The Independent Workers' Union of Great Britain, R (on the application of) v Central Arbitration Committee & Ors

Article 11 does not confer a universal or unqualified right to compulsory trade-union recognition. A statutory scheme may protect an existing voluntary recognition agreement with an independent union, even though another union has greater support. Such limits fall within the State’s wide margin of appreciation where they promote stable and effective collective bargaining.

The Article 11 right to collective bargaining is a right to bargain with the employer. It does not ordinarily extend to compulsory bargaining with a third party that influences or controls contractual terms but has no employment contract with the workers. Restrictions pursuing orderly bargaining and protecting the economic freedom of organisations are justified where they strike a fair balance and no less intrusive alternative is available.

The Union applied to the Central Arbitration Committee for statutory recognition by Cordant Security Ltd and by the University of London in respect of security and related workers assigned to the University.

The CAC rejected both applications. It held that the first application was inadmissible because an independent union, Unison, already had a voluntary collective agreement with Cordant under paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. It rejected the second because the workers were employed by Cordant, not the University, and had no contractual relationship with the University.

The Union challenged both decisions under Article 11 of the ECHR, seeking a reading down of the legislation or a declaration of incompatibility. The central questions were whether Article 11 was engaged and, if so, whether the statutory limits were justified.

1. The claim was dismissed. Neither CAC decision was incompatible with Article 11 of the ECHR.
2. Paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 prevents an application for statutory recognition where a voluntary agreement already recognises an independent union for the relevant bargaining unit. This protects voluntary arrangements, avoids competing bargaining structures and promotes stable and effective collective bargaining.
3. The right to collective bargaining protected by Article 11 is a right to bargain with the employer. It does not require compulsory bargaining with a third party that is not the workers’ employer and has no contractual relationship with them, even if it is alleged to influence their terms and conditions.
4. The decisions in Demir v Turkey [2009] IRLR 766, Sindicatul “Pastorul Cel Bun” v Romania [2014] IRLR 49 and Manole and Romanian Farmers Direct v Romania were not authority for extending Article 11 in that manner. The factual and legal context in Sindicatul concerned whether priests were employed by the church, not whether workers employed by one body were also employed by another.
5. The State’s positive obligations under Article 11 do not require a mandatory mechanism for collective bargaining in every sector or against every entity. The legislation provided the Union with voluntary bargaining and statutory recognition against Cordant, the workers’ employer.
6. Even if Article 11 were engaged, the restrictions were justified. They pursued the protection of the rights and freedoms of workers, unions and employers, orderly bargaining and the economic freedom to organise activities through outsourcing. The statutory balance fell within the State’s wide margin of appreciation. No less intrusive alternative would achieve those objectives without creating competing and potentially chaotic bargaining arrangements.

First-instance judicial review proceedings. The judgment records that Lambert J granted permission on 20 July 2018 and directed that the two claims be heard together. The High Court (Administrative Court) dismissed the claim.