The Honourable Mr Justice Hodge:
1. The National Union of Journalists
(NUJ) has members who work for Mirror Group Newspapers (MGN). In the spring of 2003, it seemed likely that
MGN would start publishing its Racing Post newspaper seven days a week. This would mean a change in the terms and conditions
of journalists working in the Sports Division of MGN. The membership of the NUJ within the Division
increased. No union was recognised by
management to collectively bargain on behalf of staff within the Division.
Discussions began between NUJ and MGN.
They seemed to be going well. At
the NUJ, the negotiators clearly thought a recognition agreement was to be
signed with the union.
2. MGN has over 600 journalists working for its other
titles. It has a recognition agreement
with the British Association of Journalists (BAJ) for other national
titles. That union has about 140
journalists in membership working in those other titles. BAJ was formed in the early 1990s. It was and is a breakaway union from the NUJ.
BAJ is an independent trade union but is not affiliated to the TUC. It can be
reasonably inferred from this case that the two unions do not get on. At the time of the hearing before the CAC the
BAJ had at most one member who worked within the Sports Division of MGN. The NUJ had members representing probably
more than half of the journalists working within that Division. But the NUJ has
no recognition agreement of any sort with MGN in any of its national Divisions.
3. On 3rd July 2003
BAJ signed a recognition agreement with MGN under which BAJ obtained exclusive
negotiating rights with MGN for journalists in the SportsDivision. No notice of this possibility had been given
to the NUJ. The NUJ was shut out from
negotiating with MGN. The NUJ was no
doubt furious about this. The Central
Arbitration Committee (CAC) to whom this issue was referred describes the
treatment of the NUJ as shabby. It was
certainly unsporting.
4. The CAC conducted a hearing and decided that the
application for a recognition agreement made by the NUJ was not
admissible. The NUJ challenges the
lawfulness of that decision. MGN Ltd, as
interested party, is the main respondent to this application. The BAJ did not
appear and was not represented. The CAC appeared to address the court on human
rights issues alone.
The
Recognition Procedure
5. Schedule A1 Trade Union and Labour Relations (Consolidation)
Act 1992 (Schedule A1) as amended has, since 6th June 2000, provided
a mechanism by which independent trade unions with sufficient support from
within a proposed bargaining unit may obtain what has come to be known as
'statutory recognition'. The scheme is that a trade union seeking recognition
to conduct collective bargaining on behalf of a group of workers makes a
request for recognition to the employer. If the request is rejected the union
may apply to the CAC to decide whether the bargaining unit is appropriate and
whether the union has the support of a majority of workers in the unit.
6. The CAC must decide whether any application is
admissible. Formal procedures must be followed. But in addition by paragraph 35
Schedule A1 an application is not admissible if:
"the CAC is
satisfied that there is already in force a collective agreement under which a
union is (or unions are) recognised as entitled to conduct collective
bargaining on behalf of any workers falling within the relevant bargaining unit"
7. In this case MGN had entered into a voluntary recognition
agreement with the BAJ and had refused to recognise the NUJ. The union applied
to the CAC on 25th
September 2003 for recognition for collective bargaining by MGN in
relation to journalists employed in MGN's Sports Division. It relied on a
petition in support by 100 of the approximately 130 journalists involved. MGN,
in its response on 7th
October 2003, contended that the application was inadmissible due
to the existing collective agreement with the BAJ. The NUJ replied by asserting
that there was no valid collective agreement with BAJ.
8. The application was heard and considered by the CAC over
two days in December 2003. They issued their decision on 8th January 2004 and decided that the
application was not admissible. In accordance with the pre-action protocol the
NUJ asked the CAC to reconsider its decision, which it declined to do on the 16th March 2004. These
judicial review proceedings were commenced on 5th April 2004. Mitting J granted permission
to proceed by an order dated 15th
June 2004.
The
CAC decision
9. The NUJ's application to the CAC was that it should be
"recognised for collective bargaining by Sports Division-MGN Limited for a
bargaining unit consisting of all journalists working at the Racing Post,
Racing Post Weekender, Raceform Update, Racing and Football Outlook,
Raceform/The Form Book and Racing Post website, but excluding the Managing
Director (responsible for the above titles), the Editor of the Racing Post and
any freelance journalists working for the above titles".
10. The CAC decision is full and clear. It sets out the
background to the application some of which follows. It said in its decision
“29…. The BAJ
is a rival to
the NUJ for the representation of journalists.
Not only is the BAJ a competing union, it is also a breakaway from the
NUJ, having been formed in the early 1990s.
It holds a certificate of independence but is not affiliated to the
Trades Union Congress….
32. At some point in early June, Mr Turner, the
General Secretary of the BAJ became aware (in a manner, which was never fully
explained) of the NUJ’s discussions with the management of the Sports Division
and on June 13th, at a meeting with Mr Budd, Mr Turner received
confirmation of the NUJ’s approach. He
then sought to make an approach for recognition on behalf of the BAJ, which
management indicated it was prepared to entertain. From then onwards, matters between the BAJ
and the management proceeded rapidly, to the point where, at the latest by July
3rd, an agreement was arrived at for the recognition of the BAJ by MGN in
respect of journalists employed on the Racing Post and associated titles. At no time did the management make the NUJ
aware that it had a competitor in the recognition discussions. Nor did the management apply to the BAJ the
majoritarian principle which had featured so prominently in its discussions
with the NUJ. Indeed, it seems to be
common ground that throughout this period, and indeed right up until the
hearing, the BAJ has had at most one member among the journalists of the Sports
Division and on occasions none at all.
It needs no great creativity to imagine the reaction of the NUJ
officials when they heard of these events.
It seems to the Panel that theNUJ was shabbily
treated by the
management of MGN during the month of June”.
11. The CAC Panel then decided that the relevant date for it
to "be satisfied", in the words of para 35
of schedule A1, that a union is recognised, is the date the Panel takes its
decision on the application. That is clearly correct and appears to have been
accepted by the parties. It then dealt with the submission from the NUJ counsel
that the agreement with the BAJ was a 'blocking' voluntary recognition
agreement and that for it to be effective the union concerned "must have
'substantial' support, i.e. non trivial support but not necessarily majority
support'" The CAC Panel concluded on this submission…
39.
However, we
have found ourselves unable to accept this submission. The definition of recognition in section 178
of the Trade Union and Labour Relations (Consolidation) Act 1992 (as applied to
paragraph 35 by paragraph 3 (6)) seems to us clearly to contemplate that the
act of recognition is something to which only the employer and the recognised
union are parties. The status of a
recognised union flows from a decision of the employer to grant recognition
(and, no doubt, of the union to accept it) and not in addition from the consent
of the workers in relation to whom the collective bargaining will occur. Thus, section 178 (3) provides that
"recognition", in relation to a trade union, means "the
recognition of the union by an employer… to any extent for the purposes of
collective bargaining; and "recognised" and other related expressions
shall be construed accordingly”.
Equally, the definitions of "collective agreement" and
"collective bargaining" in section 178 (1) refer only to the unions
and employer or employers associations as parties to collective agreements. By
way of contrast, in section 244 of the Act a trade dispute is defined as
"a dispute between workers and their employer” relating wholly or mainly
to the same list of matters (set out in section 244 (1)) as those to which an
agreement must relate to or be connected with in order to constitute a
collective agreement (set out in section 178 (2)). This clearly shows that Parliament has been
astute to distinguish between relations between an employer and a trade union,
on the one hand, and between an employer and the workforce, on the other, for
the purposes of different statutory provisions.
40.
This being
so, it follows, it seems to us, that the requirement for employeeconsent
cannot be deduced from the use of the words "recognition",
"collective agreement" and "collective bargaining" in paragraph
35. If substantial workers’ support for
the recognised union is to be required, we can achieve this result only by
reading into paragraph 35 words which are not there. We do not think this is a legitimate act of
interpretation, especially in the context of this particular Schedule.
12. That
submission by the NUJ had been based on a reading of the phrase " on
behalf of” in para 35. The CAC declined to interpret
the phrase as requiring the consent or authority of the persons on whose behalf
the recognition agreement was entered into. It is, on the other hand, clear
that para 35 requires the collective agreement
conferring recognition to be "in force" and the CAC had to decide on
the meaning of the phrase. It accepted the agreement with the BAJ had come into
force on 3rd July 2003,
that it was not working as envisaged but that there was evidence of attempts to
make it work. It concluded this showed the agreement had not been abandoned or
suspended and so it was then still in force. The NUJ also argued before the CAC
that the provisions of the Human Rights Act 1998 ought to cause it to change
its view on its conclusions on Para 35 of the Schedule.
The CAC concluded its interpretation did not infringe the 1998 Act. It relied
on the decision of the European Court of Human Rights in Wilson and National
Union of Journalists v UK [2002] IRLR 568 noting that the case showed there
is no statutory obligation on employers to recognise trade unions although
unions and their members must be free to seek to persuade employers to listen
to what the union has
to say on behalf of its members. The CAC concluded the application was not
admissible.
13. It
is right to note that the CAC did not regard the exclusionary rule contained in
para 35 as having achieved justice in this case. The
Panel said at paragraph 43 'The employer
has been able to defeat what are in all probability the wishes of a majority of
the relevant workforce by the simple expedient of concluding a voluntary
recognition agreement with a wholly unrepresentative union.' They considered the case 'displays a lacuna in the legislation.'
The
NUJ's case
14. Mr Hendy on behalf of the
claimant, the NUJ, says the interpretation of the legislation under
consideration has not achieved justice. He acknowledged the exclusionary
recognition agreement had been signed on 3rd
July 2003. But he argued for an interpretation of paragraph 35 that
reflected as he put it 'industrial
reality not legal technicality'. He contends the CAC erred in law in
various ways.
15.First,
it is argued, the correct approach when construing para
35 is to decide if the agreement in question is a collective agreement rather
than just any agreement. Section 178 Trade Union and Labour Relations
(Consolidation) Act 1992 defines collective agreement to mean “any agreement or arrangement made by or on
behalf of one or more trade unions and one or more employers or employers
associations and relating to one or more of the matters specified below; and
“collective bargaining” means negotiations relating to or connected with one or
more of these matters.
(2) The matters referred to above are-
(a) Terms and conditions of
employment, or the physical conditions in which any workers are required to
work;
(b) Engagement or
non-engagement, or termination or suspension of employment or the duties of
employment, of one or more workers;………
16. The agreement of 3rd July 2003 between the
BAJ and the MGN provides at paragraph 4.1
'By this agreement MGN formally
recognises the rights of the BAJ union and no other organisation-to negotiate
changes to pay, hours and holidays on behalf of the employees within scope'. Mr
Hendy acknowledges the document appears to be a collective agreement. He says
the provisions in the agreement unrelated to the right to negotiate are
irrelevant. The agreement spells out the items to be negotiated and the
procedure by which the negotiations are to be conducted and that is the only
way in which such negotiations can be conducted.
17.No
formal negotiations on pay, hours and holidays had commenced between BAJ and
the MGN before the CAC hearing. The CAC decision acknowledges and the parties
agree there had been consultation between the BAJ and MGN over redundancy terms
for three members of the bargaining unit, and some discussion of the terms for the
introduction of 7 day working. But no bargaining had begun about the annual pay
round nor had the mechanism for this been established (paragraph 50 CAC
decision).
18. It is the claimant’s case that
as negotiations proper had not commenced the collective bargaining agreement
was not in force in December 2003 and indeed is not in force now. There is a
stalemate. The journalists in the Sports Division, as a group, it appears, give
no support to the BAJ and give strong support to the NUJ. Mr Hendy said in argument
the agreement cannot be in force because of the journalists as a whole. He
contended that as a matter of law the CAC must be satisfied there is a real
prospect of the right to negotiate conferred by the agreement being exercised
and a real intent on the part of the parties to the agreement to do so. The
right of negotiation must also be reasonably capable of being exercised in the
reasonably near future from a certain date or the happening of a likely event.
Because an agreement is reached it does not mean it comes into force and that
had not happened with this agreement. The whole phrase 'already in force' means it is said 'implemented 'or 'already
implemented or capable of being implemented'.
19.Further
para 35 uses the phrase 'on behalf of any workers' when describing the role of the union
entitled to conduct collective bargaining. The CAC said "On behalf of can mean simply for someone’s
benefit (without any connotation of consent or authority having been given by
those on whose behalf the action is taken) and we think that, within the
context of paragraph 35, that must be its meaning."(CAC decision
paragraph 41). The contention is that, as a matter of law, the right to
negotiate must involve the workers to some degree by requiring some
support. The CAC interpretation is said
to have denied the phrase any meaning. Indeed one interpretation relied on is
that the phrase as a whole really means "on behalf of a majority of
workers" or alternatively "on behalf of a substantial i.e. more than
trivial number of workers".
20.Mr
Hendy supported his argument by invoking article 11 of the European Convention
on Human Rights as an aid to the construction of paragraph 35 of the Schedule.
He went so far as to submit that if the CAC has properly construed paragraph 35
that provision is incompatible with article 11 ECHR.
21.The
main submission on article 11 for the claimant is summarised in Mr Hendy’s
skeleton argument as follows. " The right to
freedom of association includes the right to be heard within the workplace.
This may be made manifest by a trade union's participation in a collective
bargaining process (Wilson,
see above). If a Member State
chooses to recognise the right to freedom of association (at least in part) by
introducing some legislative mechanism for recognition of trade unions within
the workplace, then it must not impair or restrict that right, save as
permitted by Art 11(2). (Which would require any such restriction to be necessary and
proportionate). If there is an alternative construction of para
35 that is permissible and would avoid the unjust consequences recognised by
the CAC in this case then the present interpretation of that provision by the
CAC cannot stand".
MGN 's case
22. The interested party
characterises the question of whether there has been recognition as one of
mixed fact and law. MGN specially notes that para 3
(6) of Schedule A1 of the 1992 Act expressly provides that the wider definition
under section 178 of that Act applies for the purposes of para
35. Indeed recognition is defined in section 178 (3) as follows:
(3) In this
act “ recognition”, in relation to a trade union,
means the recognition of the union by an employer …, to any extent, for the
purpose of collective bargaining….
23. As has been noted, collective
agreement and collective bargaining are defined in section 178 (1) as “any
agreement or arrangement made by or on behalf of one or more trade unions and
one or more employers or employers associations and relating to one or more of
the matters specified below [in section 178(2)] and “collective bargaining”
means negotiations relating to or connected with one or more of those matters”.
Hence, the MGN argues, that recognition
describes a relationship between the employer and the trade union, whereby the
employer agrees to negotiate with the trade union in relation to, e.g., terms
and conditions of employment. This is what the CAC decided and the wishes of
the workforce or the representative nature of the union are not relevant in
relation to the question whether the union is recognised. Importantly again,
when there is recognition various statutory rights follow, including, in
particular, rights for the union and its officials and members. The law is, and
has been for 30 years, that once a union is
recognised, either expressly or by implication, those statutory rights are
crystallised. If the NUJ is correct, it is argued that any court or tribunal
considering a voluntary recognition agreement would then have to consider
additional matters. Questions such as has the agreement been implemented or can
it be implemented together with the question whether the union is
representative would fall to be decided before determining whether the union
and its members and officials begin to enjoy the rights arising from
recognition.
Further it is the MGN case that
the background to para 35 is important. Parliament
did not intend the CAC to entertain inter union disputes as to which union
would be recognised. Para 35 should be interpreted
simply. If another union is already recognised then the CAC must reject the
application of a rival. The word “already” in para 35
merely refers to the fact that another union has “got there first”. The words “ in force” merely require that the rival union is
recognised at the time of the application. The words “on behalf of” require
that the recognition must be in respect of a relevant employee. Recognition in
relation to a different bargaining unit would not be effective.
24. In particular, it was
submitted on behalf of the MGN, the real question is whether the agreement or
arrangement entered into between the employer and the union - here MGN and BAJ
- conferred recognition on the BAJ rather than whether the members of the
bargaining unit had conferred recognition on the union. What mandate the BAJ
had from members of the proposed bargaining unit was therefore irrelevant. If
the NUJ is right, it was said, then, as the BAJ is not as representative as the
NUJ, the CAC should ignore the fact that MGN has agreed to recognise the BAJ.
Further there is no machinery provided within the Schedule to enable the CAC to
test the level of support for any union, which is in fact recognised
voluntarily.
25. The CAC was also right, it was
said, to reject the NUJ’s argument that the question whether an agreement is in
force depends on whether it has been implemented. All that matters is that the
CAC has to be satisfied that the relevant union is recognised at the time of
the application. The question is essentially one of fact as the CAC’s approach
shows. There was it is said a genuine recognition agreement and it came in to
force 3rd July 2003.
MGN and the BAJ had taken steps which they would not have taken subsequent to
the agreement had it not been in force. The CAC accepted the evidence did not
establish that the agreement had been abandoned, suspended or terminated. So,
say MGN, the BAJ had indeed “got in first”. It was recognised for collective
bargaining within the Sports Division of MGN on 3rd July 2003. That agreement was indeed in
force when the CAC considered the case so the NUJ application was not
admissible.
Human
Rights
26. The NUJ contends that article
11 European Convention on Human Rights can and should be used as an aid to the
construction of para 35 of Schedule A1 of the 1992
Act. The duty under section 3(1) Human Rights Act 1998 is that “So far as it is
possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with the
Convention rights”.
27. Article 11 provides:
(1)
“Everyone has the right to freedom of peaceful assembly and to 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. This article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of
the State.”
28.The CAC dealt with the Human
Rights arguments shortly. They concluded that their interpretation of para 35 does not infringe the Human Rights Act. The issue
has been further addressed in this hearing. The CAC was represented at the
hearing by Ms Dinah Rose specifically to address the issues under the Human
Rights Act. The CAC otherwise took no part in the application.
Mr Hendy contends that article 11 can and should be used as an
aid to the construction of para 35. He argued the
right to freedom of association includes the right to be heard within the work
place. This is made manifest by a trade union’s participation in the collective
bargaining process. Where a Member State, as here, has chosen to recognise the
right to freedom of association (at least in part) by introducing some
legislative mechanism for recognition of trade unions within the workplace, it
must not impair or restrict that right save as permitted by article 11 (2). The
NUJ, of course, regards the construction of para 35
as reached by the CAC as unjust. A union with a majority of workers in membership
within the bargaining unit has been denied the right to collectively bargain
because the employer has entered into a recognition agreement with an
unrepresentative union.
29. The CAC position is that para 35
construed in accordance with its ordinary meaning does not engage any right
protected by article 11; “there is no incompatibility between para 35 and article 11”. MGN agree.
30. The core submission from the NUJ is that freedom of
association is a right that vests in an individual and it is breached
(a) By precluding
the workers in the bargaining unit, on grounds of union membership, from
participating in the collective bargaining process.
(b) By permitting
an employer to select a union with which to collectively bargain, which had no
substantial support amongst (or, indeed,
was opposed by) the workers in the bargaining unit.
(c) By imposing
upon the workers in the bargaining unit a union to collectively bargain on
their behalf about which they had not been consulted (by the employer or the union or a
third party).
31. As Ms Rose put it in her skeleton argument, “in order to
succeed, the claimant must demonstrate that article 11 imposes a positive
obligation on the state to enact legislation that obliges an employer to recognise
for collective bargaining a particular union that commands the support of a
majority of workers in a bargaining group, even where the employer has chosen
to recognise a different independent trade union for that purpose”.
32. Both sides to this argument relied on “Wilson”
(see above) where the European Court of Human Rights considered the scope
of article 11 and reviewed a number of its earlier authorities. The court held,
at para 44:
“However, the court has consistently held that although
collective bargaining may be one of the ways by which trade unions may be
enabled to protect their members’ interests, it is not indispensable for the
effective enjoyment t of trade union freedom. Compulsory collective bargaining
would impose on employers an obligation to conduct negotiations with trade
unions. The Court has not yet been prepared to hold that the freedom of a trade
union to make its voice heard extends to imposing on an employer an obligation
to recognise a trade union. The union and its members must however be free, in
one way or another, to seek to persuade the employer to listen to what it has
to say on behalf of its members. In view of the sensitive character of the
social and political issues involved in achieving a proper balance between the
competing interests and the wide degree of divergence between the domestic
systems in this field, the Contracting States enjoy a wide margin of
appreciation as to how trade union freedom may be secured”.
The NUJ acknowledge that there is a margin of discretion consistent
with article 11, which permits Member States to establish a collective
bargaining structure in order to promote orderly efficient and fair industrial
relations. It argued, however, that it is outside the margin of discretion and
inconsistent with article 11 for a Member
State’s bargaining regime to permit
an unrepresentative union (as here so it is said) to gain the right to
collective bargaining over a representative union (here the NUJ).
It is clear from Wilson
that article 11 cannot be read as obliging public authorities to provide a
legal mechanism by which an employer must enter into collective bargaining with
a trade union. It is in my judgment fair to conclude, as Ms Rose does on behalf
of the CAC, that article 11 does not impose any positive obligation on a State
to grant to a union “ the right ” to conduct
collective bargaining with any particular employer.
Discussion and conclusions
33. I was referred to the White Paper on Fairness at Work
command 3968 (May 1998). The White Paper was a precursor to the legislation,
which incorporated schedule A1 into the Trade Union and Labour Relations
(Consolidation) Act 1992. When discussing collective rights and collective
arrangements involving trade unions, the White Paper makes it clear there was to
be a procedure to encourage parties to reach voluntary agreement wherever
possible. If that proved impossible a restructured CAC was to be given the
power to decide on issues such as whether a trade union has reasonable support
for seeking recognition; what is the appropriate bargaining unit; whether a
sufficient majority of employees support recognition; and the procedure to be
followed for negotiation between and employer and the trade union. At Para
4.19 it was said:
“The government intends that any trade union with a
certificate of independence from the Certification Officer should be able to
invoke the procedure, but the CAC will not deal with competing, well-founded
claims from trade unions. These must be resolved by the trade unions before the
procedure is invoked…the procedure will be as simple, clear and quick as
possible, with reasonable sanctions to ensure compliance. It is intended to
avoid disruption to existing recognition arrangements”.
The White Paper is not an aid to construction but it provides
useful background when, as here, para 35 of Schedule
A1 is being considered.
34. By section 178(3) of the 1992 Act recognition means “the
recognition of the union by an employer,…for the
purpose of collective bargaining”.
A collective agreement is by section 178(1) “any agreement
… made by or on behalf of one or more trade unions and one or more employers….”.
The CAC pointed out in para 39 of
its decision that section 178 clearly contemplates that the act of recognition
is something to which only the employer and the recognised union are parties.
The consent of the workers is not required and is certainly not provided for in
the section. As the CAC also pointed out, the definitions of “ collective agreement” and “
collective bargaining” in section 178(1) referred only to the unions and
employers or employers association as parties to collective agreements. By way
of contrast, in section 244 of the Act, “a trade dispute” is defined as “ a dispute between workers and their employer
which relates wholly or mainly to…” all
the various things set out in section 178 to which the collective agreement
applies.
I agree with the conclusion of the CAC that Parliament has
been careful to distinguish between relations between the union and the
employer for collective bargaining purposes (section 178) and the employer and
the workers so far as the workers’ rights in the workplace rights are
concerned.
35. As was also discussed in argument, Schedule A1 to the 1992
Act is lengthy and provides in detail how a trade union seeking recognition to
conduct collective bargaining must proceed where for whatever reason there has
been no voluntary agreement. If, after a request for an agreement, any
negotiations fail the union may apply to the CAC. The CAC must decide among other
matters whether the proposed bargaining unit is appropriate and whether the
union has the support of the majority of the workers in the bargaining unit.
But, as para 35 provides, if a collective agreement
is already in force then the CAC cannot proceed. The application is “not
admissible”. There is considerable detail in the Schedule as to the
procedure to be adopted by the CAC in relation to deciding whether for instance
the union concerned has a majority of members in the bargaining unit contended
for. No such provisions are made in relation to making any decision as to
whether a recognition agreement is “already in force.”
36. The
legislative context is in fact helpfully summarised at paragraph
5-15 of the decision in the Court of Appeal “R (on the application
of Kwik-Fit)(GB)Ltd) v Central Arbitration Committee
[2002] EWCA Civ
512 to which I was referred. But none of the schedule comes into play where
as here the CAC declares the application not admissible.
37.As pointed out in “Harvey”
an employer is said to “ to recognise a union when he accepts that it has
acquired a certain status within his organisation”. (N7 para
901) and, further, “ the first point is that
a union is “recognised when the employer accepts its roles or status
within his organisation”. He accepts that it has rights in the matter orto put the pointthe other way
round, it must be shown that the employer has assumed a continuing duty
towards the union” (National Union of Tailors and Garments workers v
Charles Ingram & Co Ltd) [1977] ICR 530 (Harvey N7 para
908).
38. The agreement of 3rd
July 2003 between the BAJ and MGN is clearly designed to be a
recognition agreement. MGN is accepting the BAJ’s role and status within its
organisation. The employer agrees to negotiate on various matters including pay
and gives the union rights to be informed about other matters and to represent
employees when dealing with their employer. A commonsense reading of the
agreement of the 3rd July
2003 is that it meets squarely as it was clearly intended to do,
the requirements of section 178 of the 1992 Act.
39. I have concluded that were Mr Hendy’s arguments to be
accepted something equivalent to the “reading in” of words into para 35
would be needed as the CAC itself decided.
40. Is there any basis then for
reading the reading the clear wording of Para 35 in the
way contended for by the NUJ without the assistance of the Human Rights Act?
Recognition by section 178(3) means recognition to any extent for
collective bargaining. No comprehensive or full scheme is required. The
agreement need not be in writing so can be oral or implied.
41. The phrase “already in force” was analysed by the CAC.
They rejected the NUJ’s contention that an agreement can only be in force when
it is implemented. In particular, they concluded that such an interpretation
could lead to the very disputes that were suppose to
be outlawed. At Para 46 of their determination they said
“Under the proposed interpretation, where union A, having
substantial membership among the workforce, had secured voluntary recognition
from an employer, union B, equally with substantial membership, would be able
to bring a recognition claim against the employer, without being barred by
paragraph 35, provided the recognition
agreement had not been implemented. If, by contrast, it had been implemented, paragraph 35 would
render the application by union B inadmissible. We cannot see why Parliament
should have thought it appropriate to allow the former category of inter union
dispute to come before the CAC but not the latter. The distinction
between implemented and non-implemented recognition agreements seems not to be
related to any features which make it feasible for the CAC successfully to
handle one class of inter union disputes, but not the other.”
42. I agree. The more straightforward approach is to accept
the analogy with contract law that a written agreement, as here, is binding
from the moment it is signed. Recognition agreements can be abandoned, no
doubt, or fall into disuse but that is not this case. Some activity between the
employer, MGN, and the BAJ had happened after 3rd July 2003. The most clear and obvious
interpretation is that the 3rd July agreement was indeed already in
force when the CAC considered the NUJ’s application.
Much the same reasoning applies to the interpretation of “on
behalf of” which is coupled to the phrase “any workers within the relevant
bargaining unit”. “Any” cannot mean a majority or a substantial number
as contended for by Mr Hendy. I agree with the CAC that “ on
behalf of” in the context of para 35 simply means for
someone’s benefit without any context of “ with their consent”. Further the
words “on behalf of” link the collective bargaining provided for to the
“relevant bargaining unit”.
43. I also accept the argument from MGN that para 35 does not limit collective agreements entered into
by the union and the employer to union members. The agreement relates to “any
workers” and is not limited to unionised workers. Hence in this context at
least, a union with one member or a union with a majority of members in the
bargaining unit is entitled to be voluntarily recognised. Here the signing of
the voluntary recognition agreement by an employer with an independent union
has shut out the union with a majority of members in the bargaining unit.
44. I heard considerable argument on the Human Rights Act. I
accept that a proper reading of para 35 means that a
collective bargaining agreement can be brought into force voluntarily between
an employer and a union even where the union has no significant support in the
bargaining unit. Where that has happened there is nothing in Schedule A1 of the
1992 Act that allows the CAC to require the employer to enter into another
recognition agreement with a union that does have majority support.
45. But, as Ms Rose argues, it does not then follow that the
workers in the unrecognised union are “precluded” from participating in
collective bargaining as the claimant contends. The union can seek to persuade
the employer to enter a recognition agreement and organise industrial action.
The individual workers can get involved within the workplace in the bargaining
process through contact with the recognised union. Para
35 does not stop the unrecognised union from doing all they can to achieve
recognition. But where, as in this case, there is a voluntary agreement,
Schedule A1 does not provide a mechanism to compel the employer to recognise
any unrecognised union.
46. Article 11 of course gives everyone the right to peaceful
assembly, the freedom to associate with others and the right to form and join
trade unions. The Claimant’s case is in effect that article 11, with its right
to form and join a trade union is breached, if those who have done so and who
form a substantial number of the workforce in a particular place are shut out
from the collective bargaining process because the employer has recognised and
entered into an agreement with another trade union for collective bargaining
purposes.
Para 44 of the judgment in Wilson (see above) makes it
clear that the “Court has not yet been
prepared to hold that the freedom of a trade union to make its voice
heard extends to imposing on an employer an obligation to recognise trade
union”. Hence the CAC is right in its submission in argument in this case that
article 11 does not oblige public authorities to provide any legal mechanism by
which an employer is required to enter into collective bargaining with a trade
union. Ms Rose pointed out Parliament has now chosen to require employers to
enter into collective bargaining where the conditions of (schedule A1) are
satisfied, but considers that it is not appropriate for such legal obligations
to be imposed where an employer already has a voluntary collective agreement
with a different union. There is no restriction on the freedom of unions to
represent their member’s interests, to be heard and to seek to persuade
employers to recognise them”.
47. So Schedule A1 has moved the position forward. Employers
can be required to enter into collective bargaining agreements where the
conditions of the schedule are satisfied. But that is not the case where there
is a voluntary recognition agreement (para 35). All
the majority union’s freedoms and those of the workers in that union are
preserved including the right to take industrial action.
48. The claimant argues that the right to take industrial
action as referred to in Para 54 of the CAC decision cannot be a sufficient
fulfilment of an article 11 right as it would inevitably involve union members
acting unlawfully in breach of their contracts of employment. It is pointed out
in Wilson Para 45 “the Court observes that there were other measures
available to the applicant unions by which they could further their members’
interests. In particular, domestic law conferred protection on a trade
union, which called for or supported strike action “in contemplation or
furtherance of a trade dispute”. The grant of the right to strike, while it may
be subject to regulation, represents one of the most important of the means by
which the State may secure a trade union’s freedom to protect its members’
occupational interests”. That a right to strike exists in the UK
is undeniable. Exercising that right will always mean some breach of a contract
of employment but that is not a breach of article 11.It follows that I regard para 35 as wholly compatible with article 11 of the
European Convention on Human Rights. It therefore follows that this is not a
case where a declaration of incompatibility under section 4 Human Rights Act
could be made.
49. The Claimant relied on some Canadian case law to supports
its case. Lord Bingham of Cornhill pointed out in Attorney Generals Ref No 4
of 2002 [2004] UKHL 43 at Para 33 “on a number of occasions the
House has gained valuable insights from the reasoning of Commonwealth judges
deciding issues under different Human
Rights instruments ……… Some caution is in any event called for when considering
different enactments decided under different constitutional arrangements. But, even
more important, the United Kingdom
courts must take their lead from Strasbourg”. It seems to me that Wilson
is the key case, and that the Canadian jurisprudence adds little to the
interpretation in this case.
50. In the concluding passage of its reasoned determination,
at para 55, the CAC said “ Since
the law relating to industrial disputes has not been substantially altered
since the Court’s decision [in Wilson] (and such amendments as have been
made have been in favour of workers and trade unions), we think it is still the
case that the UK does not need to rely on a statutory recognition procedure to
demonstrate its compliance with Article 11 of the European Convention on Human
Rights. If that is so we think that the particular form of statutory
recognition procedure which the UK has chosen to introduce is not subject to
scrutiny under Article 11, except to the extent it could be argued to have
worsened the position of trade unions or their members in comparison with their
position before the statutory procedure was introduced.” I accept this view
that the statutory procedure has not worsened the position of trade unions or
their members.
51. I conclude that the decision of the CAC was neither wrong
in law nor perverse. It decided correctly that the claimant’s application was
not admissible. The effect has been that a trade union with a substantial
number of members who are workers in a particular bargaining unit has been shut
out from entering into collective bargaining on their behalf by a voluntary
agreement entered into between the employer and another union with a very
limited membership. Whether this apparent lacuna, as the CAC described it,
needs to be addressed will be a matter for the industrial and Parliamentary
process not for this court. I dismiss this application.
