Article 11: Right to strike and insecure workers – Lauren Godfrey

strike2_5Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to reflect on what, if any, role human rights principles have in redressing that imbalance:

(1)    The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.

(2)    Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here.

To the casual observer it may well be surprising that the appeal courts are reluctant to apply human rights norms in the employment context (see for example LJ Elias in Turner -v- East Midlands Trains Ltd [2013] ICR 525; and compare dicta of LJ Sedley in the same appeal). After all, the Supreme Court recognised very recently in Autoclenz -v- Belcher [2011] UKSC 41 that the contract of employment is not a contract struck between parties of equal or even similar bargaining power: per Lord Clarke at paragraph 34-35. Work is a significant aspect of most people’s human experience.

The recent Article 11 Case RMT -v- UK and the predicament of workers engaged under zero hour contracts provide an opportunity to consider whether human rights principles are being adequately observed in the UK employment context.

The RMT Case in the ECHR

The RMT union (led at the time by Bob Crow) brought three complaints to the ECHR “that its ability to protect its members’ interests was subject to excessive statutory restriction, in violation of its right to freedom of association.” (see paragraph 4)

The RMT challenged two aspects of the UK statutory regulation:

(1)    The ballot notification provisions which require a union to notify the employer subject of proposed strike action of certain matters including relevantly the categories of workers to be called upon to strike, the number workers within each category, and the place at which the workers were engaged by the employer;

(2)    The prohibition on secondary boycotts – sometimes referred to as ‘sympathy’ strikes – where union members employed by one employer either also go on strike or refuse to supply or otherwise deal with another employer where fellow union members work and are on strike.

In support of the application, the RMT put forward two specific factual situations addressing the two respective challenges to UK law:

(1)    The EDF situation (paras 8-17) – The RMT had notified EDF that ‘technicians’ were going on strike. EDF replied that they did not recognise the term technician as they used more precise categories of workers such as fitters, joiners, test room inspectors, day testers and so on: see para 9; and as such contended the notice was defective and noncompliant with the statutory requirements. The RMT holding no more detailed information proceeded to ballot its members and EDF applied to the High Court for an injunction. EDF was duly granted an injunction by Blake J who rejected the RMT’s argument that the UK notification requirements infringed Article 11 applying the Court of Appeal decision in Metrobus -v- Unite the union [2009] EWCA Civ 829. The RMT then surveyed its members and provided more detailed information to EDF with a view to calling a second strike. However, EDF then improved its offer and the strike was avoided.

(2)    The Hydrex situation (paras 14-17) – Fastline Ltd, one of a number of limited companies which were subsidiaries of Jarvis plc a company operating in the rail maintenance industry, transferred some of its workforce (some of whom were members of the RMT) to a company called Hydrex. Two years post transfer, Hydrex proposed to cut these workers salaries by 36 – 40 per cent, which was opposed by the RMT. The RMT contended that other members working for different employers but within the same ‘Jarvis’ group of companies would have been prepared to strike in support of the Hydrex workers if such action attracted immunity from suit. In fact, Hydrex workers took strike action, which resulted in an improved offer from Hydrex management. The union then recommended acceptance but which the workers rejected. Hydrex imposed the changes despite the rejection by the workforce. By the time of the hearing before the ECHR both Fastline Ltd and Hydrex had ceased to operate in the industry perhaps serving to underline the lack of security in the industry.

Discussion of the EDF situation:

On the EDF facts, the ECHR found that the complaint was inadmissible because there had been no prima facie breach of Article 11 on the facts. The RMT members ultimately were able to strike so Article 11 was not infringed. This conclusion frankly was surprising since the first principle of seeking and obtaining an injunction is that timing is important; the party who obtains an injunction will almost always obtain a tactical advantage; that is the essence of an injunction.   EDF bought time with their injunction and the RMT lost a tactical advantage, it is surprising that this was not sufficient to invoke the ECHR’s jurisdiction.

As ECHR did not find the application based on the EDF facts was admissible so that the decision in Metrobus -v- Unite the Union [2009] EWCA Civ 829 or whether UK notification requirements are compliant with Article 11 remains unresolved at ECHR level.

Further, Blake J’s finding that the union needed to collate information in order to comply does was expressly doubted by Elias LJ in Serco -v- RMT [2011] EWCA Civ 226(CA) (paragraphs 72-75)holding that it was not necessary for a union to audit what information it holds much less survey for additional information.

Equally, it might be noted that the RMT should have brought a more meaningful case to test the UK Government’s compliance with Article 11 and it must be observed that the question of whether an Article 11 argument will serve to modify or challenge the statutory strike notification requirements in the UK remains for another better formulated case.

It was accepted by the ECHR that the UK Government was subject to voluntary treaties and codes through the International Labour Organisation and the Europe Social Charter, which recommended that such secondary or sympathy action should be protected by immunity from suit. Both the ILO and the ESC had been critical of the UK government in this regard. It was also apparent that the UK was one of only a very few countries in the developed world that had an unqualified ban on such strikes; even Turkey had removed a ban from its constitution as part of preparations for EU membership.

The ECHR found that as Article 11, enshrining a freedom to association, is a qualified right, the UK Government enjoys a wide margin of appreciated in the implementation of the right in domestic law including rules for obtaining immunity from suit for strikes.

The RMT coached its argument in terms of the rights of union members to organise across industry and thereby to influence standards and minimum conditions on which contractors vying for business in the industry employ staff. Further, fundamental to the RMT’s argument was the notion that union members in a strong bargaining position should be able to use their industrial strength to assist those in a weaker position.

Employers will no doubt welcome the decision particularly those in heavily unionised industries who would fear being drawn into the disputes of other employers in respect of workplaces over which they may have little or no influence or control.

It might be said that the RMT in looking to secondary action may be reaching back to a long since past era of union militancy and disruption.   It is hardly surprising that the Government would oppose such a move whether at the ECHR or elsewhere. After all, the Government has a long history of inaction on secondary boycott actions despite ILO and ESC pressure.

However, employees working in ever increasingly complex corporate structures with ever decreasing job security might ask how they are to protect their position if not through union co-operation and influence.

Zero hour contracts

One area where union members in relatively strong positions in terms of job security have sought through their union to support members in a weaker position is in the area of zero hour contracts: see the campaigns by UCU and Unison for example. These campaigns have been fought on public perception rather than secondary boycott.

The idea behind a zero hour contract is that there is an agreement for services between an entity which may intermittently engage a worker and that worker but no obligation to provide any level of work under that agreement; that is zero or no hours are guaranteed to the worker. The agreement only regulates the work once there is a need for the work expressed by the entity engaging the worker: see the ACAS guide for more information.

Mutuality of obligation being the irreducible minimum of the employment contract and ‘employment’ being a requisite to many statutory legal protections (including unfair dismissal), the arrangement has more advantages to an employer than simply flexibility; it provides for an effective contracting out of employment rights.

It is perhaps ironic that the employment legislation which zero hours contracts avoid was developed over an extended period of time to redress (in part) the practice of ‘gate hiring’ where each day workers would gather to be hired or re-hired for that day’s work with no guarantee for the next day. The modern practice of zero hour contracts is simply a modern version of the practice of gate where instance communications such as email and text messages replace the gate as the point of hire.

While Westminster may be reluctant to give too much credence to a Scottish Committee addressing employment issues, there are many serious and damaging criticisms of zero hour contracts including:

–        Zero hour contract workers receive 20 per cent less pay than full time equivalents with no power under part-time working regulations to challenge this position;

–        5 per cent of zero hour workers are not paid the minimum wage;

–        40 per cent of zero hour workers receive no advance notification of work engagements

–        6 per cent of zero hour workers attend only to find there is no work to do without pay (often having engaged child care or spent money on travelling to the place of work)

–        There is evidence that zero hours contract workers feel less able to speak out about health and safety concerns in the workplace.

–        Job Centres are pressing job seekers to take zero hours contracts despite the lack of certainty over income.

Conclusions

It is hard to avoid the conclusion that the questions posed to the ECHR by the RMT in RMT -v- UK (Application No 31045/10): were not the right questions to test the proper reach and application of Article 11 in protecting either primary or secondary strike actions.

As union membership continues to decline, the government has imposed full cost recovery level fees on claimants seeking to vindicate their rights against employers and wages in real terms for the lowest paid stagnate, the question becomes how do the most vulnerable in the work place redress the differential in bargaining power with their employer? Union boycotts and pickets and other such freedoms guaranteed by Article 11 may seem old fashioned but equally there appear to be very few other answers for those in insecure employment. Where workers cannot even enforce minimum rates of pay, further more statutory regulation is unlikely to be the answer on its own. Freedom of association guaranteed by Article 11 is designed to provide options for self-help for those seeking to redress power imbalances but this is an empty guarantee without organs of civil society to give voice to the rights so protected.

 Lauren Godfrey, 1 Crown Office Row

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