#15009 - Freedom Of Association - Labour Law

LABOUR: FREEDOM OF ASSOCIATION

• A. INTRODUCTION

  • Note 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 [1972] 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 [2013] 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 definition

• Key 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 [1977] 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 practice

• A 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?

  • Inequality

    • Kahn-Freud: Analysed the labour market as involving an inequality of bargaining power. This inequality was counter-balanced by the presence of strong unions.

  • Human Rights

    • The 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 [2014] IRLR 49: ECtHR [130] “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 Perspectives

    • There 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 doctors

    • In 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 Role

    • Increasingly 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...