9. The Right to Organise
Recap of Previous Lecture
Freedom of Association (FoA)
A fundamental right recognized in many national constitutions.
Protected under various international and regional legal instruments, including:
International Labour Organization (ILO) Conventions.
European Social Charter.
European Convention on Human Rights (ECHR).
Comprises three dimensions:
Freedom to be in association with others.
Freedom in the association of others.
Freedom to act in association with others.
European Court of Human Rights (ECtHR) case law on Article 11 ECHR since 2002:
Includes the right to utilize trade union services.
The right to be represented by a trade union.
Right to bargain collectively.
Right to strike.
Secondary Actions: Accessory to FoA; the UK has a complete ban on such actions, permissible under Article 11.
Courts tend to allow a wide margin of appreciation to states regarding social policy issues (e.g., abolition of Wage Boards in the UK).
Today’s Intended Learning Outcomes
Describe the definition and implications of the Right to Organise.
Outline and apply the legal provisions protecting the right to be a trade union member:
Trade Union Labour Relations Consolidated Act (TULRCA) sections 137-167.
Important sections: 137, 146, 152, 145A, 145B.
Blacklisting Regulations 2010.
Evaluate the adequacy of the remedies available for breach of these rights.
Required Reading
Textbook: Collins, Ewing, McColgan, pp 478-521, 571-80, 706-712.
Recent Court Cases:
Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47.
Mercer v Alternative Future Group Ltd & Anor [2022] EWCA Civ 379.
Secretary of State for Business and Trade v Mercer [2022] UKSC 80.
The Right to Organise
Definition:
First dimension of FoA; involves the freedom to associate with others.
Discussion of whether it should be termed a ‘freedom’ or ‘right’.
It represents a negative freedom, defined as freedom from restraint.
Consideration of its standalone significance.
According to ILO Convention No. 98, there is a mandate for "adequate protection against acts of anti-union discrimination."
Industrial Relations Act 1971:
Offers protection against discrimination based on trade union membership and participation in union activities.
Establishes the right not to join a union, which contributed to the legislation's survival through political changes from 1979-1997.
ECtHR Interpretation:
Positive obligations are derived from Article 11 ECHR, resulting in UK governmental changes regarding employment offers and collective agreement rights.
Protection of Positive Freedom of Association in UK Law
Establishes a set of rights regarding associations.
Notable protections include:
Right to not be refused employment due to trade union membership (TULRCA s.137).
Prohibition against blacklisting (Blacklisting Regs).
Right to not face discrimination:
Workers cannot suffer detriment (TULRCA s.146).
Employees may not be dismissed (TULRCA s.152).
Prohibition on ‘sweetener payments’ (TULRCA ss.145A-F).
These rights were introduced to comply with ECtHR judgments on Wilson and Palmer cases.
Importance of studying these sections in detail for application.
Refusal of Employment - TULRCA Provisions
TULRCA § 137(1): Unlawful to refuse employment based on:
(a) union membership status.
(b) unwillingness to join or cease to be a member of a trade union.
Broad Definition of ‘Refusal’ in § 137(5):
Includes actions like refusing to process applications or causing applicants to withdraw.
Making unreasonable terms for employment offers, or retracting job offers.
Employment Agencies: Similar provisions applied (TULRCA § 138).
Remedies for Breach (TULRCA § 140):
Compensation and non-enforceable recommendations.
Compensation can be awarded against third parties, such as trade unions enforcing closed shop agreements.
Refusal of Employment - Further Considerations
Concealment of trade union membership/activities leading to dismissal.
§ 137 does not protect individuals if the job is not outright refused, instead § 152 may apply.
Fitzpatrick v British Railways Board [1992]: Protection includes both pre-employment and post-employment screenings.
Protection Against Discrimination at Work - TULRCA
Provisions under TULRCA §§ 146-167:
Workers are protected from hostility stemming from:
Trade union membership.
Participation in trade union activities.
Utilization of trade union services.
Hostility defined as:
Detriment (s. 146).
Dismissal (s. 152).
Detriment can also result from inducements (ss. 145A and 145B).
Include reference to Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47: no qualifying employment period required for complaints.
Recent Case Law: Kostal UK Ltd v Dunkley & Ors [2021]
Case focused on prohibited inducements under § 145B TULRCA.
Employer's payment offer required workers to abandon collective bargaining rights.
Supreme Court ruling: Employers cannot make offers to workers before collective bargaining processes are fully exhausted, respecting collective bargaining principles.
Protection from Detriment - TULRCA
Detriment Protections as per § 146:
Workers should not face detriment linked to:
Union membership.
Participation in union activities.
Making use of trade union services.
Definition of Activities: Not explicitly defined; interpretations based on case law recommend a broad understanding.
Recent Case: Mercer v Alternative Future Group Ltd & Anor 2024:
Evaluated protections regarding participation in industrial actions under § 146.
Case involved Fiona Mercer, whose activities as a workplace rep were scrutinized post-action.
Supreme Court's Ruling: Indicated that the existing provisions of § 146 were incompatible with Article 11 ECHR, failing to protect against detriments short of dismissal.
Making Use of Trade Union Services
Provisions under §§ 146(2A), 152(2A) define services as available to workers via independent trade unions:
Involves representation by a trade union or union-driven concerns.
Exclusions: § 145B(4) notes that having employment terms set by collective agreement is not considered making use of union services.
Issues related to inducements to refuse collective bargaining protections become pertinent here.
Appropriateness of Timing for Engagement in Union Activities
Definition of 'an appropriate time' is stipulated:
Primarily, outside of working hours or during hours with employer consent.
Reference to §§ 146(2) and 152(2).
Protection From Unfair Dismissal
TULRCA § 152: Rights against unfair dismissal focused on union-related aspects:
Includes union membership, activities, or usage of union services.
Analysis of remedies includes:
Interim relief (ss. 161-166).
Minimum basic compensation, set at £7,836 (s. 156).
Additional compensation awards, subject to caps (ERA 1996 s. 117).
Protection Against Inducements
Provisions against discriminatory inducements aimed at encouraging abandonment of union membership or activities highlighted in §§ 145A and 145B:
Protections extend against detriment or dismissal due to not accepting said inducements.
Remedies under § 145E: Enables ET declarations and compensatory awards.
These protections apply only to individuals directly offered inducements.
Blacklisting Regulations and Related Legal Framework
Background: Originating from Employment Rights Act 1999 and enacted through Blacklisting Regulations 2010.
Regulations Include:
Prohibition of compiling, using, selling, or supplying a ‘prohibited list’ (Reg 3).
Prohibited actions include refusal to employ or denying services (Regs 5, 6, 9, 12).
Remedies Available: Focus shifts to declarations and compensation without retroactive effects on dismissals.
Evaluation of Legal Protections and Remedies
Critiques of Statutory Framework:
Points raised include the rigid division between individual and collective rights.
Combines narrow interpretations, potentially rendering legal enforcement challenging.
Emphasis on an individual’s responsibility to report infringements leaves protections limited, lacking union intervention.
Discrepancies in remedies explained: compensation lacks a punitive nature, reinstatement for dismissal is generally absent.
Conclusion
Reflection on Learning Outcomes:
The right to organise encompasses numerous protections and provisions essential for safeguarding trade union rights of members.
Gaps in current legislation necessitate ongoing assessment and potential amendments to align with evolving legal standards and protections under ECHR Frameworks.