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Freedom of Association and the Closed Shop: the European Perspective
Published online by Cambridge University Press: 16 January 2009
Extract
On 13 August 1981 the European Court of Human Rights decided, by a majority of eighteen to three, that the dismissal by British Rail of three of their employees, Messrs Young, James, and Webster, for their refusal to join a union was a violation of their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although a variety of different arguments concerning the compatibility of their dismissal with the Convention's provisions had been presented to the court, the eventual decision was based entirely on Article 11 which protects, inter alia, the “right to … freedom of association with others, including the right to form and to join trade unions.”
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References
1 Advisory Conciliation and Arbitration Service v. United Kingdom Association of Professional Engineers [1979] 1 W.L.R. 570, 582.Google Scholar Although the House of Lords overruled the Court of Appeal decision, Lord Scarman emphasised that he agreed with the Master of the Rolls on the relationship between Art. 11 and the common law: [1981] A.C. 424,445.
2 In the Basic Law these are found in Arts. 1–19, which cannot be amended or repealed in the same way as other constitutional provisions. The fundamental rights protected under Arts. 40–44 of the Irish Constitution are on the face of them less extensive, but they have been developed in an impressive manner by the judiciary.
3 To an extent this was surprising, for when the draft of the Basic Law was being debated by the Parliamentary Council it was decided that the addition, “conpulsion to join [an association] may not be exercised,” should be dropped from the Article.
4 This is thought to arise out of Art. 2 (1), which in fact protects the rights of everyone to the “free development of his personality, provided he does not violate the rights of others or offend against the constitutional order or the moral code.” See on this Nipperdey, Hueck, Lehrbuch des Arbeitsrechts, 7th ed. (1967), 2.Google ScholarTeil, p. 159.Google Scholar
5 BAG 4, 22, 25.
6 BAG 19, 217, 226.
7 [1947] I.R. 77.
8 Per Murnaghan J. at p. 102.
9 [1961] I.R. 345.
10 This proposition may be difficult to reconcile with the later Supreme Court decision in Murphy v. Stewart [1973] I.R. 97, in which it was held that there is no right to join the union of one's choice.
11 [1961] I.R. 345,395.
12 The Educational Company decision has since been followed and affirmed in a number of decisions of the High Court and the Supreme Court: see Crowley v. Cleary [1968] I.R. 261;Google ScholarMeskill v. Coras lompair Eireann [1973] I.R. 121;Google ScholarCotter v. Ahem (H.C., unreported, 25 February 1977).
13 BAG AP Nr. 13 zu Art. 9 GG.
14 Ibid., at p. 350.
15 The practice operated by the B.R. appeal body set up to hear such cases, which required an applicant to show documentary evidence that his religious denomination prohibited union membership, was eventually held to be inconsistent with the Act: see Goodbody v. British Railways Board [1977] I.R.L.R. 84;Google ScholarSaggers v. British Railways Board [1978] 2 All E.R. 20.Google Scholar
16 At p. 24 of the judgment.
17 Ibid., at p. 17.
18 Ibid., at p. 18.
19 Ibid., at p. 18.
20 Ibid., at p. 19.
21 At p. 34 of the Commission's Report.
22 At p. 18 of the court's judgment.
23 It was presumably in recognition of problems such as these that the Irish Supreme Court eventually held that there was no constitutional right to join the union of one's choice; see Murphy v. Stewart [1973] I.R. 97, 117.Google Scholar
24 BAG AP Nr. 13 zu Art. 9 GG.
25 Certainly this was true of the applicants Young and Webster, who stated at the admissibility stage that they objected to membership of any trade union: see Appendix II of the Commission's Report, at pp. 60 and 83.
26 Educational Company [1961] I.R. 345, 362.Google Scholar
27 BAG AP Nr. 13, 351.
28 At p. 17 of the judgment.
29 For example, the Federal Labour Court frequently referred to the “right to stay away from “associations: see p. 350. Budd J. thought there was a “correlative right not to form or join associations or unions”: at p. 362.
30 See on this Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. Cook, W. W. (1919), Chap. 1.Google Scholar
31 See p. 22 of the Commission's Report. How they understood the distinction is not altogether clear.
32 At p. 32 of the Memorial.
33 At p. 33 of the Commission's Report.
34 See the decision of the Commission on the admissibility of Webster's case, at pp. 95–96 of the Commission's Report.
35 See the Memorial, pp. 38–39.
36 At p. 37 of the Commission's Report.
37 But see the concurring opinion of Judge Evrigenis, who disappproved of the decision to consider it: p. 25 of the judgment.
38 Ibid., at pp. 20–21.
39 Becton, Dickinson and Co. Ltd. v. Lee [1973] I.R. 1. Henchy J. in particular felt that the agreement to work in a post-entry closed shop amounted to a waiver of the constitutional right to non-membership: at p. 48.
40 See Meskell v. C.I.E. [1973] I.R. 121.Google Scholar
41 BAG AP Nr. 13, 355. The application of this test in the case itself was somewhat unsatisfactory, since automatic precedence was given to the negative freedom.
41 At p. 36 of the Commission's Report
43 This was advocated in Germany by the influential academic and judge, Professor H. G. Nipperdey, see Hueck, Nipperdey, op. cit., at pp. 157–158.Google Scholar
44 At p. 27 of the judgment.
45 But see the concurring judgment of Judge Evrigenis: “ … Trade union freedom is to a large extent determined by its character of a collective right”: at p. 25.
46 At p. 34 of the Report.
47 At p. 16 of the judgment.
48 The Law Relating to Trade Unions (1869), p. 12.Google Scholar
49 See in particular Quinn v. Leathern [1901] A.C. 495.Google Scholar
50 Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435.Google Scholar The other main cases were White v. Riley [1921] 1 Ch. 1 (C.A.), and Reynolds v. Shipping Federation Ltd. [1924] 1 Ch. 28 (Sargant J.).
51 Per Viscount Simon L.C. in Crofter, at p. 447.
52 This was the case in Huntley v. Thornton [1957] 1 W.L.R. 321.Google Scholar
53 Section 5 (1) (b) of the Act.
54 Originally contained in para. 6 (5) of Sched. 1 to the T.U.L.R.A., as amended in 1976.
55 As defined in section 30 of the T.U.L.R.A.
56 See, e.g., in the following cases: Dunbar v. Ford Motor Co. Ltd. [1975] I.R.L.R. 178;Google ScholarJeffrey v. Laurence Scott [1977] I.R.L.R. 466;Google ScholarCurry v. Harlow D.C. [1979] I.C.R. 769;Google ScholarHimpfen v. Allied Records Ltd. [1978] I.R.L.R. 154.Google Scholar
57 See, e.g., Kahn-Freund, Sir Otto, Labour and the Law (1977), at p. 177;Google Scholar and Lewis, Davies, Wedderburn, Industrial Relations Law and the Conservative Government, Fabian Society pamphlet (1979), p. 4.Google Scholar
58 At p. 3. See also pp. 11 and 19.
58a A Bill at the time of writing.
59 S. 58 (3) (4) of the E.P.C.A., as substituted by s. 2 (1) of the Employment Act 1982. This provision has been justly criticised on the grounds that it may encourage inter-union warfare: see the T.U.C., Commentary on the Employment Bill (1980), pp. 5–6.Google Scholar
60 For a more detailed analysis of the Act and the Code of Practice issued under it, see Elias, P., “Closing in on the Closed Shop” (1980) 9 I.L.J. 201.Google Scholar
61 But which, in view of the strict interpretation of the E.P.C.A. applied by tribunals, was not much in evidence anyway. For example, the E.A.T. recently held that a “somewhat technical approach “by tribunals was justified in these cases: Blue Star Ship Management Ltd. v. Williams [1979] I.R.L.R. 16, 17.Google Scholar
62 Prior, James, Secretary of State for Employment, during the Second Reading of the Employment Bill: Hansard (Commons), Vol. 976, col. 59.Google Scholar
63 At pp. 21–22 of the Memorial.
64 Trade Union Immunities, Cmnd. 8128, pp. 66–75.Google Scholar
65 Ibid., at p. 66.
66 At para. 3.
67 Trade Union Immunities, pp. 74–73.Google Scholar