AS TO THE ADMISSIBILITY OF
Application No. 21386/93
by National and Local Government Officers
Association (NALGO)
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 February 1993
by National and ~Local Government Officers Association (NALGO) against
the United Kingdom and registered on 16 February 1993 under file No.
21386;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant trade union, the National and Local Government
Officers Association ("Nalgo") is a trade union with legal personality
under the Trade Union and Labour Relations (Consolidation) Act 1992.
It is represented by Mr. B. Piper, solicitor, of Bruce Piper & Co.,
London, and states that the application is brought "on behalf of its
individual members and in its own right".
This is Nalgo's second application to the Commission. Its first
application (No. 20530/92), in which it complained about the provisions
of Sections 3 - 5 of the Employment Act 1988 ("the 1988 Act") was
declared inadmissible on 15 October 1992 on the ground that the
application had been introduced more than six months after the entry
into force on 26 July 1988 of the relevant statutory provisions.
Sections 64 to 67 of the Trade Union and Labour Relations
(Consolidation) Act 1992 ("the 1992 Act") received the Royal assent
on 16 July 1992 and entered into force on 16 October 1992. Copies of
Sections 64 - 67 are attached to the present decision.
The provisions of Sections 64 - 67 of the 1992 Act repeated, in
substance, the provisions of Sections 3 - 5 of the the 1988 Act.
In the case of Bradley and Others v. Nalgo (1991) IRLR 159, Nalgo
expelled nine of its members for crossing picket lines during an
official strike. A declaration was made under the provisions of the
1988 Act that the expulsions amounted to unjustifiable discipline
within the meaning of that Act. Nalgo was given four weeks in which
to reverse the decisions to expel; it decided not to comply with the
order and an application was made for compensation. The minimum award
(then £2,520) was made. The Employment Appeal Tribunal, on 14 February
1991, found no grounds for awarding more than a statutory minimum.
COMPLAINTS
NALGO makes three principal complaints with regard to the 1992
Act. First, it alleges that the existence and application of the Act
is an impermissible restriction on the effective exercise by Nalgo on
behalf of its members of the freedom of association guaranteed by
Article 11 para. 1 of the Convention and, in particular, the collective
aspect thereof, namely "the right to form and join trade unions for the
protection of his interests".
The second ground of complaint, also under Article 11 of the
Convention, is that the legislation violates the autonomy of Nalgo and
of other trade unions and that it is therefore an inadmissible
interference with Article 11 rights.
Nalgo contends that the restriction and interference occasioned
by the 1992 Act are not "necessary in a democratic society" within the
meaning of Article 11 para. 2. They consider that, as the legislation
is not restricted in its application to unions which members are
a"member of the armed forces, the police or the administration of the
State, unions whose members are a "member of the armed forces, of the
police or the administration of the State", the final sentence of
Article 11 para. 2 does not apply .
Nalgo also alleges a violation of Article 11 taken together with
Article 14 on the ground that the law applies only to the internal
affairs of trade unions as defined in domestic law, and not to other
voluntary associations, such as employers' associations, political
parties or campaigning and religious bodies.
THE LAW
Nalgo alleges a violation of Article 11 (Art. 11) of the
Convention, both taken alone and in conjunction with Article 14
(Art. 11+14).
Article 11 (Art. 11) of the Convention provides as follows.
"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. ... "
The Commission recalls that in the Sigurjonsson case (Eur. Court
H.R., judgment of 30 June 1993, to be published in Series A no. 264,
para. 35) the European Court of Human Rights held that Article 11
(Art. 11) of the Convention encompasses a negative right of
association. Accordingly the Article contains a right to refuse to
associate as well as a freedom to associate. The applicant union may
well therefore have the right, in principle, to expel members who do
not comply with its rules. In taking a decision to expel however, full
weight must be given to the rights of the person whose expulsion is
under consideration as well as to those of other members of the
association, and the principle of proportionality must be observed.
The Commission would also comment that a particular aspect of the
right to freedom of association is the right to form and join trade
unions. Inherent in that right is the right, within the law, to
administer such unions autonomously (cf. No. 10550/83, Cheall v. the
United Kingdom, Dec. 13.5.85, D.R. 42 pp. 178, 185). Any restrictions
on union autonomy, such as those imposed by Sections 64 - 67 of the
1992 Act must therefore be considered in the context of Article 11
para. 2 (Art. 11-2) of the Convention.
The Commission recalls that, in the case of Cheall (loc. cit.),
it had to consider the extent to which Article 11 (Art. 11) of the
Convention required the State to protect an individual against abuse
of a dominant position by trade unions. Examples of such abuse given
by the Commission included "where exclusion or expulsion was not in
accordance with union rules or where the rules were wholly unreasonable
or arbitrary..." (p. 186). The Commission finds that the statutory
restriction on union freedom in the present case was "prescribed by
law", and that its aim was to protect the "rights and freedoms of
others", namely the individual members.
As to whether the restrictions were "necessary in a democratic
society", the Commission first notes that, although the statutory
definition of unjustifiable discipline contained in Section 65 of the
1992 Act narrowly defines conduct which is considered unjustifiable,
it is nevertheless for an industrial tribunal or the Employment Appeal
Tribunal pursuant to Section 67 to determine whether in a given case
such conduct has taken place.
The Commission next recalls that the very phrase "a democratic
society" connotes a "balance which ensures the fair and proper
treatment of minorities and avoids abuse of a dominant position"
(cf. Eur. Court H.R., Young, James and Webster judgment of 13 August
1981, Series A no. 44, p. 25 para. 63). It was to avoid such abuse
that the relevant provisions of the 1992 Act were passed.
Given the "margin of appreciation" allowed to States in achieving
this balance (cf. Young, James and Webster judgment, loc. cit., p. 26
para. 64), the Commission cannot find that the entry into force of
Sections 64 - 67 of the 1992 Act was not "necessary in a democratic
society" within the meaning of Article 11 (Art. 11) of the Convention.
Finally, the Commission notes that the legislation attacked by
the applicant union did not apply to other sectors of society, such as
voluntary organisations. However, the Commission is of the opinion
that trade unions play a particular role in the employment field such
that they are not in the same position as other associations and
organisations. Accordingly, legislation applying solely to trade
unions does not amount to a difference in treatment between comparable
groups with the result that there is no discrimination within the
meaning of Article 14 (Art. 14) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy