#16793 - Freedom Of Association - Labour Law

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 gov6 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 TUsmakes 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

1. 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.

2. Representation function – interests of individuals are heard in the workplace e.g consultation and bargaining on behalf of workforcecounter-balance unequal bargaining power e.g 1 doctor trying to take on gov about your working conditions nothing will changeinvolve 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).

3. 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.

4. Government function – need for trade unions to engage with government in order to secure legislation that will enable them to perform their other functions.

5. 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).

• 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 TUsprivileged 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 levelinflation.

• 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.

• 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:

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...