal contracts only. Pay increases were to be determined solely by the company and rights to representation and negotiation were removed.

Ten members of the rail and maritime union RMT at Southampton and Cardiff refused to sign the new contracts. As a result they received a smaller pay increases than colleagues who had signed.

WIlson and the ABP workers lodged employment tribunal claims arguing that their rights, under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, not to have action short of dismissal taken against them on trade union grounds had been infringed.

The case went to the House of Lords which held that the actions taken by their employers had not been in breach of section 146. The judges ruled that by refusing to pay them the same increases as offered to those employees who had signed the contracts, their employers had not been taking "action" against them. Instead they were guilty of "inaction" (of not paying an increase) which was not specifically outlawed under the 1992 Act.

The then Conservative government introduced legislation which made it clear that this form of "inaction" by employers was not contrary to the law.

The unions decided to take the UK government itself to the European Court of Human Rights. The court was asked to consider the relevance to the case of the European Convention on Human Rights. It ruled that there had been a breach of Article 11 which says: "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests".

The government argued that this did not give a right to collective bargaining nor did it give individual trade union members the right to receive identical benefits to those of non-trade union members. It said the fact that individuals were free to take strike action over recognition was enough to comply with Article 11. The trade union case was that the rights guaranteed under Article 11 "necessarily involved" rights to be represented in negotiations with their employers together with the right not to be discriminated against for exercising the right to representation and negotiation.

On all the main points of contention, the European Court has sided with the unions. Importantly it said that the "essential object" of Article 11 "is to protect the individual against arbitrary interference by public authorities and, in addition that it guaranteed "positive obligations to secure the effective enjoyment of these rights". While it accepted that the government itself had no role in the employers' decisions to dismiss this did not mean that the applicants did not have a cause of action against the state in other respects. In particular it held that the words "for the protection of his interests" in Article 11 had to mean that collective bargaining would be one way of enforcing that particular right. While not going as far as to say that the Convention imposed a legal obligation on employers to recognise a union, the court makes it clear that it does impose some legal obligations. The court noted that UK law seemed to allow employers to treat employees who were not prepared to renounce a freedom that was an "essential feature of trade union membership" less favourably. This amounted to a "disincentive or restraint" on the use by employees of the courts to protect their interests. The court says specifically that "by permitting employers to use financial incentives to induce employers to surrender important union rights" the UK government failed to ensure that employees had the rights established under the Convention.

The outcome of the case is twofold. First, the government will have to pay compensation and costs of around £150,000. More importantly the court has laid down clear rules on the rights that employees must enjoy over negotiation and collective bargaining. The ruling means that the government will have to amend the law. It will also have to make it clear that trade union members have protection against detrimental action (or indeed inaction) taken against them where the aim is to detach them from the union. At the same time the ruling should assist unions in recruiting more members to unions and strengthening their bargaining power.