![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Independent Workers' Union of Great Britain, R (on the application of) v Central Arbitration Committee & Ors [2019] EWHC 728 (Admin) (25 March 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/728.html Cite as: [2019] IRLR 530, [2019] EWHC 728 (Admin) |
[New search] [View without highlighting] [Printable PDF version] [Help]
& CO/1604/2018 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
THE QUEEN on the application of THE INDEPENDENT WORKERS' UNION OF GREAT BRITAIN |
Claimant |
|
- and - |
||
CENTRAL ARBITRATION COMMITTEE |
Defendant |
|
- and - |
||
CORDANT SECURITY LTD UNIVERSITY OF LONDON SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY |
Interested Parties |
____________________
(instructed by Harrison Grant Solicitors) for the Claimant
Joseph Barrett (instructed by Government Legal Dept.) for the Defendant
The First Interested Party was not represented
Christopher Jeans QC and Ronnie Dennis
(instructed by Mills & Reeve LLP) for the 2nd Interested Party
Daniel Stilitz QC (instructed by Government Legal Dept.) for the 3rd Interested Party
Hearing date: 26 February 2019
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
The Relevant Factual Background
The Legal Framework
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."
"References to the employer are to the employer of the workers constituting the bargaining unit concerned".
"(1) An application under paragraph 11… 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.
(2) But sub-paragraph (1) does not apply to an application under paragraph 11… if…
(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and
(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include all of the following: pay, hours and holidays ('the core topics').
(3) …
(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if—
(a) the union does not have (or none of the unions has) a certificate of independence,
(b) at some time there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and
(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question. …"
"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."
"(1) The employer may not terminate an agreement for recognition before the relevant period ends.
(2) After that period ends the employer may terminate the agreement, with or without the consent of the union (or unions).
…
(5) The relevant period is the period of three years starting with the day after the date of the agreement."
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
i) The CAC's decision was taken without an oral hearing, allegedly in breach of the Union's rights under Article 6 ECHR ("the Article 6 challenge"); and/orii) By precluding the Union's application for recognition, paragraph 35 of Schedule A1 to the 1992 Act breached the Union's rights under Article 11 ECHR. In the circumstances, paragraph 35 should either be (a) "read down" pursuant to s.3 of the HRA, so as not to preclude such an application for recognition, or (b) be subject to a declaration of incompatibility pursuant to s.4 of the HRA ("the Article 11 challenge").
The CAC Decisions on Article 11 ECHR
The First Decision
"20. The Panel recognises that paragraph 35 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 [2009] 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…
…
Decision
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 Second Decision
"27. … In its submissions, the Union readily accepted that there were contracts of employment between the workers in the proposed bargaining unit and Cordant – which might be called the de jure employer. However, the Union argued that the existence of these contracts should not preclude the University, for the purposes of an application for statutory recognition, being a de facto employer of the workers on the grounds that the University substantially determines their terms and conditions with Cordant, specifically pay, hours and holidays.
28. Purely for the purposes of determining the admissibility of this application, let us suppose that the Union is correct in its factual assertion that the University has, in practice, substantially determined the terms of the workers' contracts of employment with Cordant in so far as pay, hours and holidays are concerned. We proceed on that basis without implying that the Union's assertion is correct and without further analysis of the meaning of 'substantially determined'…
29. The schedule itself does not provide a more precise definition of 'employer' other than that found in paragraph 2… However, 'employer' is defined, in relation to a worker, in section 296(2) of the Act. It is coupled with the definition of 'worker' in section 296(1). The two definitions must be read together. … It follows that, for the Union's case to succeed, there must still be a contract between each individual worker in the bargaining unit on the one hand and the University on the other hand. That is an absolute requirement. However, there is no such contract in this case. On the face of it, that is fatal to the Union's application.
30. The Union has not proposed any wording that might be 'read into' section 296 to enable it to give effect to the Union's Article 11 rights…
31. Section 43K(1)(a)(ii) ERA [Employment Rights Act 1996] provides an extended definition of 'worker' and 'employer' for the purpose of Part IVA ERA only. As the EAT noted in McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 752, it was specifically designed to secure whistleblowing protection for workers and health services in England, Scotland and Wales. … In a collective bargaining context, such an approach would not just be novel, as the Union accepts; it would transform the statutory machinery for collective bargaining and run counter to the CAC's general duty under paragraph 171 of the Schedule. An acceptance that this application is admissible would go entirely against 'fair and efficient practices and arrangements' because it could lead to a situation where the same workers in the same bargaining unit had one trade union in respect of their de facto employer (which, in this sort of case, would be the end user in an outsourcing arrangement) and another trade union in respect of what we might call the de jure employer (the actual employer to whom the service provision has been outsourced). Far from creating fair and efficient practices, this would be a recipe for chaotic workplace relationships.
32. The CAC is a creature of statute and it must apply the statute. In the Panel's view, such an expansion of the definition of 'worker' and 'employer' is a matter for Parliament. In respect of the Union's contention that section 296 of the Act is incompatible with the Union's Article 11 rights, it is a matter for the High Court."
The Parties' Submissions and Discussion
The First Decision
"The European and international instruments… do 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."
"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."
These aims were reflected in the scheme of Schedule A1 to the 1992 Act (see, for example, para 25 above).
"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."
"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, employer 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 also Vining and others v London Borough of Wandsworth and another [2017] EWCA Civ 1092, Sir Terence Etherton MR, giving the judgment of the court, at para 64).
The Second Decision
"can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases."
Mr Hendy submits, therefore, Article 11 must be read in accordance with the provisions of ILO Convention 87 on freedom of association and protection of the right to organise, ILO Convention 98 on the right to organise and collective bargaining and ILO recommendation 198.
"…in Recommendation no.198 concerning the employment relationship… the International Labour Organisation considers that the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties."
"29. The university does not have any contract in place with any Cordant employee assigned to work at the University.
30. Equally it does not have any involvement in determining their terms and conditions of employment, whether in relation to pay, hours, holidays or otherwise; except that it requires Cordant to pay at least the London Living Wage… Each of those terms and conditions is determined by the workers' contracts of employment with Cordant or an earlier service provider, and/or any side letter issued by Cordant."
As for the University's contract with Cordant, Mr Cain states (at para 44) that:
"The contract does not give the University any influence or control over Cordant employees' terms and conditions of employment, except where the University has already served notice to terminate the contract. In that case, Cordant may not vary any employees' terms of employment without the University's consent."
Mr Cain adds that this is intended to ensure that any re-tendering of the services, or decision to take them back in-house, is based on the costs associated with the contract during its normal operation.
"[They] … 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."
Conclusion