Securing freedom of association

Notes

1. Compare Small Business, Employment and Enterprise Act 2015, Section 120.

2. Emphasis supplied. The right to freedom of association and membership of a trade union for the protection of one's interests are also protected by the Universal Declaration of Human Rights 1948, Articles 20 and 23; International Covenant on Economic, Social and Cultural Rights 1966, Article 8; International Covenant on Civil and Political Rights 1966, Article 22; ILO Convention 87; European Social Charter 1961 (rev'd 1996), Article 5; Charter of Fundamental Rights of the European Union 2000, Article 12. Some of these and related Treaties elaborate the rights further such as by protecting the right to strike expressly as in ICESCR, Article 8(1) (d), ESC, Article 6(4), and CFREU, Article 28; or by protecting collective bargaining rights expressly as in ILO Conventions 98 and 151, ESC, Article 6(2), CFREU, Article 28. Where the protection of such rights is not express it is implicit. All these provisions have been ratified by the UK.

3. Likewise, the other Treaties referred to in the preceding note.

4. Demir and Baykara v Turkey (2009) 48 EHRR 54, para 154. Note, however, the appeasement of the United Kingdom in respect of the duty to promote collective bargaining in Unite v UK , see Note 75.

5. Hrvatski Lijecnicki Sindikat v Croatia App No 36701/09 (27 November 2014), paras 56 and 59.

6. Thus in ASLEF v UK (2007) 45 EHRR 34, the ECtHR held that a union was entitled to exclude fascists under its rules – so long as that did not impose a disproportionate penalty on the person excluded, such as loss of his livelihood.

7. The obligation proposed would not apply to positions other than those to which the Trade Union and Labour Relations (Consolidation) Act 1992 currently applies.

8. It is to be recalled that with the abolition of the closed shop, no union in the United Kingdom has the power to exclude a member from his or her livelihood. The range of penalties therefore are confined to the usual union sanctions, all of which can be avoided by resignation.

9. Palomo Sanchez v Spain , App No 28955/06 (2012) 54 EHRR 24, para 56.

10. See D Smith and P Chamberlain, Blacklisted , above.

11. S and B Webb noted it in the 1870s in their The History of Trade Unionism (1920 ed (first published 1894)), p 284. It was in issue in Jenkinson v Nield (1892) 8 TLR 540, and Bulcock v St Anne's Master Builders' Federation (1902) 19 TLR 27, in the tailoring and construction industries respectively; in both cases, it was held that, provided the predominant motive of employers operating the blacklist was to protect their own interests, then the operation of the blacklist was lawful.

12. The Independent Police Complaints Commission wrote a letter dated 19 June 2013 to a firm of solicitors acting for blacklisted workers recording that a Chief Constable had been appointed by the Home Secretary to lead an investigation by a police team into aspects of police involvement in blacklisting workers. The letter stated that the police team had ‘identified that the Consulting Association was an organisation that had developed from a number of other organisations dating back to 1917. The scoping also identified that all Special Branches were involved in providing information about potential employees who were suspected of being involved in subversive activity’. Up to 1993, the blacklisting activity subsequently conducted by the Consulting Association was carried on by an association of construction employers latterly known as the ‘Services Group’, under the auspices of the Economic League: House of Commons Scottish Affairs Committee, Blacklisting in Employment: Interim Report , HC 1071 (2012–2013), paras 9 and 10.

13. See the section ‘Making rights work’ above.

14. See ‘Conclusion’ of ‘Making rights work’.

15. The Parliamentary retreat on this issue was matched by an important High Court victory barring Whitehall from unilaterally removing check off provisions in the Civil Service which were held to be a contractual right enforceable by the union: Cavanagh, Williams and PCS v S of S for Work and Pensions [2016] EWHC 1136 (QB).

16. Employment Relations Act 1999, Section 10.

17. A proposal inserted in the Trade Union Bill but diluted under irresistible pressure in the House of Lords.

18. In effect inverting the purposes of the Trade Union Act 2016.