The Right to Strike? The Right to Associate?

Are the UK’s strike laws so stringent that they inhibit the right of freedom of association under Article 11 of the European Convention on Human Rights (ECHR)?

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The National Union of Rail, Maritime and Transport Workers (RMT) sought to challenge the domestic provisions by claiming such an infringement. UK law bans secondary industrial action, where such a strike does not involve a trade dispute between the union and the employer.  The RMT also argued that the balloting and notification requirements pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992 are so prescriptive that they act as an unwarranted restriction on the right of association.  The European Court of Human Rights has handed down its judgment.

Secondary Action

The Court rejected a complaint that the prohibition on secondary or sympathy industrial action in the United Kingdom breached the freedom of association under Article 11 of the ECHR.  Although the ban on secondary action interfered with Article 11 rights, it had a legitimate aim and was a proportionate measure, which fell within the bounds of the Government’s discretion.

The issue in question arose after a lawful strike took place with H Ltd.  The RMT wanted to put additional pressure on H Ltd by calling on its members at Jarvis to take secondary action in support of the strike. S.224 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits secondary action.  The RMT argued that this situation denied its members their rights under Article 11 ECHR, which guarantees the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions.

The Court unanimously held that there was no violation of Article 11 on the facts of the case. The majority view acknowledged that secondary action is recognised and protected as part of trade union freedom under ILO Convention No. 87 and the European Social Charter, and accepted that the statutory ban on secondary action constituted an interference with the RMT’s rights under Article 11.  However, it went on to hold that this interference was justified. States enjoy a wide margin of appreciation as to how trade union freedom may be secured, and this was wide enough to encompass the existing statutory ban on secondary action.

The Court also acknowledged that this ban had not been repealed despite changes of Government and that this denoted a democratic consensus behind it.  The RMT had been able to exercise the essential elements of its rights under Article 11: in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work.

Notice Requirements

The RMT also argued that the statutory requirements for strike-ballot notices breached its Article 11 rights. The RMT had relied on EDF Energy Ltd v National Union of Rail, Maritime and Transport Workers, where the High Court granted an injunction to prevent a strike because the ballot notice given by the RMT categorised some members as ‘engineers/technicians’ and this did not correspond with EDF’s job description. An injunction was granted, but the RMT re-balloted its members and succeeded in leading a strike two months later which induced EDF to improve its offer to union members resulting in a collective agreement. The Court considered it would be artificial to consider the injunction in isolation from subsequent events. What the EDF situation disclosed in reality was an ultimately successful collective action by the RMT.

This is a disappointing result. It should be borne in mind that the judgment should not be read as suggesting the workers in the UK enjoy the same degree of industrial rights as their European colleagues. The decision also underplays the significant practical hurdles that are placed in a union’s way to call for industrial action: the same degree of hurdles is not found in other jurisdictions.

Binder Bansel, Head of Employment

 

Binder Bansel, Employment,
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