Contact: Nick Huffer; Clarkslegal LLP (Reading, England)
In a landmark case brought by the RMT union against the UK in the European Court of Human Rights, the Court has ruled that the UK's laws banning secondary industrial action do not violate the right to freedom of association under the European Convention on Human Rights. RMT v UK. The judgment is not final as the decision could be referred to the Court's Grand Chamber.
It seems unlikely that the substance of the decision will change but it must be understood that whilst this bold attempt by the late Bob Crow to fundamentally change UK industrial action law has ultimately failed, the Court:
- Has established that UK law does interfere with the human rights of trade union members, albeit it does not violate them
- Made it clear that this case was decided on its particular facts.
That does leave the door open to a fresh challenge in the ECHR at some later date.
The distinction between primary and secondary industrial action was first introduced in 1980 under the first Thatcher Government, one of its first measures in its programme of trade union law reform. Primary industrial action is industrial action taken by employees against their employer, with whom they are in dispute. Secondary industrial action is industrial action against a company other than the employer in question. Typically, the employees will have no dispute with the company other than the fact that it has commercial links with their employer. Hence, this tends to be industrial action taken against the employer's suppliers or customers. This could involve picketing of a customer's site but could extend, as it does in other countries, to strike action taken by the customer's employees in sympathy with the "primary" industrial action. In its extreme form, it can lead to a whole scale public sector or "general strike".
Secondary industrial action was first outlawed in 1927 in aftermath of the General Strike. It was then made lawful again by the post-war Labour Government in 1947. It became a common feature of the industrial relations turmoil of the 1970s before restrictions were imposed by the Thatcher Government in 1980, with a complete ban returning in 1990. The Labour Party has repeatedly made it clear that it has no intention of lifting the ban, signalling a political consensus on the issue, something the ECHR seems to have taken into account in its judgment this week.
The case in question arose after 20 rail maintenance workers transferred under the TUPE Regulations from a Jarvis Group company to Hydrex in August 2007. In March 2009 Hydrex announced that it wished to reduce the workers' pay by up to 40%. The RMT organised strike action against Hydrex but the action did not succeed, the union having to acknowledge the weakness of its position given the small number of the employees involved. However, it maintained that its large membership within the Jarvis Goup was such that Jarvis employees were willing to take action in support of the RMT members at Hydrex.
The unanimous decision of the Court was that there was no breach of Article 11 of the Convention, which guarantees the right to freedom of peaceful assembly and of association with others. This is the first time that the European Court of Human Rights has had to address the question of whether the right to secondary action falls within the scope of Article 11. The Court ruled that the union could rely on Article 11. Importantly, it found that secondary action was protected under the relevant International Labour Organisation Convention, part of the United Nations, and also the European Social Charter. The Court found that it should recognise such international standards in its interpretation of Article 11 of the European Convention i.e. they were persuasive. Further, and as regards the situation in other contracting states, the Court also found it persuasive that many of them had a long-established practice of accepting secondary strikes as a lawful form of trade union action.
Therefore the Court accepted that the statutory ban on secondary action had interfered with the right to freedom of association. However, it was satisfied that the ban was justified in that it had pursued the legitimate aim of protecting the rights and freedoms of others, which included not only the employer directly involved in the industrial dispute but also the wider interests of the domestic economy and the public potentially affected by the disruption of secondary industrial action, which could be on a scale greater than primary strike action.
The Court noted the acknowledgement of the ILO Committee of Experts that its opinions are not binding on the ILO or outside the ILO unless an international instrument expressly establishes them as such. It is accepted that competence to interpret ILO Conventions is vested in the International Court of Justice, the judicial body of the United Nations. That is not the role of the ECHR.
Clarkslegal supports and attends on behalf of the CBI at the ILO annual conference, where employers' federations do not accept the Committee of Expert's interpretation of ILO Conventions is correct or valid or that ILO Conventions guarantee a right to strike.
The majority of the ECHR also found that it had no competence to assess whether or not UK law complied with the ILO Conventions or the European Social Charter, so called "soft law", having persuasive effect only. It's jurisdiction was limited to the European Convention on Human Rights. At the same time the Court stressed that it was not questioning the analysis of the ILO Committee of Experts or the ECSR as to their view of the appropriate international standards. It was just they were not sufficiently persuasive when it came to look at the negative impact on RMT members in the case at hand. The Court noted the RMT's argument that a total ban on secondary action could lead to abuse by employers. However, it was felt that the negative impact of the law on RMT members was not abusive on the facts of the case and the UK legislation was within the margin of appreciation that the Convention allowed.
The Court noted that the UK has, together with the Netherlands, Austria and Luxembourg, the most restrictive regime in respect of secondary industrial action amongst European contracting states. However, that was insufficient to put the UK outside the legitimate margin of appreciation.
As regards a separate case brought by the union, the ECHR dismissed as inadmissible its challenge to the UK's provisions on strike ballot notice provisions, noting that the RMT had complied with the UK's requirements and led a successful strike despite the procedural requirements of UK law. There was no case that the union's rights had been interfered with.
