Ban on secondary action
Labour & European Law Review Weekly Issue 370 21 May 2014
Article 11 of the European Convention on Human Rights stipulates that states cannot restrict the right to freedom of peaceful assembly and association except by law or to protect the rights and freedoms of others. In RMT v UK, the European Court of Human Rights ruled that although secondary industrial action in the UK was protected by Article 11, the outright ban was justified in the circumstances.
The RMT challenged two aspects of the UK industrial action legislation:
(i) the requirements of the pre-ballot notice. This aspect arose out of a dispute between the union and EDF Powerlink over pay and conditions. The company obtained an injunction to prevent the union from calling a strike on the grounds that it had not specified clearly enough in the pre-ballot notice the exact job descriptions of the workers concerned. The union organised a new ballot and the strike took place in late 2009 and early 2010. EDF made an improved offer which was accepted by the union’s members and took effect as a collective agreement the following April.
(ii) the outright ban on secondary industrial action in the UK. This aspect arose out of an industrial dispute in the rail maintenance sector after some union members transferred from Jarvis plc to Hydrex Ltd and the union could not call on the union members still employed by Jarvis to take part in sympathy action with its Hydrex members.
Decision of the Court: strike-ballot notice
The Court ruled that, because the union had been able to hold a further ballot after the injunction was granted in the EDF case and the consequent industrial action led to a settlement, there had been no interference with the union’s rights. It therefore declared this aspect of the challenge inadmissible.
Decision of the Court: secondary strike action
The Court ruled that, as secondary action was protected under the relevant International Labour Organisation Convention and the European Charter, the statutory ban on secondary action had interfered with the union's right to freedom of assembly and association under Article 11.
However, the Court noted that RMT had still been able to represent its members, negotiate with Hydrex on their behalf and organise a strike at their place of work, albeit on a limited scale. The fact that the union was convinced that secondary action would have won the day was speculation. The ban had not therefore meant that the union could not protect the interests of its members under national law. On the contrary, the ban supported the government’s legitimate aim of protecting the rights and freedoms of others - the employer, the public affected by the action and the wider interests of the domestic economy.
The Court stressed the room for manoeuvre (known as the margin of appreciation) for states to regulate matters of social and economic policy. Democratically elected parliaments were better placed than international judges to appreciate what was in the public interest on social or economic grounds and what legislative measures were best suited for the conditions in their country. Even though the UK was one of only a small group of member states to prohibit secondary action, the margin of appreciation offered still had to be wide.
The court took the fact that the ban had remained intact for over 20 years, through two changes of government, as evidence of a democratic consensus spanning a broad spectrum of political opinion in the UK. It therefore concluded that the facts of the case had not resulted in an unjustified interference with the union’s right to freedom of association. There was therefore no violation of Article 11.
This judgment means that the further a union is from exercising "core" rights the wider the margin of appreciation will be for the state. That said, the Court does confirm that industrial action is protected by Article 11 – and that includes secondary action. It therefore leaves open the possibility of some restrictions on the right to take industrial action not being capable of justification.