AS TO THE ADMISSIBILITY OF
Application No. 30668/96
by David W. WILSON & NATIONAL UNION OF JOURNALISTS
Application No. 30671/96
by Terence A. PALMER, Arthur E. WYETH and the National
Union of Rail Maritime and Transport Workers
Application No. 30678/96
by Michael John DOOLAN and Others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 14 September 1995
by David W. WILSON & NATIONAL UNION OF JOURNALISTS against the United
Kingdom and registered on 26 March 1996 under file No. 30668/96;
Having regard to the application introduced on 14 September 1995
by Terence A. PALMER, Arthur E. WYETH and the National Union of Rail
Maritime and Transport Workers against the United Kingdom and
registered on 26 March 1996 under file No. 30671/96; Having regard
to the application introduced on 19 October 1995 by Michael John DOOLAN
and Others against the United Kingdom and registered on 26 March 1996
under file No. 30678/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the respondent Government's letter of 3 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
A. Particular circumstances of the case
Application No. 30668/96
The first applicant is a British citizen, born in 1953 and
resident in London. The second applicant is a trade union of
journalists ("the union"), of which the first applicant is a member.
Both applicants are represented before the Commission by Stephens
Innocent, a firm of solicitors practising in London. The facts as
submitted by the applicants may be summarised as follows.
The first applicant was employed by the British Newspaper
Publishing Company Associated Newspapers Limited ("the employer"). The
union has been recognised since at least 1912 for the purpose of
collective bargaining as regards the terms and conditions of employment
of its members under the terms of a "House Agreement". The House
Agreement governed all aspects of the relationship between the employer
and the journalists employed by it.
In 1989 the employer gave notice to all journalists, by letter
dated 10 November 1989, that the union was going to be de-recognised
from 1 April 1990 and that personal contracts were to be introduced
requiring that journalists accept de-recognition. A 4.5% pay increase
would be made to those journalists who signed the personal contracts.
On 30 March 1990 the employer refused to enter into pay negotiations
with the officers of the union and as from 1 April 1990 the union was
declared to be no longer recognised by the employer for any purpose.
The first applicant refused to sign the personal contract, and
consequently did not receive the 4.5% pay increase (worth about £1,500
per annum to the first applicant). In subsequent years the first
applicant's salary increased, but was never raised to the same level
as those who had received a 4.5% increase.
The first applicant complained to the Industrial Tribunal on the
grounds that the requirement that he should sign the personal contract
with its removal of references to his trade union and the failure to
pay him the 4.5% pay rise when he refused to do so, was in breach of
domestic law, namely the Employment Protection (Consolidation) Act 1978
("the 1978 Act"), and contrary to the rights afforded him under the
Convention. The Industrial Tribunal held in favour of the first
applicant on 22 October 1990. This decision was appealed by the
employer to the Employment Appeal Tribunal, which by a majority upheld
the employer's appeal on 25 June 1992. The first applicant appealed
to the Court of Appeal who heard his case together with the case of
Mr Palmer and Others (see Application No. 30671/96). On 10 May 1993
the first applicant's appeal was upheld by a unanimous finding of the
Court of Appeal. The employers then appealed to the House of Lords
where the first applicant's case was again heard together with the case
of Mr Palmer and Others. The House of Lords' decision in favour of the
employer, was handed down on 16 March 1995. The House of Lords were
unanimous in allowing the employers' appeal, however their reasoning
was disparate. The majority based their decision on the fact that the
statutory history was such that it was impossible to hold that an
"omission" to offer a pay rise to the applicants who did not accept the
proffered new personal contracts, constituted "action" against such
employees, in contravention of section 23 (1) (a) of the 1978 Act. Four
of the five Law Lords held that whilst it was plain that the employer
was seeking by means of an attractive offer to induce its employees
voluntarily to abandon the union's collective bargaining and to deal
directly with the employers over their terms and conditions of
employment, there was nothing to suggest that the employer was seeking
to induce the employees to give up their union membership.
Two months after the decision of the House of Lords, the first
applicant was dismissed for his trade union activities.
Application No. 30671/96
The first and second applicants are British citizens. The first
applicant was born in 1949 and currently lives in Southampton. The
second applicant was born in 1936 and currently lives in Totton,
Hampshire. The third applicant ("the union") is an independent trade
union of which the first and second applicants were members. All the
applicants are represented before the Commission by Pattinson and
Brewer, a firm of solicitors, practising in London. The facts as
submitted by the applicants may be summarised as follows.
The first and second applicants were both employed by Associated
British Ports ("the employer") at the Port of Southampton, as manual
grade employees. They were also members of the union. The union was
recognised by the employer for the purposes of collective bargaining
under the terms of a collective agreement. This agreement was
comprehensive and governed all aspects of the relationship between the
employer and the manual grade employees.
In February 1991 the first and second applicants, along with
their fellow employees, were sent a letter offering them a personal
contract of employment to take effect on 1 March 1991. This personal
contract provided that the terms of the collective agreement would no
longer apply to employees accepting the personal contract, the
employees would no longer have the right to be represented by the union
and pay would not be determined by the existing negotiated wage rates.
An inducement in the form of a pay increase of approximately 10%,
together with private medical insurance was offered to employees who
signed the personal contract.
The first and second applicants refused to sign the personal
contract and consequently did not receive the pay increase or the
private medical insurance. The employer did not immediately de-
recognise the union. In June 1991, an annual pay rise was negotiated
between the union and the employer, under the terms of the collective
agreement, for employees who had not signed the personal contract. The
negotiated pay increase was lower than the pay increase offered in the
personal contracts.
In 1992 the employer gave notice that it was terminating the
collective agreement and de-recognising the union for all purposes.
The first and second applicants complained to the Industrial
Tribunal in August 1991, on the grounds that the requirement that they
should sign the personal contract, with its express reference to the
right no longer to be represented by the union and the granting of a
pay rise to employees who signed the personal contract, was in breach
of domestic law, namely the 1978 Act. The Industrial Tribunal held on
20 January 1992 that there had been a breach of section 23 (1) (a) of
the 1978 Act. The employer appealed to the Employment Appeal Tribunal
which found in its favour, in a decision dated 13 October 1992. The
first and second applicant appealed to the Court of Appeal, where their
case was heard together with a similar case involving members of the
National Union of Journalists (see Application No. 30668/96). The Court
of Appeal found unanimously for the first and second applicants on
10 May 1993. The employer then appealed to the House of Lords (the
appeal in the case involving the National Union of Journalists again
being heard simultaneously), where they were successful. The House of
Lords decision was handed down on 16 March 1995 (see under particular
circumstances of Application No. 30668/96 for reasoning of House of
Lords).
Application No. 30678/96
The applicants are all British citizens living in Cardiff.
Further details are set out in the appendix hereto. They are
represented before the Commission by Pattinson and Brewer, a firm of
solicitors, practising in London. The facts as submitted by the
applicants may be summarised as follows.
The applicants were all employed by Associated British Ports
("the employer") at the Bute Docks in Cardiff and were all members of
the Rail Maritime and Transport Workers Union ("the union").
The union was recognised by the employer for the purposes of
collective bargaining as regards the terms and conditions of employment
of its manual grade employees under the terms of a collective
agreement. This agreement was between the employer and the manual
grade employees. It was a comprehensive agreement that covered all
aspect of the relationship between the employer and manual grade
employees.
On 19 April and 19 July 1991 each of the applicants was sent a
letter offering him a personal contract of employment including an
increase in pay. In return, each had to relinquish all rights to trade
union recognition and representation, and to agree that annual
increases and other terms and conditions would no longer be negotiated
by the union on his behalf.
Each of the applicants refused to sign a personal contract, and
as a result, received only a 4% annual pay increase on their basic rate
of pay. This was awarded in July 1992, and back dated to 20 April 1992.
This increase was negotiated by the union representative responsible
for the Cardiff Docks and formally accepted by an agreement dated
30 June 1992.
Those employees, holding the same positions as the applicants,
who accepted personal contracts received a pay increase which was
approximately 8-9% greater than the pay rise awarded to the applicants.
In 1992 the employer gave notice that it was terminating the
collective agreement and de-recognising the union for all purposes.
Each of the applicants made an application to an industrial
tribunal claiming that the requirement that they should sign the
personal contract with the express reference to the right no longer to
be represented by a trade union, and the failure to pay the same pay
rise as employees who sign the personal contract, was in breach of
domestic law. However, their cases were never heard, because the
hearing was postponed pending the decision of the House of Lords in the
cases of Palmer v Associated British Ports and Wilson v Associated
Newspapers (see Application No. 30668/96). The House of Lords decision
finding for the employers in both cases was handed down on 16 March
1995.
In consequence of the House of Lords judgment, the applicants
were advised that their applications to the industrial tribunal were
doomed to failure, since there was no material difference between their
circumstances and those of Mr Palmer who had lost his case. Therefore,
each of the applicants withdrew his application from the industrial
tribunal thus leading to a formal dismissal of their cases. Between
25 April 1995 and 5 May 1995 the applicants' applications were
withdrawn, and the applicants duly informed that their cases had been
dismissed.
B. The relevant domestic law
Section 23 (1) (a) of the 1978 Employment Protection
(Consolidation) Act 1978 provides:
"(1) Every employee shall have the right not to have action
(short of dismissal) taken against him as an individual by his
employer for the purpose of
(a) preventing or deterring him from being or seeking to
become a member of an independent trade union, or
penalising him for doing so.
This section was subsequently re-enacted as section 146 (1) of
the Trade Union and Labour Relations (Consolidation) Act 1992 ("the
1992 Act").
Following the decision of the Court of Appeal an amendment was
made to the law.
Section 13 of the Trade Union Reform and Employment Rights Act
1993 amended section 148 of the 1992 Act such that, where "the
employer's purpose was to further a change in his relationship with all
or any class of his employees" then, unless the action of the employer
was action no reasonable employer would take, an employee could not
complain under section 146 (1) of the 1992 Act.
COMPLAINTS
The applicants complain that the law of the United Kingdom failed
to protect their interests through trade union membership. In
particular the applicants complain about the termination of the
collective bargaining facility and the termination of all union
representation.
The applicants also claim that the denial of union representation
before the employer amounted to a violation of freedom of expression.
Further the individual (as opposed to union) applicants complain
that the law of the United Kingdom permitted discrimination against
trade union members. They allege that withholding a pay rise from
employees who wished to have union representation and thus refused to
sign personal contracts excluding such representation, amounted to
discrimination.
The applicants invoke Article 11 in conjunction with Articles 10,
further the individual applicants invoke Article 14.
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced on the following dates:
Applications Nos. 30668/96 and 30671/96 on 14 September 1995 and
Application No. 30678/95 on 19 October 1995. Each of the applications
was registered on 26 March 1996.
On 26 February 1997 the Commission decided to join the
applications and communicate them to the respondent Government.
The Government on 3 July 1997, after an extension of the time-
limit fixed for the submission of observations, informed the Commission
that they did not wish to submit written observations on admissibility,
but would reserve their position on the merits. Due to the Government's
stance the applicants were not invited to submit observations in reply.
THE LAW
The applicants complain that the law of the United Kingdom failed
to protect their interests through trade union membership. They invoke
Article 11 in conjunction with Articles 10 (Art. 11+10), further the
individual applicants invoke Article 14 (Art. 14).
Article 11 (Art. 11) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right ... including the right to form and
to join trade unions for the protection of his interests."
Article 10 (Art. 10) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority ..."
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government have made no submissions on admissibility and has
reserved their position with regard to the merits. There has thus been
no reply by the applicants.
The Commission considers that the applications raise complex
issues of law and fact under the Convention, the determination of which
should depend on an examination of the merits of the application as a
whole. The Commission concludes, therefore, that these complaints are
not manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring them
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Appendix
COMPLETE LIST OF APPLICANTS
Application No. 30668/96
Name Nationality D.O.B. Address
David WILSON British 04.12.53 London
NATIONAL UNION
OF JOURNALISTS London
Application No. 30671/96
Name Nationality D.O.B. Address
Terence A. PALMER British 06.07.49 Southampton
Arthur E. WYETH British 25.01.36 Totton, Hants
NATIONAL UNION OF
RAIL AND MARITIME
TRANSPORT WORKERS London
Application No. 30678/96
Name Nationality D.O.B. Address
Michael J. DOOLAN British 24.05.57 Cardiff
John I. FARRUGIA British 12.05.63 Cardiff
Christopher S. JENKINS British 01.04.72 Cardiff
B. JONES British Cardiff
Arthur L. PARRY British 12.02.48 Cardiff
David F. PARRY British 11.05.46 Cardiff
David S. PINE British 16.06.46 Cardiff
Keith A. WEBBER British 15.03.62 Cardiff
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