THE NATIONAL ASSOCIATION OF TEACHERS IN FURTHER AND HIGHER EDUCATION v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 28910/95

                      by the NATIONAL ASSOCIATION OF TEACHERS

                      IN FURTHER AND HIGHER EDUCATION

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs   M. HION

           Mr    R. NICOLINI

           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 15 December 1994

by the NATIONAL ASSOCIATION OF TEACHERS IN FURTHER AND HIGHER EDUCATION

against the United Kingdom and registered on 11 October 1995 under file

No. 28910/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     10 June 1997 and the observations in reply submitted by the

     applicant on 13 November 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a trade union which has its head office in

London.  It is represented before the Commission by Messrs Michael

Scott & Co., London.

A.   The particular circumstances of the case

     The applicant union was involved in a trade dispute with the

Blackpool and Fylde College ("the College") and with other colleges of

further and higher education over the introduction of flexible

contracts of employment for newly appointed members of staff.

     In January 1994, the applicant union informed the principal of

the college that it intended to hold a ballot of its members over

whether they would be prepared to take part in strike action, and

whether they would be prepared to take part in action short of a

strike.  On a national ballot, a majority of members of the applicant

union had been in favour of industrial action; a larger number had been

in favour of action short of a strike than in favour of an actual

strike.

     On 10 February 1994 the applicant union informed the College that

it had instructed "all its members employed by your institution to take

part in discontinuous action.  The first intended date of this

industrial action, which will be on this occasion strike action, is

1 March 1994".

     The College applied for an interlocutory injunction on the ground

that the applicant union had failed to describe, "(so that [the

employer] can readily ascertain them) the employees of the employer who

it is reasonable for the union to believe ... will be entitled to vote

in the ballot", as required by Section 226A of the Trade Union and

Labour Relations (Consolidation) Act 1992 ("the 1992 Act").  The

College further contended that the applicant union had similarly failed

to describe, "(so that the employer can readily ascertain them) the

employees of the employer who the union intends to induce ... to take

part ... in the industrial action", as required by Section 234A of the

1992 Act.   A union which does not comply with the relevant

requirements of the 1992 Act loses the immunity in tort for losses

arising from a strike which it otherwise enjoys.

     The applicant union claimed that it could not be required to give

the actual names of the employees because the statute did not expressly

require names to be given (and the records of the parliamentary debates

confirmed that this was not the intention), and because for various

practical reasons it was virtually impossible to provide an accurate

list of names.  Moreover, members of unions who had not agreed to their

union dues being deducted by the employer were likely to be the sort

of people who regard membership of a union as a private matter.  The

applicant union also referred to Articles 8, 10 and 11 of the

Convention, to the ILO Freedom of Association and Protection of the

Right to Organize Convention 1948 and to Article 1 (2) (b) of the ILO

Right to Organize and Collective Bargaining Convention 1949.

     On 24 February 1994 Mr Justice Morrison granted the College the

injunction it had applied for, restraining the applicant union from

carrying out a proposed one day strike.  He agreed with the arguments

on behalf of the College "not without a degree of unease".  He accepted

that the inferred purpose of the provision was to enable employers to

seek to persuade the employees who were entitled to vote to say no to

the proposed action, and that a targeted approach would be more

effective and less likely to provoke resentment than a lobbying of the

whole work force.  This was particularly so in the present case, where

only about one third of the work force at the College belonged to the

union and two thirds of union members did not have their union dues

deducted at source, with the result that the College did not know who

they were.  Accordingly, the judge considered that the union, in order

to give a valid notice to the College, did indeed have to provide names

of union members at the College.  He added that it was not necessary

or desirable to refer to the records of the parliamentary debates (in

which the Minister had indicated that "I can think of no circumstances

in which it would be necessary for the union to provide the names and

addresses of the individuals involved"): any comments made there were

made in response to specific questions and interventions, and it was

preferable in this case to ascertain Parliament's intention by

reference to the language used in the statute, in the normal way.

     The judge also added that he could not see how the provisions of

the Convention had any bearing on the matters, and that the later ILO

Convention provided for protection from discrimination on grounds of

union membership.  He considered that because "of these protections I

cannot conclude that if a union has to disclose its members' names,

even in the run-up to industrial action, the persons identified would

be at risk, even where an employer had anti-union tendencies.  I should

add that there is no basis for such a suggestion here.  An anti-union

employer is likely to make it his business to know who, amongst his

employees, belong to a union.  Whatever his tendencies, the law has

provided protection to his employees."

     The judge granted leave to appeal.

     The Court of Appeal dismissed the appeal on 25 February 1994. The

Master of the Rolls rejected an argument by the applicant union that

the giving of names was offensive to union members and that the Data

Protection Act 1984 would be breached by the disclosure of names of

members without their consent, noting that the 1992 Act was the later

Act and, if its meaning was plain, it could only be construed as

derogating from the general provisions of the earlier Act.  He also

pointed out that if the union could only divulge the names with the

consent of its members, it still had the choice between obtaining the

consent and not giving the notice.

     The Master of the Rolls saw no ambiguity in the wording of

Sections 226A and 234A, and saw no assistance for the applicant union

in either the Convention or the ILO conventions.

     In commenting on the judge's unease as to his conclusion, the

Master of the Rolls noted "If by that he meant that he was uneasy as

to the practical implications of this construction, as to its effect

on the shop floor and on industrial relations, then it is possible to

feel very considerable sympathy with his view.  If, however, he meant

(and I think that he did not) that he felt unease as to whether this

was the correct construction, then I for my part do not share that

unease since, however unpalatable it may be, I regard the construction

which he upheld as inescapable".

     Lord Justice Neill agreed with the Master of the Rolls, as did

Lord Justice Steyn, who also expressed his "unease about the

consequences of a construction of this kind".

     Leave to appeal to the House of Lords was refused, and on 20 June

1994 the House of Lords itself refused leave to appeal.

B.   Relevant domestic law and practice

     Section 226A of the Trade Union and Labour Relations

(Consolidation) Act 1992 ("the 1992 Act") provides, in so far as

relevant, as follows:

     "(1)  The trade union must take such steps as are reasonably

     necessary to ensure that

     (a)   not later that the seventh day before the opening day of

           the ballot, the notice specified in subsection (2)

     ...

     is received by every person who it is reasonable for the union

     to believe ... will be the employer of persons who will be

     entitled to vote in the ballot.

     (2)   The notice referred to in paragraph (a) of subsection (1)

     is a notice in writing

     (a)   stating that the union intends to hold a ballot,

     (b)   specifying the date which the union reasonably

           believes will be the opening day of the ballot,

           and

     (c)   describing (so that he can readily ascertain

           them) the employees of the employer who it is

           reasonable for the union to believe (at the time

           when the steps taken to comply with this

           paragraph are taken) will be entitled to vote in

           the ballot."

     Section 234A of the 1992 Act removes protection of the union, in

respect of the employer, if the union has not taken such steps as are

reasonably necessary to ensure that the employer receives a notice

which:

     "(3)(a) describes (so that he can readily ascertain them)

     the employees of the employer who the union intends to

     induce or has induced to take part, or continue to take

     part, in the industrial action."

COMPLAINTS

     The applicant union alleges a violation of Article 11 of the

Convention.  It claims that the requirement to provide lists of members

who are to be balloted concerning industrial action places serious

obstacles on its ability to strive for the protection of its members'

interests. The applicant union notes that if such a list is not

provided it is (as occurred in the present case) enjoined from

striking.  Moreover, the effect of the regulations is that the

applicant union is required to disclose all its membership to a

particular employer regardless of the wishes of some that this should

not happen, and if it does not disclose, the wishes of the majority of

its members - to take action in the context of a fundamental industrial

dispute - will be thwarted.

     The applicant union submits that the above interference with its

rights under Article 11 para. 1 is not justified.  It recalls that the

United Kingdom does not have a domestic bill of rights, and notes

judicial comments of concern as to the effects of Sections 226A and

234A.  It also submits that there has been a woeful failure to strike

the right balance between the rights of the union and those of the

employer.  It emphasises that Sections 226A and 234A must be examined

in the context of the full range of protection given to employers'

rights by the law, including the 1992 Act, for example the duty imposed

on the union to give the employer notice of a ballot and submit sample

voting papers not later than the seventh day before the opening of the

ballot, and the requirement that postal ballots must have independent

scrutiny.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 15 December 1994 and registered

on 11 October 1995.

     On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on 10 June

1997, after an extension of the time-limit fixed for that purpose.  The

applicant replied on 13 November 1997, also after an extension of the

time-limit.

THE LAW

     The applicant union alleges that the operation of Sections 226A

and 234A of the Trade Union and Labour Relations (Consolidation) Act

1992 ("the 1992 Act") in the present case was in violation of Article

11 (Art. 11) of the Convention.  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.  This Article shall not prevent

     the imposition of lawful restrictions on the exercise of these

     rights by members of the armed forces, of the police or of the

     administration of the State."

a)   The Government state that the applicant union could have

organised industrial action and preserved its immunity had it complied

with the statutory provisions, but it chose not to do so.  The

Government submit that in these circumstances the applicant union

cannot claim to be a victim under Article 25 (Art. 25) of the

Convention.

     The applicant union claims that its victim status under

Article 25 (Art. 25) is clearly established.  It refers to Convention

case law which has held that a union may have the standing of a victim

under Article 25 (Art. 25) (Eur. Court HR, National Union of Belgian

Police v. Belgium judgment of 27 October 1975, Series A no. 19 and Eur.

Court HR, Schmidt and Dahlström v. Sweden judgment of 6 February 1976,

Series A no. 21).  It contends that the statutory provisions at issue

imposed obligations on it to provide information about its membership,

and points out that the union was the party sued in the domestic

proceedings and against which the injunction was granted.

     The Commission notes the express inclusion, in Article 11 para. 1

(Art. 11-1) of the Convention, of the right "to form and to join trade

unions", and recalls that a trade union may claim to be a victim of

alleged violations of its own rights (cf. Eur. Court HR, National Union

of Belgian Police v. Belgium judgment of 27 October 1975, Series A

no. 19, p. 18, para. 39), and that a trade union may be able to claim

to be the victim of a violation of Article 11 (Art. 11) of the

Convention where the right to join a trade union is completely removed

(cf. No. 11603/85, Council of Civil Service Unions et al. v. the United

Kingdom, Dec. 20.1.87, D.R. 50, p. 228, where the question of the

union's standing was not expressly addressed; see also, as an example

of a case where the union did not have such status, No. 22954/93, Ahmed

and others v. the United Kingdom, Dec. 12.9.95).

     The Commission notes that the requirement to disclose a list of

its members to an employer at the often tense moment of a ballot on

whether industrial action should be taken may affect the way in which

the applicant union protects the rights of its members.  The Commission

further notes that domestic proceedings were brought against the

applicant union.  Those proceedings dealt directly with the fulfilment

by the applicant union of statutory requirements prior to taking

industrial action.  Further, the proceedings resulted in the grant of

an injunction against the union, which restrained the union from

proceeding with the planned industrial action.

     The Commission therefore accepts that the applicant union may

claim to be a victim of an alleged violation of Article 11 (Art. 11)

of the Convention.

b)   The Government submit that the applicant union is claiming, in

substance, a right to strike without identifying in advance the members

of the trade union who are to be involved in such a strike. The

Government submit there is no such right under Article 11 (Art. 11) of

the Convention.  To the extent that the requirement to disclose

members' names could lead to an employer using this knowledge in

deterring or penalising employees from being members of a union, the

Government state that there are provisions of domestic law (Sections

152, 146 and 137 of the 1992 Act) which would enable actions to be

brought against employers who sought to take anti-union measures.  The

Government further submit that to require a union, which operates a

computerised register, to give a list of its members to the employer

cannot be considered as a task so onerous as to interfere with rights

under Article 11 (Art. 11) of the Convention. The Government submit,

in the alternative, that if the requirement to give the list of names

is a restriction of rights under Article 11 (Art. 11), this restriction

is in any event justified under Article 11 para. 2 (Art. 11-2): the aim

of Section 226A is to give the employer the opportunity of seeking to

persuade employees not to vote in favour of industrial action, and the

aim of Section 234A is to enable employers to know where a disruption

is likely to occur and its likely extent, so that alternative

arrangements can be made.

     The applicant union alleges that Article 11 (Art. 11) encompasses

a right to strike and submits that this right has been interfered with

in an unjustifiable manner.  It points out, by reference to a paper by

Professor Bercusson, that the right to strike is not guaranteed in the

United Kingdom, either expressly or implicitly, and that in a survey

of most member states of the European Union, only the United Kingdom

has a requirement to provide information on strikers.  In particular

the applicant union refers to the dilemma of a trade union which would

have to disclose the identity of all union members to the employer

(possibly against members' wishes) or not take industrial action.

Further there was the practical difficulty in the present case of

providing an accurate register for a union whose membership fluctuates

considerably, particularly at times of industrial action.  The

applicant union does not accept that union members are protected by

domestic law against employers who penalise or deter them from union

activities.  The applicant union states there can be no justification

under Article 11 para. 2 (Art. 11-2) for the interference.  In

particular the applicant union states that, had the employer genuinely

wished to know the extent of likely disruption, this could have been

obtained by circulating all members of staff, and asking whether they

would be taking industrial action.

     The Commission recalls that Article 11 (Art. 11) of the

Convention guarantees freedom to protect the occupational interests of

trade union members by trade union action, the conduct and development

of which the Contracting States must both permit and make possible

(Eur. Court HR, National Union of Belgian Police v. Belgium judgment

of 27 October 1975, Series A no. 19, p. 18, para. 39).  The right to

strike is an important aspect of that protection, but it is not

expressly enshrined in Article 11 (Art. 11) and may be subject under

national law to regulation of a kind that limits its exercise in

certain circumstances (Eur. Court HR, Schmidt and Dahlström v. Sweden

judgment of 6 February 1976, Series A no. 21, p. 16, para. 36).

     Sections 226A and 234A of the 1992 Act limit the practical

exercise of the right to strike, in that they add a further procedural

hurdle in the path of a union which wishes to call for industrial

action.  (In this connection the Commission notes that the Committee

of Independent Experts of the European Social Charter is considering

the provisions in the context of Article 5 of the European Social

Charter; see Conclusions XIII-3, p. 109).  The question for the

Commission, however, is whether this hurdle is compatible with the

right of a trade union under Article 11 (Art. 11) to protect the

occupational interests of its members.

     The applicant union concedes that the interference is prescribed

by law.  It claims, however, that the requirement to divulge the names

of its members who are to be included in a ballot or in industrial

action, is not proportionate to any legitimate aim.  It contends that

it is not right that an employer should be able to compel a union to

disclose who is to be balloted or to take part in industrial action,

and that the provision does not strike the right balance between the

rights of the employer and those of the union.

     The Commission notes that the first instance judge found that the

aim of Sections 226A and 234A was to give employers the opportunity to

seek to persuade employees who were entitled to vote or to participate,

to say no to the proposed action, and that a targeted approach would

be more effective and less likely to provoke resentment than a lobbying

of the whole work force.

     The Commission does not agree with the applicant union that the

requirement to divulge the names of members is a significant limitation

on the right to take collective action: even in the often tense context

of industrial disputes, a requirement to disseminate information with

a view to furthering debate and discussion between the parties cannot

be seen as inherently incompatible with Article 11 (Art. 11) of the

Convention.  It is conceivable that, in certain circumstances, an

employer will use, or try to use, the information to put undue pressure

on an employee not to participate in a ballot, or to vote in a

particular way, but in the present case there was and is no allegation

whatever that the College was an "anti-union" employer.  Thus even if,

contrary to the opinion of the first instance judge and the Government,

there were no protection in domestic law for employees who are

victimised as a result of union activity, the present applicant union

(and its members at the college) would not have been under such

pressure.

     The Commission notes the applicant union's claim that on a

"balance of inconvenience", it should not be saddled with the

considerable administrative burden of having to produce lists of its

members for each employer where a ballot is to take place, when

employers could themselves ask employees about their intentions.

However, the question for the Commission is not whether the aim pursued

could be achieved by other means, but rather whether the applicant's

rights under the Convention have been violated.  The Commission is not

satisfied that there was any real difficulty for the applicant union

in producing a list of members at each establishment where it was

represented, or that any minor errors which might have occurred in

preparing such lists from records which were not completely up to date

would have had any impact on the union's position.

     A further consideration in the present case is that the applicant

union had to choose between divulging the names of members who may not

have wanted their employer to know that they were members of a union,

and - in effect - not taking industrial action.  The first instance

judge considered that no harm would be done by divulging the names, as

an anti-union employer would in any event know which worker was a

member of which union and in such a case there was the protection of

domestic law, while in the case of an employer who was not anti-union,

there was no need to fear undue pressure.  The Master of the Rolls was

of the opinion that the choice between obtaining the consent of members

to having their names divulged and not giving the notice (and therefore

not striking) was a real choice.

     The Commission can accept that there may be specific

circumstances in which a legal requirement on an association to reveal

the names of its members to a third party could give rise to an

unjustified interference with the rights under Article 11 (Art. 11) or

other provisions of the Convention.  In the present case, however, the

Commission does not accept that the obligation on the applicant union

to reveal its membership list had an adverse effect on the applicant

union's right to act to protect its members' interests.  If the members

of a union decide to strike, the employer will be aware of the names

of the strikers, and the fact that the employer finds out their names

before, rather than after, the ballot cannot materially affect the

position.  Further, the employer will be aware of the names of all

those members of the union whose union dues are deducted at source by

the employer.  It is conceivable that there may be members who do not

wish their names to be revealed, who would vote against a strike and

then would not be involved in a strike, and that such members would

prefer that their names should not be given to their employer.

However, the Commission considers that there is nothing inherently

secret about membership of a trade union, and in any event the

applicant union does not submit that there were, in reality, any such

members, whether at the college or at other places where a strike was

envisaged.

     In the circumstances of the present case, therefore, the

Commission finds that the requirement on the applicant union to reveal

the names of the members participating in the ballot before taking

industrial action did not result in an interference with the applicant

union's rights under Article 11 (Art. 11) of the Convention which was

disproportionate to the legitimate aim pursued and that the facts

accordingly disclose no violation of the provisions of that Article.

     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, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                              M.P. PELLONPÄÄ

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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