The Analysis of the Freedom of Association - Essay Example

? The significance of Wilson v UK [2002] IRLR 568 Introduction Freedom of association is indisputably a basichuman rights recognized not only in the United Kingdom constitution but also in across the globe. Besides being a human right, it is recognized as a civil liberty from within the United Kingdom and internationally. The fact that the freedom of association is contained in the Article 11 of European Convention on Human Rights (ECHR) is clear justification that this freedom is internationally recognized (Great Britain, 2008.p17). Freedom of association is considered an essential human right owing to the fact that it gives individuals an opportunity to assemble freely for a common good. Respecting the right of association implies that governments need to ensure that its individual members of the public freely come together to express, defend and pursue unified goals and interest (Gross & Compa, 2009.p124) As such public authorities are refrained from interfering with individual’s right to assemble and associate. It is noteworthy that freedom of association goes beyond coming together for a common good taking into consideration that it also recognized joining associations aimed at attaining a specified goal. Freedom of association is recognized both locally and internationally in the context of industrial relation. Employees have been granted the freedom to assemble and associate for common interest in respect to the terms and condition of employment. This means that workers have the right to join trade unions and collectively bargain. According to Novitz (2002. P 176) this right is recognized by two vital conventions C 87 and C98 of the International Labour Organization (ILO). This means that any action or inaction by the employer aimed at discouraging employees from joining trade unions is tantamount to infringement of the Freedom of association and as such is illegal. The fact that United Kingdom is part of the European Convention on Human Rights (ECHR) means that it must always uphold provisions of Article 11 of the Convention. Employers in the UK must always respect their employees’ freedom of association with respect to labour relations. UK has always had tough regulations on the industrial relation issues, even in the recent past. This claim can be justified by the enactment of the “Ullswater amendment”. This legislation was put in place by the Conservative government to limit operations of trade union activities Barnard, Deakin, & Morris, 2004. P150). Regulation of industrial relation by the UK government can be considered a breach on the ILO standards and ECHR conventions in three perspectives. First the regulations does not make necessary provisions for rights to participate in industrial action, secondly it does not protect organizers and participants in collective bargaining( Hepple 2005.p23) Finally the regulations places unreasonable constrains on the autonomy of trade unions, which is categorically granted to individual employees under Article 11 and 3 of the ECHR and ILO No.87 respectively. The case Wilson v United Kingdom case, which would later bring about far reaching consequences on the British labour laws after several year of court battle involved discrimination of an employee because of his stand on trade union (English, 2011). Dave Wilson was an employee of an Associated Newspaper at the Daily Mail. Wilson was denied 4.5% salary increase because he refused to denounce membership of National Union of Journalists (NUJ) (Thompsons Solicitors, 2012). The condition for pay hike was that the entire team of journalists had to give up their right to the terms and condition put in place by the collective bargain. The aim of the management was to discourage participation industrial action. Wilson refused to sign the contract offered by his employer whereby he ended up losing on the pay incentive. Wilson through his lawyer later filed an application by the courts protesting action of his employer. Significance of the ECHR ruling It is no doubt that the ruling of the ECHR on Wilson v United Kingdom case has serious implications on the labour laws in the UK (Ewing, 2003). Additionally the decision of ECHR is highly significant in protection of the right to freedom of association. For a number of years this vital right had been regulated in the United Kingdom. Trade unions and their members had tough time carrying out their activities especially industrial action in the UK owing to stringent regulations that gave employers an opportunity to frustrate collective bargaining. The regulations have also for a long time helped employers undermine the role played by trade unions in protecting the interest of their members (Blanke , Blanpain & Rose, 2005. P56) Allowing employers to offer financial advances to their employees on condition of dropping their rightful engagement in collective bargain in the UK is violation on trade unions and their members’ rights. The decision made by the ECHR is a clear justification to the end of actions taken by the employers to frustrate trade union operations. A change in the United Kingdom legislations on the labour relations is the first important significance of the decision made by the ECHR. Obvious UK government will be forced to make adequate amendments on key legislations relating to labour relation to make them compliant with Article 11 of the convention and Article three of the International Labour Organization. The first change will have to be made on the Ullswater amendment in 1993. By the time ECHR passed their judgement this legislation did not sufficiently protect the trade unions and their members from anti-union actions notwithstanding that it does not comply with the provision of Article 11 of the Convention. The decision of the ECHR is significant in the sense that it brings to the attention of the UK government that Ullswater amendment is a violation to the provisions of European Convention of Human Rights which they are major signatory to (Barlow, & Mortimer 2008. P106). Doing away with the Ullswater amendment is the best remedy to promoting freedom of association in the UK particularly with respect to the undertakings of the trade unions and their members. From the ruling of the House of Lords, it is evident that UK domestic Laws protected specifically the rights of union membership but not the benefits arising from membership which may include collective bargain of the terms of employment such as pay rise or working condition. The Lordships believed that unless there was proof that an employer has acted with the intention of penalizing or deterring the employee from joining union, nothing could restrain the employer from unfavourably treating an employee who has decided not take advantage of benefits advanced by virtue of being unionised. The judgement of the ECHR is highly important in the sense that it demonstrated the need for public authorities to refrain from interfering with the exercise of the rights protected under the freedom of association. In other words recognizing the right to come together while de-recognizing the right to collective bargain is an illusion owing to the fact that it undermines the employees’ right join associate for the pursuit of common interest (Blanke Blanpain, & Rose, 2005. P61). This claim can be justified by the fact that by offering favourable terms of employment to unionised employees who accept to relinquish their membership discourage existing and potential members of the union from becoming part of trade union. In other words the favourable terms offered to workers willing to withdraw from trade union is used by the employers to motivate unionised employees to denounce their involvement in the trade union while at the same time discourage employees willing to join the trade union abandon their interest in collective bargain. Another important significance of the ECHR judgment on the case of Wilson v UK is evident in the enactment of the Employment Relations Act 2004. Hardy (2011.p233) asserts that this law has extended much recognition of freedom of association among the employees as it seeks to protect employees from being induced by financial incentives to abandon their collective bargaining rights. It is noteworthy that Employment Relations Act 2004 provides statutory protection to employees against being motivated by their employers to enrol or not to enrol in as members of trade unions. Employees are also protected by the legislation against encouragement by their employers on whether to have or relinquish their terms and conditions contained in the collective bargaining agreement. Employers had always taken advantage of the loopholes created by the Conservatives government to induce their employees into becoming or not becoming members of the trade union and having or not having the terms and conditions extended in the collective bargaining agreements. July 2002 ruling of the European Court of Human Rights has given trade unions as well as their members autonomy to resist any frustrations from the employers. Before the landmark ruling by the ECHR unionised employees were always worried about dismissal or reprisal for refusing to accept incentives from their employers to abandon their rights in participation in trade union. However with the 2002 ruling of the ECHR employees are presently protected against dismissal or punishment owing to their relationship with trade unions and participation in official and lawfully organised industrial action. The period stated in the 2004 Act for lawful industrial action range from eight to twelve weeks. The trade unions are geared to benefit largely from the ECHR ruling as key amends to be made on the lab laws will see the unions receive public funds from the supreme government to modernise their operations (UK0403104N) (legislation.gov.uk, 2012). This means that unions will remain financially strong to charge their way forward in ensuring that employees enjoy their rights to peacefully assembly and freely associate with the a view of attaining common interest-collective bargain. The 2002 ruling of the ECHR reaffirmed that trade unions have a special right to instruments of freedom of association as per Article 11(1) (Hervey & Kenner, 2003. P71). This means that mere recognition of the right to become a member of trade union without the right to enjoying special aspects attached to the right is illusionary. As such the government was reminded of the need to obey Article 11(1) which emphasis on protection of interest. For this reason the ruling played a significant role in calling the state to safeguard the freedom to protect the job-related interests of the unionised members of staff by the trade union operations-industrial action. The ruling reaffirms that trade unions need to be heard and as such they must work hard to ensure that interest of their members is catered for adequately. By the time Wilson’s case reached the ECHR, United Kingdom courts only recognised voluntary system of collective bargain. No legal obligation was available in the UK labour laws to compel the employers to recognise trade unions and their right of collective bargain with the view of protecting their members’ interests with the voluntary system of collective bargain in place (De schutter 2010. P432). This claim can be justified by the House of Lords ruling in the case of Wilson v UK. This means that the plaintiff-Wilson had no legal remedy in compelling his employer to stop treating him unfavourable because of his stand on trade union and the right to collective bargain accorded by the freedom of association. However, with the ruling of ECHR it was now clear that the employers were trampling on individual employees right to freedom of association which involve right to peacefully assemble and join associations for the pursuit of common goal. In other words Wilson could now gain legal redress for unfavourable treatment by his employers after the ECHR ruling because he had a right to peacefully and freely join an association of his own in order to express, defend and pursue common goal and interest. The ECHR judgment brings into limelight the importance of voluntary system of collective bargaining. According to Blanke Blanpain & Rose (2005. P87) Before the ECHR ruling employers used to place limits on voluntary collective bargain through incentives thus restraining employees from using trade unions to represent their interest. Presently voluntary system gives authority to trade unions that are not recognised by an employer to convince employers to enter into collective agreement with them to negotiate interest of their member that seems to be of great essence. However, voluntary system of collective bargaining makes it possible for a trade union to organize industrial action despite the fact that it is not recognised by the employer. Employees should freely enjoy their right to join trade unions by instructing or authorizing the union represents their interest to the employer. The government must ensure that unionised employees are not restrained from using trade unions to make representation of their interest to the employers especially on issues relating to employment relation. References Barlow, K & Mortimer, J 2008,The labour movement in Britain from Thatcher to Blair, Berlin, Lang. Pp 87-106 Barnard, C, Deakin, S & Morris, S 2004, The Future of Labour Law Liber Amicorum Sir Bob Hepple QC. Oxford, Hart Pub. P150 Blanke T, Blanpain, R & Rose, E 2005, Collective bargaining and wages in comparative perspective: Germany, France, The Netherlands, Sweden and the United Kingdom, The Hague, Kluwer Law Internat. P56 Blanke T, Blanpain, R & Rose, E 2005, Collective bargaining and wages in comparative perspective: Germany, France, The Netherlands, Sweden and the United Kingdom, The Hague, Kluwer Law Internat. P61 De schutter, O 2010, International human rights law, Cambridge, Cambridge Univ Press. P 432 English, R 2011, Wilson v UK, Retrieved March 21 2012 from: http://www.1cor.com/1315/?form_1155.replyids=411 Ewing, K 2003, The Implications of Wilson and Palmer, Industrial Law Journal (2003) 32 (1): 1-22 Great Britain, 2008, A bill of rights for the UK? London, TSO. P17 Gross, J & Compa, L 2009, Human rights in labor and employment relations: international and domestic perspectives. Champaign, IL, Labor and Employment Relations Association, University of Illinois at Urbana-Champaign. P124 Hardy, S 2011, Labour law in Great Britain, Alphen aan den Rijn, The Netherlands, Kluwer Law International. P233 Hepple, B 2005, Labour Laws and Global Trade, Oxford, Hart Pub. P23 Hervey, T, & Kenner, J 2003, Economic and social rights under the EU charter of fundamental rights: a legal perspective, Oxford [u.a.], Hart Publ. P71 legislation.gov.uk, 2012, Employment Relations Act 2004, Retrieved March 21 2012 from: http://www.legislation.gov.uk/ukpga/2004/24/contents Novitz, T 2002, Freedom of Association and ‘Fairness at Work’—An Assessment of the Impact and Relevance of ILO Convention No. 87 on its Fiftieth Anniversary, Industrial Law Journal, 27(3), Pp. 169-191. Thompsons Solicitors, 2012, Law must be changed to protect union rights, Retrieved March 21 2012 from: http://www.thompsons.law.co.uk/ltext/l1080004.htm Read More