The Current Legal Arrangement for UK Trade Unions - Essay Example

?The Current Legal Arrangement for UK Trade Unions: Linking UK Industrial Relations Law to International Labour Standards Introduction Freedom of association and the right to strike is comprehensive and widely debated. It is a major component of a social, liberal, or democratic society: “protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in society” (Harris & Joseph 1995: 465). The right to freedom of association has been acknowledged in UK law like other basic liberties or human rights; according to Hepple (2005), individuals have been given to right to associate with others and to reinforce the association’s interests, on condition that their way of carrying it out was not otherwise controlled by law. Historically, there have been minimal official restrictions on freedom of association in the United Kingdom, even though there have been several, created by a variety of issues (Keith 2008). Mostly, and definitely in the recent decade, the primary concern is related to limitations on trade unions with regard to which several statutory limitations and other restrictions have been implemented (Wrigley 2002). These actions have raised several communications and grievances to the International Labour Organisation (ILO), the administrative units of which have had opportunity to discover that the legal code under consideration fails international labour standards (Servais 2008). This subject matter is specifically related to the perspective of the International Covenant’s Article 22 taking into consideration the fact that the essence of these mechanisms is identified by paragraph 3, as this essay will discuss, the exact implication of this prerequisite is quite indefinite. As stated by Keith Ewing and Carolyn Jones (2006): “Trade unions should... have rights which empower them and their members. These rights should be clear and unequivocal, and they should properly equip trade unions... to act within the boundaries of international labour standards to protect the interests of their members. This means a right to organise, a right to bargain and a right to strike in a new legal settlement for British trade unions...(p. 35)” In view of this statement, this essay will critically analyse the industrial relations law in the United Kingdom. It will provide a brief historical discussion of the law relating to freedom of association and the right to strike and will identify which aspects of UK industrial relations law fail to meet international standards. The Right to Freedom of Association As stated in Article 22(1) (Jayawickrama 2003): Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests (p. 735). What is quite ambiguous is the degree to which Article 22 safeguards the movement of individuals who are in association with others. A major problem, stressed by the constitutional courts on the one hand and European Court of Human Rights’ covenant on the other, is whether securities resembling those in Article 22(1) are valid only to safeguard the right to freedom of association, or whether they act further by safeguarding the freedom to act in association with others to advocate the fundamental objectives of the association under consideration (Blanpain 2010). The mechanism in constitutional and international law, by and large, has been to espouse the earlier, much restricted, and much less radical context of interpretation (Keith 2008). As stated by Lecher and Platzer (1997), it is the perspective of the Human Rights Committee as well. Taking into consideration the quite narrow statute it is challenging to determine with any level of accuracy whether and to what degree UK law and practice meet Article 22(1). Nevertheless, there are three primary concerns which emerge for analysis: (1) the right to join an association; (2) right of the association to manage its internal activities; and (3) the right of the association to take part in activity to support the members’ interests (Ewing & Jones 2006). To the extent that the first of these concerns is involved, as claimed by Novitz (2003), there are hardly any limitations on the freedom of people to form and belong to groups of their preference for political, economic, and social intentions. The second concern in question is quite more complicated. This is the issue whether Article 22’s freedom of association covers the right of the association to manage its internal operations, and if whether UK law and practice meet this provision. The document of the International Covenant on Civil and Political Rights (ICCPR) is indifferent to this issue, like certainly is in the passage of ECHR’s Article 11 (Janis et al. 2008). Nonetheless, according to Koch (2009: 251), the issue is suggested in brief in Cheall v. United Kingdom, in which the petitioner, an ACTSS’s member beforehand, purportedly a failure on the British Government’s side to meet Article 11 after his eviction from APEX, another trade union, to meet TUC guidelines in relation to membership transfer from one union to another. The Committee of Experts of the ILO has adopted the idea that there is no breach of Convention 87’s Article 3 with regard to statute obliging the compulsory selection of trade-union administrative boards, election prior to strikes, or election every ten years for the furtherance of political entities (Van Dijk et al. 1998). Other limitations were also endorsed, such as the right of union members to access their union’s accounting documents and procedures handling eviction or exclusion from a trade union where an agreement for union membership is existing (Harris & Joseph 1995). Nonetheless, several procedures were questioned by the administrative units of the ILO, including specifically statutory limits on the freedom of trade unions to reprimand and evict strike-breakers (Harris & Joseph 1995). According to Colgan and Ledwith (2002), if Article 2 of ILO Convention ’87 is to be a basis for the reading of Article 22 of ICCPR, then these limits may comprise a breach of that agreement as well. The third concern at question is possibly simpler in view of the resolution of the ‘Human Rights Committee in the Alberta reference’ (Harris & Joseph 1995: 82). This pertains to the limits not on the trade unions’ internal operations, but on the actions where in trade unions may participate in order to support their members’ interests communally (Gospel & Wood 2003). Several procedures have been developed to limit the right to strike, intended for the trade-union group and the individual striker (Martin et al. 1999). As much as the latter is involved, British employees have usually enjoyed quite minimal legal protection against discharge for participating in industrial action such as strikes, regardless of their objective or conditions (Hepple 2005). Under the 1978 Employment Protection (Consolidation) Act, as stated by Wrigley (2002), industrial courts were rejected authority to hear grievances of the unjust removal of strikers unless it could be justified that the employer had discriminately evicted or re-involved any of the individuals who were participating or had participated in the action under consideration. . As indicated, it was not just the status of the individual employee which was made less stable. The exemptions from tortious obligation which safeguarded the trade unions and their authorities when they assembled industrial activities were also restrained substantially (Blanpain 2010). These new limitations linked to the objective of the action, the means which may be used to endorse it, and the process which should be pursued before the activity is called (Novitz 2003). Hence industrial movement should pertain ‘entirely or mostly’ to an official objective, rather than be simply ‘related to it’. According to Ewing and Jones (2006), tortious responsibility for minor and sympathy movement is reinstated, and industrial activity should be headed by an election and by providing memo to the employer. A great deal of this agenda of legislation was rejected by the administrative agencies of the ILO as breaching the ILO Convention 87, specifically Article 3 (Harris & Joseph 1995). Yet, the Human Rights Committee appears hesitant to interpret the freedom of association under Article 22 to cover the right to strike (Gospel & Wood 2003). Consequently it may be complicated to dispute that numerous of these limitations—which others may view as weakening the ability of trade unions efficiently to safeguard and endorse the members’ interests—breach the provisions of Article 22(1) (Keith 2008). This is in spite of the provisions of Article 22(3) which stipulates that (Servais 2008): Nothing in this article shall authorise State Parties to [ILO Convention 87] to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice the guarantees provided for in that Convention (p. 110). It is hence uniquely strange that ILO Convention 87’s Article 3 should help the reading of ECHR’s Article 11 as much as it pertains to the independence of trade unions, but not as much as it pertains to the affairs of trade unions (Koch 2009). Recognisably, Cheall was the Commission’s resolutions, which may not be espoused by the Court (Servais 2008). Nevertheless, similarly, it may be important to re-evaluate the legislation formed in the 1970s, at the initial phase in the mature existence of the Court, specifically taking into consideration its quite controversial resolutions on the unfavourable right not to associate (Wrigley 2002). According to Gross and Compa (2009), it would be quite adverse if the sole input of the European Court of Human Rights to Article 11 weakened instead of promoted the freedom of association and the right to strike. The Right to Strike and the Right to Bargain UK law, possibly unusual, does not grant a right to strike. The fundamental legal premise is that when workers pull out their labour, they commit a violation of contract (Holmes, Lilico, & Flanagan 2010). A trade union, by invoking a ballot for industrial action, is making that violation. In cases where employment agreements had been dealt with like other forms of contract, the employee and the union could be legally responsible to be prosecuted under tort law by a person harmfully affected by the industrial action, as well as the employer, for the monetary harm brought about by the strike (Holmes et al. 2010). The workers could be at risk of action from the employer with regard to the violation of contract, such as dismissal or disciplinary steps. Nevertheless, law of industrial relations, completely distinctive, grants wide-ranging immunities from tort liability and violation of agreement (Jones 2010). In spite trade unions frequently protesting ‘anti-union’ statutes, important legislation in fact safeguard them and their members from the power of the employer to take legal action, as long as they conform to specific policies (Servais 2008). Both are safeguarded from the employer’s action if the union fulfils the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, usually called ‘TULR (C)A sections 226-234’ (see appendix A) (as cited in Holmes et al. 2010: 2), establishing actions which the unions should take to carry out a ballot and consequent industrial action. These are mainly pragmatic steps to make sure that the ballot procedure is carried out appropriately. There is an anticipated balance between the union’s privilege to call a strike and acquire security for itself from tort liability and the employer’s privilege to discern the threat’s nature which it confronts and have a realistic opportunity to control its enterprise against it (Keith 2008). These immunities might have been favourable beforehand, when numerous employers held ‘monopsony’ control over a mostly homogenous labour force (Holmes et al. 2010: 3). In instances where employees experience difficulties in transferring to another employment if they were discontented with their current work conditions and compensations, it would be rational to have a representative unit, or the trade union, to bargain for them with the employer (Gospel & Wood 2003). This trade union would also demand the power to call a strike against employer/s (Blanpain 2010) as another way to the risk of employees transferring to another employer. Nevertheless, such provisions are much more unusual in the UK nowadays than in the past. These procedures were created to reduce what was believed as undemocratic and reckless actions by some trade unions (Hepple 2005). These conditions, somewhat modified, are stated in the present legislation, specifically, Part V of the TULR(C)A (see appendix b) (Gross & Compa 2009). As far as issues of trade-union independence are involved, several concerns have been brought up by the Committee of Experts. It is apparent that there are legislations in this domain since 1980 that did not violate the provision of Convention 87 (Harris & Joseph 1995). This is factual, for instance, of the mechanisms originally launched by the Trade Union Act 1984 obliging compulsory elections for the executive committees of trade unions, compulsory ballots prior to strikes, and compulsory ballots every ten years (Gospel & Wood 2003). A quite distinct measure has been implemented in relation to the legislation concerning the expulsion and discipline of trade union members (Jones 2010). The Committee of Experts seemed to recognise, as not breaching Convention 87, the limitations on the unfair expulsion or exclusion of trade union members in a closed-shop case, procedures launched in 1980, and finally changed in 1993 (Janis et al. 2008). Yet, they had much difficulty with the mechanisms originally launched as Employment Act 1988’s section 3 barring trade unions from imposing disciplinary steps against their members who decline to take part in a strike or picket (Holmes et al. 2010). Even though the Committee recognised that some restrictions on the disciplinary privileges of trade unions may be allowed, it was also discerned that theoretically Article 3 obliges that “union members should be permitted, when drawing up their constitutions and rules, to determine whether or not it should be possible to discipline members who refuse to participate in lawful strikes or other industrial action” (Harris & Joseph 1995: 102). This is a relevant assumption which would make it complicated for the British administration to protect the legislation as being justified in a democratic nation for ‘the protection of the rights and freedoms of others’ (Harris & Joseph 1995: 102). As much as the connection between employers and trade unions is involved, three subject matters have emerged for deliberation before the administrative agencies in Geneva, namely, ‘the right to organise’, ‘the right to bargain’, and ‘the right to strike’ (Harris & Joseph 1995: 102). The Committee of Experts in 1989 paid full attention to developments in UK labour law and declared that the limitations on industrial action fails the provisions of Convention 87 on several bases (Gross & Compa 2009). Two issues emerge here: first, the liability for tort of the trade union for calling a strike, and second, the tort liability of employees for participating in it (ibid: 92). To the extent that the former is involved, this has been established in the UK since 1906 by a sequence of legislative protections from common law tort liability (Keith 2008). Nevertheless, according to Lawlor and colleagues (1999), in the 1980s these protections were severely limited, with the range of allowed industrial action being curtailed by restricting the objectives for which these steps may be taken, restraining the strategies which may be used to endorse a dispute, and obliging specific procedural provisions, like ballots, to be fulfilled beforehand. Conclusion Perhaps the most important issue here is the quite limited view of what the freedom of association and the right to strike involves. The omission of the right to strike especially implies that the essence of Article 22 is significantly cut back in the sense that a good deal of the statutes ratified since the 1970s limiting the right to freedom of association and the right to strike is evidently beyond its extent. Nevertheless, this is not to conclude that these programmes are, albeit the strength of Article 22 will be reduced in the Human Rights Committee were to implement the statute of the ILO with regard to the issue of the internal independence of trade unions, having refused in the case of the right to strike. However, mostly, this is quite careful evaluation motivated mainly by the decision and action of the Human Rights Committee in the Alberta reference. Given that the analysis is accurate, it would have a tendency to indicate that the International Covenant might not be up to the task of safeguarding free trade unionism from the free market’s demands. References Blanpain, R., (2010) Comparative Labour Law and Industrial Relations in Industrialised Market. UK: Kluwer Law International. Colgan, F. & Ledwith, S., (2002) Gender, Diversity, and Trade Unions: International Perspectives. London: Routledge. Ewing, K.D. & Jones, C., (2006) ‘The Right to Strike: From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006’, Institute of Employment Rights, pp. xviii-308. Harris, D. & Joseph, S., (1995) The International Covenant on Civil and Political Rights and United Kingdom Law. Oxford: Clarendon Press. Hepple, B., (2005) Labour Laws and Global Trade. Portland, Oregon: Hart Publishing. Holmes, E., Lilico, A. & Flanagan, T. (2010) ‘Modernising Industrial Relations’, Policy Exchange, http://www.policyexchange.org.uk/images/publications/pdfs/Modernising_industrial_relat.pdf Gospel, H. & Wood, S., (2003) Representing Workers: Trade Union Recognition and Membership in Britain. London: Routledge. Gross, J.A. & Compa, L., (2009) Human Rights in Labour and Employment Relations: International and Domestic Perspectives. UK: Lera Research Volume.\ Janis, M., Kay, R.S. & Bradley, A.W., (2008) European Human Rights Law: Text and Materials. New York: Oxford University. Jayawickrama, N., (2003) The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. London: Cambridge University Press. Jones, S. (2010) ‘Strikers--- Protection Against Dismissal’, KBW, http://www.legal500.com/assets/images/stories/firmdevs/strikersandunfairdismissalseanjones.pdf Keith, B., (2008) The Labour Movement in Britain from Thatcher to Blair. UK: Peter Lang. Koch, I.E., (2009) Human Rights as Indivisible Rights. UK: BRILL. Lawlor, T., Rigby, M. & Smith, R., (1999) European Trade Unions. UK: Routledge. Lecher, W. & Platzer, H., (1997) European Union—European Industrial Relations?: Global Challenge, National Development and Transitional Dynamics. London: Routledge. Martin, A., Ross, G., Baccaro, L., Daley, A., Fraile, L. & Howell, C., et al., (1999) The Brave New World of European Labour: European Trade Unions at the Millennium. New York: Berghahn Books. Novitz, T., (2003) International and European Protection of the Right to Strike. New York: Oxford University Press. Servais, J., (2008) International Labour Law. UK: Kluwer Law International. Smethurst, J. & Carter, P., (2009) Historical Directory of Trade Unions. England: Ashgate. Stationery Office, (2009) ‘Any of Our Business? Human Rights and the UK Private Sector First Report of Session 2009-10: Vol. 1 Report and Formal Minutes: House of Lords Paper 5-I Session 2009-10’, Stationery Office Books. Van Dijk, P. et al., (1998) Theory and Practice of the European Convention on Human Rights. UK: Springer. Wrigley, C., (2002) British Trade Unions since 1933. Cambridge, England: Cambridge University Press. Appendix A In particular, Section 219(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 implicitly acknowledges that, in the absence of statutory provisions to the contrary, a trade union would be liable for the tort of inducing breach of contract if it caused its members to cease working for an employer, in breach of their employment contracts, in furtherance of a trade dispute. However, it then spells out (section 219 (4)) that if the ensuing provisions of the Act are compiled with, statutory protection comes into force – conversely, failure to comply with these requirements means a trade union (and its members) are unprotected in tort. In summary terms, s 226(1)(a) provides that in calling for industrial action a trade union is not protected unless supported by a ballot, and s 226(2)(a)(ii) provides that there is no support by a ballot save a ballot which complies with all of the provisions of sections 227 to 231. Section 232B (inserted by the Employment Relations Act 1999), provides that in relation to the requirement of certain sections, notably not including s 231, a failure to comply which is ‘accidental. and on a scale which is unlikely to affect the result of the ballot’ should be disregarded. This suggests that such accidental noncompliance is not permitted in relation to s 231. Section 226A(2C) (also inserted by the 1999 Act), which is concerned with information communicated before the ballot, refers to that information being ‘such as will enable the employer readily to deduce certain facts’ including ‘the total number of employees concerned’. By contrast, s 231 requires the actual numbers to be communicated. *taken from Holmes, Lilico, Flanagan 2010, p. 2 Appendix B (2) Dismissals during unofficial action 5. TULR(C)A 1992, s. 237(1) provides that: “An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action”. Note that this stripping of protection is not limited to cases where the reason for dismissal is that he took part in the strike or other action. For instance, an employee dismissed on capability grounds in circumstances that would otherwise be unfair is not protected. *taken from Jones 2010, p. 1 Read More