Neil Todd, a member of Thompsons Trade Union Law Group, looks at the rationale behind the RMT claim that it is bringing in the European Court of Human Rights in Strasbourg against the UK government.

Earlier this year, the RMT union filed an application claiming that its right to freedom of association under Article 11 of the European Convention on Human Rights and Fundamental Freedoms was being infringed.

Outline of the RMT claim

An international treaty of the Council of Europe (with members from 47 European states), the convention has been ratified by the UK and is directly incorporated into UK law by the Human Rights Act 1998.

The first limb of the union’s claim relates to the onerous obligations on unions under UK law to provide a Notice of Ballot.

The second limb relates to the outright prohibition on taking secondary or sympathy action in the UK, even when the secondary employer is closely associated with the primary employer in the dispute.

Both limbs of the claim arise out of two specific sets of facts: the first in relation to an injunction granted in favour of the French energy firm EDF; and the second in relation to circumstances when the RMT was prevented from taking secondary industrial action against a company known as Hydrex.

The EDF case and Notices of Ballot

In the previous feature, we explained that the Notice of Ballot given by the union to EDF described the category of members to be balloted as “engineer/technician”. This was how the RMT categorised affected members on its database.

EDF claimed that it could not identify which groups of workers would be balloted and subsequently called on to take part in industrial action from this description.

It argued that the information given in the Notice of Ballot was not as “accurate as was reasonably practicable in the light of the information in the union’s possession” as required by section 226A(2D) TULRCA.

Granting the injunction, the High Court held that EDF was entitled to have been told in the Notice of Ballot the “trades” to which the members belonged so that it could make plans in advance of the industrial action. The fact that the RMT did not know anything more itself did not absolve it of the responsibility to make further inquiries.

The RMT sought permission to appeal to the Court of Appeal, but was refused by both the High Court and the Court of Appeal. It had no other avenue of redress in UK courts and was therefore free to present its claim to the European Court of Human Rights.

The Hydrex dispute and secondary action

A number of RMT members employed by Fastline Limited, a subsidiary of Jarvis plc, transferred to Hydrex Equipment (UK) Ltd under TUPE. Following the transfer, Hydrex sought to worsen the terms and conditions of the transferred employees to harmonise them with those of its existing workforce.

The RMT members employed by companies within the Jarvis group were sympathetic to the situation faced by their former colleagues. They were worried that they might be next in the drive to worsen collectively bargained terms and conditions.

Hydrex still had a close relationship with Jarvis, not least because it was dependent on the group for much of its work. The RMT realised that it would be much better able to defend the terms and conditions of its Hydrex members if it could involve the Jarvis group members in any industrial action.

But the RMT also realised that the trade dispute was only between the employees of Hydrex and their employer. It knew that it could not take industrial action against a party that was not the party to the trade dispute (section 224 TULRCA), meaning that it would be unlawful for the Jarvis group employees to take action.

The RMT could not therefore call for secondary, or sympathy, action.

Because the prohibition in section 224 TULRCA was absolutely clear and it had no domestic remedies to exhaust, the union was free to pursue its claim to the Strasbourg Court without starting court action first in the UK.

Article 11, European Convention on Human Rights

Article 11 of the convention provides that:

“1. Everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”

Until 2008, the Strasbourg Court had treated the right to collective bargaining and the right to strike as individual aspects of the freedom of association, allowing member states to choose how to achieve the objective set out in Article 11.

For example, in Gustaffson -v- Sweden, the court said that “Article 11 does not secure any particular treatment of trade unions... The State has a choice as to the means to be used”.

Demir and Baykara -v- Turkey

That all changed in 2008 with the landmark case of Demir and Baykara -v- Turkey, which was about a Turkish municipality that had reneged on its obligations under a collective agreement.

When the Turkish courts ruled that the union of civil servants did not have authority to enter into collective agreements, members of the union complained to the Strasbourg Court saying that their rights under Article 11 had been infringed.

The court agreed, but it was the way it came to that conclusion that is important. It started by reviewing a number of international law instruments, including: International Labour Organisation (ILO) Convention numbers 87 and 98 on the Freedom of Association and Protection of the Right to Organise and the Right to Organise and Collective Bargaining, the International Covenant on Civil and Political Rights, the European Social Charter and the EU Charter. It also said that it was important to look at the practice in those states that were party to the European Convention.

The court then said that its previous case law should be “reconsidered” to “take account of the perceptible evolution in such matters, in both international and domestic legal systems”. And it said that it now also had “to take into account the elements of international law other than the European Convention, the interpretation of such elements by competent organs, and the practice of European States” in defining the meaning of rights under the convention.

There is a mass of decisions and commentaries on trade union rights, and particularly the right to strike, from the supervisory bodies overseeing ILO Convention numbers 87 and 98.

The ILO’s Committee of Experts has already condemned legal requirements such as threshold percentages for support in a ballot, the fact of industrial action amounting to a breach of the contract of employment and therefore grounds for dismissal and civil liability for the consequences of industrial action.

It has considered the UK’s industrial action laws on a number of occasions and each time has found them to be in breach of ILO Convention number 87. For example, because of the complexity of the balloting notification requirements and the ban on secondary action.

The European Social Charter is supervised by the European Committee of Social Rights. In 2002, the committee said that the UK did not guarantee the right to strike in accordance with Article 6 of the charter, that the permitted scope and procedural requirements for industrial action were restrictive, that the consequences for unions when action was found to be unlawful were serious and that workers had inadequate protection from dismissal.

The committee made similar findings in relation to the UK in 2000, 2004 and 2006. The committee’s 2006 report was then adopted by the Committee on Economic and Social Rights in its “Report on the UK’s implementation of the International Covenant on Economic and Social Rights” in June 2008.

Although the Demir and Baykara case was about collective bargaining, the principles have been embedded and developed in a number of subsequent Strasbourg cases to do with industrial action.

The RMT is relying heavily on the court’s reasoning in that and subsequent cases.

The union has also filed a complaint covering the same ground with the Freedom of Association Committee of the ILO, the intention being to use its decision as part of the argument in Strasbourg.

The backlog of cases at the Strasbourg Court is historic and so it’s unlikely that there will be any decision within two years. But the case has at least been filed and we now await the government’s response with interest.

Industrial action advice from Thompsons

Thompsons specialist Trade Union Law Group, with members throughout the country, has particular expertise in the legal issues arising out of industrial action and has represented unions in all the significant cases over the last year.

The legal questions associated with industrial action are invariably complex. In this edition of LELR, we have sought to explain some of the issues that have been the focus of court cases over the last year.

These comments are not intended as a comprehensive statement of the law in relation to industrial action, nor as a substitute for legal advice in any particular situation.

Our Trade Union Law Group would, however, be pleased to assist in any way. But it is essential that we receive requests for advice and assistance in accordance with individual unions’ specific arrangements with Thompsons.