#40 - Freedom Of Association - Labour Law

Labour Law Reading Session 6

(Freedom of association)

Collins, Ewing and McColgan, chapters 7 and 8.2:

• 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.

• 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.

• 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.

• Typical functions of a trade union tend to include:

  • Service function: Unions provide services to members e.g. legal services.

  • Workplace representation: rep accompanies member in grievance/disciplinary hearing etc

  • Regulatory & political representation: collective bargaining and lobbying

• 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.

• 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.

• 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).

• 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.

• 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

s.145B: Workers have right not to be made offers by the employer which would result in his not having terms determined by collective negotiation. Breach can lead to complaint to employment tribunal.

145C: Complaints are time limited to 3 months

145D: Burden is on employer to show that his sole purpose was not to induce the worker away from union activity/collective bargaining

145E: Remedy is damages not exceeding 3,100

145F: worker can relate to a former worker of the employee

s.146: A worker has a right not to be subjected to detriment for the sole or main purpose of stopping/preventing/discouraging him from being/not being a union member/involved in union activity/making use of union services outside work hours.

s.147-148: Burden of proof on employer and time limit of 3 months

s.148: Remedy is just and equitable compensation considering benefits loss as a result of the action complained of, subject to damages.

s.152: An employee is unfairly dismissed if the reason or principal reason was because of union/not union/using union services etc

s.153: Dismissal is unfair if P is made redundant but was selected for the principal reason of involvement/non involvement in unions etc

s.154: Unfair dismissal for union reasons still applies even where the age limits for normal unfair dismissal have passed.

s.155: Union activity cant count as contributory fault in an unfair dismissal claim

s.156: Dismissal on these grounds has a minimum basic award of 4,700

s.160: An employer can join a trade union official/other TP to proceeding if that person induced the employer to dismiss P.

s.186: A term or condition of a contract for the supply of goods or services is void in so far as it purports to require a party to the contract—

(a) to recognise one or more trade unions (whether or not named in the contract) for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(b) to negotiate or consult with, or with an official of, one or more trade unions (whether or not so named).

s.187: Prohibition on refusing to deal with a supplier who doesn’t recognise a union etc

TURERA s.13: amendment on the employer’s purpose under s.148 TULRCA

Employment Relations Act 1999 Schedule 2: (amends TULRCA- see that on Westlaw for amended version)

Employment Relations Act 2004: (more amendments to TULRCA)

Carrington v Therm-A-Stor Ltd [1983] ICR 208: D opened a factory and most of their workers joined a union. On the application of the union for recognition, P sacked 20 employees (not on the basis of their alleged involved union activities, but simply in response to the union’s application for recognition. CA held that this could not be an automatically unfair dismissal on the grounds of involvement in union activities under (forerunner to) s.153. Although CA conceded that this might be though a lacuna in the law, it was for parliament to resolve and not for the courts to amend the law based on what they thought parl must have intended. (Although the dismissals were found to be unfair, it was not on the automatic ground of individual’s union involvement and hence the extra compensation available under this ground was not granted to the workers).

May LJ: The dismissals cannot be brought within the wording of the section even though the section was clearly aimed at a mischief very similar to that which befell the employees.

Harrison v Kent CC [1995] ICR 434: P worked for D and had been a union member, shop steward and involved in strike disputes. When he applied for another job with D, he was refused on the grounds of his previous activities. He claimed that he had been refused employment for being a union member under s.137(1). EAT allowed his claim, interpreting the section as applying to union activities as well as mere membership...