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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Independent Workers Union of Great Britain, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy & Ors  EWCA Civ 260 (26 February 2021)
Cite as:  ICR 729,  WLR(D) 129,  EWCA Civ 260
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE HON MR JUSTICE SUPPERSTONE
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division))
LORD JUSTICE BEAN
LORD JUSTICE PHILLIPS
| THE QUEEN on the application of the
INDEPENDENT WORKERS UNION OF GREAT BRITAIN
|- and –
SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY AND OTHERS
Daniel Stilitz QC and Joseph Barrett (instructed by Government Legal Department) for the Secretary of State (the Third Interested Party in the High Court)
The Central Arbitration Committee, Cordant Security Limited and the University of London (the Defendant, First Interested Party and Second Interested Party in the High Court) did not appear and were not represented.
Hearing date: 26 November 2020
Crown Copyright ©
Lord Justice Bean :
Is the appeal academic?
The factual background
The Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act")
"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule."
"(1) In this Act 'worker' means an individual who works, or normally works or seeks to work—
(a) under a contract of employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or
(c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above.
(2) In this Act 'employer', in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work."
"6. The purpose of the legislation is to enable a trade union which is refused recognition by an employer to use the legal process to require the employer to enter into collective bargaining. Recognition means that the union should be "entitled to conduct collective bargaining on behalf of a group or workers" (paragraph 1). Collective bargaining, in turn, is defined as "negotiations relating to pay, hours and holidays", unless the parties agree to a broader range of matters (paragraph 3).
7. The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation. For example, it must be in writing, be made by an independent trade union and identify the proposed bargaining unit. In addition, the employer (together with any associated employer) must employ at least 21 workers (paragraphs 4 to 9).
8. The employer is given 10 working days to agree the request. If the request is accepted that is the end of the matter. If it is rejected or there is no response, then the union applies for recognition. This is made pursuant to paragraph 11 (2), an important provision in this case which I set out below. (There is a variation of the procedure where the employer agrees to negotiate about the proposed recognition but those negotiations fail to bear fruit).
9. The second stage is the acceptance or otherwise of the application. The CAC must decide two questions in order to determine whether the application can be accepted. First, it must be satisfied that the original request was valid in the way I have described above. Second, it must decide whether it is admissible within the meaning of paragraphs 33 to 42 (paragraph 15). The most important criterion of admissibility is that members of the union must constitute at least 10 per cent of the workers in the proposed bargaining unit, and that the CAC must be satisfied that a majority of the workers would be likely to favour recognition (paragraph 36).
10. The third stage is the determination of the bargaining unit. …… In accordance with the general philosophy that voluntarism is preferable to legal regulation, the CAC must try to help the parties reach agreement as to the relevant bargaining unit. But if that is unsuccessful, then the CAC itself must determine the bargaining unit (paragraph 19 (2)). Paragraphs 19 (3) and (4) set out criteria which must be taken into account in the course of that process……
11. Once the CAC has determined the bargaining unit, the fourth stage depends on the outcome of that decision. If the bargaining unit determined is the same as that proposed by the union, then a ballot may have to be held. In general, a ballot will not be required if the union has a majority of the workers in the bargaining unit as members (although even then a ballot may be required if, broadly, there are doubts as to whether the majority does want the union to be recognised, or if good industrial relations makes this desirable) (paragraph 22). Otherwise a ballot will be necessary. Where no ballot is required, the CAC simply declares that the union is recognised and entitled to conduct collective bargaining.
12. The position is more complex if the stipulated bargaining unit is not that proposed by the union. The CAC must then decide whether the application is invalid within the meaning of paragraphs 43 to 50 (paragraph 20). The most significant feature here is that the CAC must be satisfied in respect of the stipulated bargaining unit that the 10 per cent criterion and that relating to the likelihood of majority support are met. If not, the application will at that stage be treated as invalid. If it is valid, then the issue as to whether a ballot is required is determined in the same manner as I have outlined above.
13. Where a ballot is required it will be carried out by a qualified independent person appointed by the CAC. The employer must co-operate in the process and permit the union to have access to the workers. The CAC must make a declaration of recognition if the result is favourable; this requires both that those who vote in favour constitute a majority of those voting; and that they constitute at least 40 per cent of the workers constituting the bargaining unit (paragraph 29 (2)).
14. If the vote is against then the CAC must declare that the union is not entitled to recognition. Essentially it cannot re-apply for recognition in respect of that group of workers (or a substantially similar group) for three years (paragraph 40).
15. The consequences of the declaration in favour of recognition are that the employer is obliged to recognise the union in respect of the relevant bargaining unit. In the absence of agreement between the parties, the CAC will be required to stipulate the method by which collective bargaining can be carried out (paragraphs 30 and 31). The ultimate, and only, sanction for failure to comply is specific performance (paragraph 31 (6))."
"(2)The CAC must take these matters into account—
(a) the need for the unit to be compatible with effective management;
(b) the matters listed in sub-paragraph (3), so far as they do not conflict with that need.
(3)The matters are—
(a) the views of the employer and of the union (or unions);
(b) existing national and local bargaining arrangements;
(c) the desirability of avoiding small fragmented bargaining units within an undertaking;
(d) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant;
(e) the location of workers."
"(1) An application under paragraph 11 or 12 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……."
"The application is not admissible unless—
(a) the unions show that they would cooperate with each other in a manner likely to secure and maintain stable and effective collective bargaining arrangements, and
(b) the unions show that, if the employer wishes, they will enter into arrangements under which collective bargaining is conducted by the unions acting together on behalf of the workers constituting the relevant bargaining unit."
"9. The changes implemented by way of Schedule A1 to the 1992 Act were envisaged to achieve the following policy objectives, among others:
(a) the encouragement of voluntary arrangements for collective bargaining, which were to be given primacy;
(b) the avoidance of competing and overlapping collective bargaining arrangements, and 'turf wars' between rival unions;
(c) the encouragement of stability and continuity in collective bargaining arrangements;
(d) the avoidance of small, fragmented bargaining units; and
(e) the grant of greater rights to independent trade unions, as opposed to non-independent trade unions."
Article 11 of the European Convention on Human Rights ("ECHR")
"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…"
Grounds of challenge
The CAC Decision on Article 11 ECHR
"20. The Panel recognises that paragraph 35 [of Schedule A1] must be read and given effect in a way which is compatible with Article 11. We also recognise that Article 11 includes the right to engage in collective bargaining (Demir v Turkey  IRLR 766). However the wording of paragraph 35 is clear and, in the Panel's view, it is not possible to read and give effect to it in a manner which would enable the Union to seek recognition in the face of the existing recognition agreement with UNISON. Furthermore, such an approach would run counter to the CAC's general duty under paragraph 171 to have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, since it would upset existing collective bargaining arrangements.
21. The Panel recognises that the Union may wish to contend that paragraph 35 is incompatible with Article 11. However, the CAC has no power to make any such declaration. That is a matter for the High Court…
23. The Panel is satisfied that, for the purposes of paragraph 35 of the Schedule, there is in force a collective agreement under which an independent trade union is recognised by the Employer as entitled to conduct collective bargaining on behalf of workers falling within the Union's proposed bargaining unit. Accordingly, by virtue of paragraph 35, the Panel finds the Union's application to the CAC is not admissible."
The judgment of Supperstone J
"In my judgment there has been no interference with Article 11 in the present case. The Union is free to seek voluntary collective bargaining arrangements with the University. I agree with Mr Stilitz that is sufficient to ensure compliance with the right to bargain collectively under Article 11.
However, if contrary to my view there has been interference with Article 11, such interference must be justified in accordance with the requirements of Article 11(2).
Mr Stilitz and Mr Christopher Jeans QC for the University submit that Schedule A1 sets out a comprehensive scheme for the recognition of trade unions which seeks to balance the competing rights and interests of employers, trade unions and workers. Mr Stilitz advances three reasons in particular, as to why paragraph 35 is justified. First, in precluding an application for compulsory recognition when there is already a voluntary recognition agreement in place, it furthers the important aim of avoiding a multiplicity of competing collective bargaining arrangements with different unions in respect of one bargaining unit. As such, as the CAC observed, it is conducive to efficient and effective collective bargaining between trade unions, their members and employers. Second, it furthers the aim of encouraging the formation and maintenance of voluntary collective bargaining arrangements wherever possible. Such voluntary arrangements are in general desirable, in giving effect to the rights and freedoms of employers, unions and their members freely to enter into bargaining arrangements of their choosing, and in avoiding contentious recognition proceedings where consensual arrangements have been agreed. Third, it furthers the aim of giving primacy and additional protection to bargaining arrangements entered into between an employer and an independent trade union, which will be likely to be more robust in serving its members' interests in collective bargaining than a union which lacks independence.
Mr Stilitz points out that only approximately 70 of the workers employed by Cordant to work at the University sites would fall within the Union's proposed bargaining unit. It follows that the bargaining unit proposed by the Union would have represented a very small sub-set of workers employed at the University sites and of Cordant's workforce. Moreover, under their contracts with Cordant, the workers currently allocated to the University sites may be assigned to work for any other of Cordant's clients.
I agree with Mr Stilitz that the manner in which Schedule A1 has operated in the present case is consistent with the principles underlying Article 11 that the voluntary recognition agreement Cordant entered into with UNISON, now transferred to the University, should be protected by the scheme of Schedule A1. Were the Union able to obtain compulsory recognition for collective bargaining purposes that would potentially adversely affect the rights and freedoms of workers within the proposed bargaining unit who are or wish to become members of UNISON and/or who wish to continue to be represented by UNISON for collective bargaining purposes; and those of the employer, which wishes to conduct collective bargaining with UNISON, and UNISON, which has in place a collective bargaining agreement with the University. The Union remains free to seek to persuade Cordant to enter into a voluntary collective bargaining arrangement with it; and nothing in Schedule A1 prevents the University from terminating its voluntary arrangement with UNISON and entering into a new one with the Union."
The parties' submissions in this court
Demir and Baykara v Turkey
"…..lawful restrictions may be imposed on the exercise of trade union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining in such cases whether a "necessity" – and therefore a "pressing social need" – within the meaning of Article 11 § 2 exists, States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts…".
"140. The development of the Court's case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union's collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström v. Sweden, 6 February 1976, § 36, Series A no. 21).
141. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court's view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström, cited above, § 36).
142. As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers' Union, cited above, § 39). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlström, cited above, § 34).
143. Subsequently, in the case of Wilson v National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members' interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson v National Union of Journalists and others, cited above, § 44).
144. As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court's case-law.
145. From the Court's case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tüm Haber Sen and Çinar, cited above), the prohibition of closed-shop agreements (see, for example, Sørensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson v National Union of Journalists and others, cited above, § 44).
146. This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights….."
"153. In the light of these developments, the Court considers that its case law to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 (Swedish Engine Drivers' Union, cited above, § 39, and Schmidt and Dahlström, cited above, § 34) should be reconsidered, so as to take account of the perceptible evolution in such matters, in both international law and domestic legal systems. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others, cited above, § 56).
154. Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the "right to form and to join trade unions for the protection of [one's] interests" set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any "lawful restrictions" that may have to be imposed on "members of the administration of the State" within the meaning of Article 11 § 2 – a category to which the applicants in the present case do not, however, belong (see paragraph 108 above)."
Strasbourg decisions since Demir
"130. The Court observes at the outset, having regard to developments in international labour law, that trade union freedom is an essential element of social dialogue between workers and employers, and hence an important tool in achieving social justice and harmony.
131. It further reiterates that Article 11 of the Convention presents trade union freedom as a special aspect of freedom of association and that, although the essential object of that Article is to protect the individual against arbitrary interference by public authorities with the exercise of the rights it protects, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 109 and 110, ECHR 2008).
132. The boundaries between the State's positive and negative obligations under Article 11 of the Convention do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the State or in terms of interference by the public authorities which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole.
133. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high 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 and protection of the occupational interests of union members may be secured (see Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006-I).
134. Article 11 of the Convention affords members of a trade union the right for their union to be heard with a view to protecting their interests, but does not guarantee them any particular treatment by the State. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests (see National Union of Belgian Police v. Belgium, 27 October 1975, §§ 38 and 39, Series A no. 19, and Swedish Engine Drivers' Union v. Sweden, 6 February 1976, §§ 39-40, Series A no. 20).
135. Through its case-law, the Court has built up a non-exhaustive list of the constituent elements of the right to organise, including the right to form or join a trade union, the prohibition of closed-shop agreements, and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members. It recently held, having regard to developments in labour relations, that the right to bargain collectively with the employer had in principle, except in very specific cases, become one of the essential elements of the right to form and join trade unions for the protection of one's interests (see Demir and Baykara, cited above, §§ 145 and 154)."
"86. In previous trade union cases, the Court has stated that regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. Since achieving a proper balance between the interests of labour and management involves sensitive social and political issues, the Contracting States must be afforded a margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members may be secured. In its most recent restatement of this point, and referring to the high degree of divergence it observed between the domestic systems in this field, the Grand Chamber, considered that the margin should be a wide one (Sindicatul "Pastorul cel Bun", cited above, §133). The applicant relied heavily on the Demir and Baykara judgment, in which the Court considered that the respondent State should be allowed only a limited margin (see §119 of the judgment). The Court would point out, however, that the passage in question appears in the part of the judgment examining a very far-reaching interference with freedom of association, one that intruded into its inner core, namely the dissolution of a trade union. It is not to be understood as narrowing decisively and definitively the domestic authorities' margin of appreciation in relation to regulating, through normal democratic processes, the exercise of trade union freedom within the social and economic framework of the country concerned. The breadth of margin will still depend on the factors that the Court in its case-law has identified as relevant, including the nature and extent of the restriction on the trade union right at issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the apposite international instruments (Demir and Baykara, §85)."
87. If a legislative restriction strikes at the core of trade union activity, a lesser margin of appreciation is to be recognised to the national legislature and more is required to justify the proportionality of the resultant interference, in the general interest, with the exercise of trade union freedom. Conversely, if it is not the core but a secondary or accessory aspect of trade union activity that is affected, the margin is wider and the interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade union freedom are concerned.
99. The domestic authorities' power of appreciation is not unlimited, however, but goes hand in hand with European supervision, it being the Court's task to give a final ruling on whether a particular restriction is reconcilable with freedom of association as protected by Article 11 (Vörður Ólafsson v. Iceland, no. 20161/06, §76, ECHR 2010). The Government have argued that the "pressing social need" for maintaining the statutory ban on secondary strikes is to shield the domestic economy from the disruptive effects of such industrial action, which, if permitted, would pose a risk to the country's economic recovery. In the sphere of social and economic policy, which must be taken to include a country's industrial relations policy, the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation" (Carson and Others v. the United Kingdom [GC], no. 42184/05, §61, ECHR 2010). Moreover, the Court has recognised the "special weight" to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (see in the context of Article 10 of the Convention the case MGN Limited v. the United Kingdom, no. 39401/04, § 200, 18 January 2011, referring in turn to Hatton and Others v. the United Kingdom [GC], no. 36022/97, §97, ECHR 2003-VIII, where the Court adverted to the "direct democratic legitimation" that the legislature enjoys). The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11."
"54. According to the Court's case-law, the right of association in the trade union context has a number of essential elements. These include the right to form and join a trade union, the prohibition of closed-shop agreements, the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members and, in principle, the right to bargain collectively with the employer (see Demir and Baykara, cited above, §§ 145 and 154, and the further references cited there). As regards the latter, it should be understood that States remain free to organise their systems so as to grant special status to representative trade unions if appropriate (see Demir and Baykara, cited above, § 154).
55. To be considered necessary in a democratic society, it must be shown that an interference with a right protected by Article 11 corresponded to a "pressing social need", that the reasons given by the national authorities to justify it were relevant and sufficient and that the interference was proportionate to the legitimate aim pursued (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 83, ECHR 2014). In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the starting point is that Contracting States enjoy a wide margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members are secured (see Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006-I; and Sindicatul "Pastorul cel Bun", cited above, § 133). However, in some circumstances, that margin may be reduced (see Sørensen and Rasmussen, cited above, § 58). The Court has recently explained that the breadth of the margin of appreciation depends on, among other things, the nature and extent of the restriction of the trade union right at issue, the object pursued by the contested restriction, the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right and the degree of common ground between member States of the Council of Europe or any international consensus reflected in the apposite international instruments (see National Union of Rail, Maritime and Transport Workers, cited above, §§ 86-87). As to the latter factor, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned; it is sufficient that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see Demir and Baykara, cited above, §§ 67-86).
56. Although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights it protects, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights. The boundaries between the State's positive and negative obligations do not lend themselves to precise definition but the applicable principles are similar. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see Sindicatul "Pastorul cel Bun", cited above, §§ 131-132).
59. The applicant has argued that the abolition of the AWB amounted to an interference with its right to engage in collective bargaining, an essential element of the freedom of association accorded to trade unions. The Court is not persuaded by this argument. In Demir and Baykara, cited above, the Court found an interference with the applicants' trade-union freedom as a result of the absence of legislation necessary to give effect to the provisions of international labour conventions ratified by Turkey and a court judgment annulling the voluntary collective agreement entered into by the applicants on account of that absence. By contrast, in the present case the United Kingdom does not restrict employers and trade unions from entering into voluntary collective agreements. Legislation, in the form of section 179 in particular of the 1992 Act, is in place to govern the enforceability of collective agreements (see paragraph 26 above). Even where the conditions in section 179 are not satisfied, a collective agreement may nonetheless be enforceable in respect of a particular individual where he succeeds in showing that its terms have become incorporated into his employment contract (see paragraph 27 above). Thus the applicant is not prevented from exercising its right to engage in collective bargaining and the facts of the case are far removed from those at issue in Demir and Baykara.
60. The Court is accordingly of the view that the applicant's complaint should be viewed from the perspective of the respondent State's positive obligations, and in particular whether the respondent State is obliged to have in place a mandatory, statutory forum for collective bargaining in the agricultural sector in order to comply with its Article 11 obligations. The applicant argued that the margin of appreciation was a limited one, relying on Demir and Baykara, cited above, § 119 (see paragraph 48 above). However, as the Court explained in National Union of Rail, Maritime and Transport Workers, cited above, § 86, the Court in that case was examining a very far-reaching interference with freedom of association. In the present case, by contrast, the question concerns the extent of the State's positive obligation in the area of collective bargaining. As the Court has already noted (see paragraph 55), the social and political issues involved in achieving a proper balance between the interests of labour and management are of a sensitive nature. The starting point is, therefore, that the United Kingdom enjoys a wide margin of appreciation in determining whether a fair balance has been struck between the protection of the public interest in the abolition of the AWB and the applicant's competing rights under Article 11 of the Convention."
After referring to European and international instruments, including those of the International Labour Organisation, the Court continued:
"65. It is significant that, as noted above (see paragraph 59), the applicant is not prevented from engaging in collective bargaining. The circumstances in which collective agreements are deemed to be legally enforceable in the United Kingdom are set out in section 179 of the 1992 Act (see paragraph 26 above). The conditions essentially require parties to confirm their intent to be bound by the collective agreement and stipulate that the agreement be reduced to writing. These conditions do not appear to be unreasonable or unduly restrictive. Furthermore, it is possible under English law for the terms of a collective agreement which is not, itself, legally enforceable to be incorporated into an individual employment contract and thus become indirectly enforceable (see paragraph 27 above). Moreover, there are circumstances, set out in the 1992 Act, whereby a union has the right to be entitled to conduct collective bargaining on behalf of a group of workers (see paragraph 28 above). While, as the applicant pointed out, the legislation is of limited assistance in the agricultural sector given the dispersal of workers among employers which renders the provision inapplicable in most cases ……., it nonetheless represents a measure intended to encourage and promote collective bargaining across industry in general. In the absence of any information in the case-file as to the reasons for the applicability restrictions in the 1992 Act, it cannot be assumed that they are unjustified or otherwise unsuitable. Finally, even accepting the applicant's submission that voluntary collective bargaining in the agricultural sector is virtually non-existent and impractical, this is not sufficient to lead to the conclusion that a mandatory mechanism should be recognised as a positive obligation. The applicant remains free to take steps to protect the operational interests of its members by collective action, including collective bargaining, by engaging in negotiations to seek to persuade employers and employees to reach collective agreements and it has the right to be heard. As noted above (see paragraphs 61-63), the European and international instruments to which the applicant referred, as they currently stand, do not support its view that a State's positive obligations under Article 11 extend to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector.
66. Bearing in mind the wide margin of appreciation in this area, the Court is not satisfied that, in deciding to abolish the AWB, the respondent Government failed to observe the positive obligations incumbent on them under Article 11 of the Convention. It cannot be said that the United Kingdom Parliament lacked relevant and sufficient reasons for enacting the contested legislation or that the abolition of the AWB failed to strike a fair balance between the competing interests at stake. No violation of Article 11 is disclosed and the application must be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention."
Decisions of this court
"45. The structure of that reasoning is not entirely explicit, but it seems to break down into three elements (the second and third being introduced by the words "moreover" and "furthermore"), namely:
(1) that the UK has an effective system for giving effect to the results of voluntary collective bargaining;
(2) that the UK has a machinery under the 1992 Act for imposing compulsory collective bargaining, and that, although the minimum numbers threshold means that that machinery is not in practice available to agricultural workers, there was no reason to believe that that restriction was unjustifiable;
(3) that the union retained the right to advance its members' interests because it had the "right to be heard" – this harks back to the language of the Swedish Engine Drivers and Wilson cases (though these are not explicitly cited) – and that the international instruments did not support the view that "a state's positive obligations under Article 11 extend to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector".
46. At first sight the third of those points reads like a re-affirmation of the position established by the pre-Demir authorities and would support a reading of Demir which limited its effect to cases of positive interference by the state with voluntary collective bargaining arrangements. I do not however think that that is correct. If that had been the Court's understanding, the multi-factorial approach taken in para. 65 would have been unnecessary: the third point would have been conclusive by itself. There would have been no need for a reference to the UK's margin of appreciation nor to the striking of a fair balance. Nor would there have been any need, in relation to the second factor, to raise the question whether the restrictions which prevented the union being able to access the statutory machinery in the agricultural sector were justifiable. Indeed arguably the conclusion at the end of para. 58 that the complaint "may be said to fall within the scope of article 11", which is the gateway to the remainder of the Court's reasoning, would be falsified. It is necessary to note the three final words of the conclusion in para. 66 – "for agricultural workers": given the broader context to which I have referred, I think they must be read as equivalent to "in the circumstances of the present case".
47. In my view, therefore, the reasoning in the Unite case acknowledges the possibility that the absence or inadequacy of a statutory mechanism for compulsory collective bargaining might in particular circumstances give rise to a breach of article 11. Such a reading is consistent with the logic of the reasoning in Demir itself, as discussed at para. 38 above. It is fair to say that various observations by the Court, and indeed the outcome of the case itself, tend to suggest that complaints based on the denial of a right to compel an employer to engage in collective bargaining may face an uphill struggle; but the point at this stage is simply that the attempt is not excluded in limine."
"53. He says that all that the PDAU is doing is seeking entry into the Schedule A1 procedure, but that is a spurious distinction. The PDAU's purpose in entering the procedure is to obtain the outcome for which it provides, namely a decision obliging Boots to negotiate with it. Article 11 cannot give it a right to enter the procedure unless it also confers a right (assuming the prescribed conditions are satisfied) to the outcome. So it is necessary to face up to the Hohfeldian question. As to that, I cannot understand in what sense the union could be said to have a right to negotiate with the employer unless the employer were under an obligation to negotiate with it; and that was indeed Mr Hendy's submission albeit that he said that the question does not arise. However, all this is a side-issue. The real question is whether article 11 does indeed impose such a right, and its correlative obligation, in the present case.
DISCUSSION AND CONCLUSION ON THE SCOPE OF ARTICLE 11
54. My conclusions on this issue are largely determined by what I have already said about the effect of the Strasbourg authorities. It follows from the recognition by the Court in Demir that "the right to bargain collectively with the employer" is an "essential element" of the rights protected by article 11 that a complaint that domestic law does not accord such a right in a particular case will fall within the scope of article 11. But, at the risk of spelling out the obvious, it does not follow from that that article 11 confers a universal right on any trade union to be recognised in all circumstances. It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes. To the extent that the rules of any such scheme constrain access to collective bargaining for a particular union (or its members) the constraints will have to be justified by – to use the language of the Unite decision (see para. 66, quoted at para. 44 above) – "relevant and sufficient reasons" and should "strike a fair balance between the competing interests at stake". But the decision also makes clear that in assessing any such justification the state should be accorded a wide margin of appreciation.
55. Applying that conclusion to this case, if the PDAU can demonstrate that the inhibition which paragraph 35 imposes on what would otherwise be its right to seek compulsory collective bargaining under Schedule A1 is unjustifiable that would give rise to a breach of its article 11 rights. (I formulate it that way for convenience: no question about burden arose in this case.) In the paragraphs from his judgment which I quote at para. 50 above the Judge did not put it in quite the same way as I have, but I think that his approach was substantially the same. It is accordingly necessary to go on to consider the second issue."
"56. For the purpose of this stage of the argument, both Boots and the Secretary of State accepted, tacitly if not explicitly, that if, by reason of the limited recognition accorded to the BPA, the PDAU was conclusively precluded by paragraph 35 from seeking recognition, such a state of affairs could not be justified and accordingly that the statutory scheme was to that extent incompatible with article 11. It was, however, their case, to recapitulate, that the PDAU was not so precluded because it was open to it to procure the derecognition of the BPA, at which point the obstacle presented by paragraph 35 would disappear."
"61. …The purpose of giving workers the right to secure the derecognition of a non-independent trade union must be to allow them to escape from the consequences of the recognition of a union by which they do not wish to be represented. Where the recognition is for the purpose of negotiating (at least) pay, hours and holidays, the primary consequence from which they will wish to escape is no doubt that of having those core terms negotiated for them by such a union. But that is not the only consequence of the recognition of a non-independent trade union. Another, because of paragraph 35, is that an independent trade union is prevented from securing recognition even where it has majority support. It would in my view be plainly contrary to the policy of Schedule A1 in general, and the purpose of Part VI in particular, if workers were unable to escape from that situation. That means that the conditions for the operation of Part VI must, so far as the language allows, be construed so as to allow it to be operated in any situation where paragraph 35 is preventing an application for recognition by an independent trade union: in other words, whatever counts as recognition for the purpose of paragraph 35 must count as recognition for the purpose of Part VI. There is no difficulty in reading paragraph 134 (1) (a) in that way. It is frankly impossible to know why the draftsman thought it necessary to include paragraph 136, but it is unnecessary to answer that question: all that matters is that it was not his intention to prevent Part VI being operated in all cases where paragraph 35 applied."
62. Like Sir Brian Keith [the trial judge] I would reach that conclusion on ordinary domestic principles of construction. But, also like him (see para. 21 of his judgment), if it were necessary I would invoke the special principles applicable under section 3 of the 1998 Act, since if derecognition under Part VI were not available there would in my view be a breach of article 11. Sir Brian in fact records at para. 21 of his judgment that before him Mr Hendy accepted that paragraph 134 could, with the assistance of section 3, be read so as to avoid the alleged incompatibility. That was not his position before us, where he argued that paragraph 136 represented an unequivocal expression of Parliament's intention which was incapable of being read down in the way proposed. For the reasons already given I do not accept that."
"68. The devising of a statutory scheme of recognition inevitably requires a large number of detailed choices about both substantive and procedural matters, seeking, as Mr Stilitz put it, to "balance and calibrate the interests of multiple stake-holders (e.g. workers, employers and competing trade unions)". There will inevitably be some choices which not only could have been made differently but could have been made better. But I think it is clear from the case-law of the ECtHR referred to above that article 11 cannot be used as a tool to challenge this or that arguably sub-optimal element in a scheme provided that a fair balance has been struck. Both before and after Demir the Court has emphasised the wide margin of appreciation which must be accorded to member states in this area: see, purely by way of example, paras. 60 and 66 of its judgment in the Unite case (paras. 43-44 above). Mr Stilitz also referred us to similar passages in Sindicatul "Pastoral Cel Bun" v Romania (2014) 58 EHRR 10, a decision of the Grand Chamber, (see at para. 133) and in National Union of Rail, Maritime and Transport Workers v United Kingdom (2015) 60 EHRR 10 (see para. 86).
"63. … In our view a right of the kind conferred by sections 188-192 of the 1992 Act – that is, (in the case of the union) to be consulted, and (in the case of the employees) to be consulted for – falls squarely within the "essential elements" protected by article 11. ……………Thus, whether or not the consultation rights afforded to a recognised trade union by sections 188-192 constitute "collective bargaining" in the sense that the Grand Chamber used that term in Demir, they are so closely analogous to the rights there recognised that they are plainly to be treated as "essential elements" of the rights protected by article 11. In that connection, we note that long before Demir the ECtHR had held that "the members of a trade union should have a right, in order to protect their interests, that the trade union should be heard …" (see Swedish Engine Drivers' Union v Sweden  ECC 1): consultation about mass redundancy seems a paradigm example of a matter affecting members' interests.
64. If, accordingly, the rights in question fall within the scope of article 11 the UK is under a positive obligation to secure the effective enjoyment of those rights. That does not mean that it is under an obligation to ensure that they are available to all employees in all circumstances, but it does mean that where a legislative scheme is in place it must strike a fair balance between the competing interests and any provision of that scheme which restricts its availability to particular classes of workers requires to be justified, albeit that the state is recognised to have a wide margin of appreciation. The relevant principles are discussed at paras. 33-47 and 54-55 in the judgment of Underhill LJ in Pharmacists' Defence Association Union v Boots  EWCA Civ 66,  IRLR 355, on the basis of Demir and the later ECtHR decision in Unite the Union v United Kingdom  IRLR 438.
65. That conclusion is fatal to the Secretary of State's, and thus also Wandsworth's, case on the issue of principle. As we have said, he has not sought in this case to advance any justification for the exclusion of parks police officers, or trade unions representing them, from the rights accorded by sections 188-192. In the absence of such justification the exclusion must represent a breach of their, and their union's, article 11 rights."
Application of the authorities to the present case
Lord Justice Phillips:
Lord Justice Underhill:
IN THE COURT OF APPEAL
Court of Appeal Refs: 2019/0889
Claim number in court below: CO/1604/2018
On appeal from:
The QUEEN'S BENCH DIVISION,
BEFORE UNDERHILL, BEAN AND PHILLIPS LJJ
UPON hearing Leading Counsel for the Appellant and for the Second Interested Party
IT IS ORDERED THAT:
1. The appeal is dismissed.
2. The Appellant do pay the costs of the Second Interested Party summarily assessed at £8000.