UNITE the Union v United Kingdom - 65397/13 (Admissibility) [2016] ECHR 1150 (26 May 2016)

FIRST SECTION

DECISION

Application no. 65397/13
UNITE THE UNION
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 3 May 2016 as a Chamber composed of:

          Mirjana Lazarova Trajkovska, President,
          Kristina Pardalos,
          Linos-Alexandre Sicilianos,
          Paul Mahoney,
          Aleš Pejchal,
          Robert Spano,
          Armen Harutyunyan, judges,
and Abel Campos, Section Registrar,

Having regard to the above application lodged on 14 October 2013,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Unite the Union, is an independent trade union based in London. It was represented before the Court by Mr R. Arthur of Thompsons Solicitors, Bristol, and by Mr J. Hendy QC and Mr M. Ford QC, barristers practising in London.

A. The circumstances of the case

1. Background facts

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant represents around 18,000 members in the agricultural sector. It is the only significant trade union in that sector.

4. From 1917 until 2013 (with a short gap from 1921 to 1924) minimum wages and conditions in the agricultural industry were set by the Agricultural Wages Board of England and Wales (“AWB”), a body established by statute. The AWB was composed of eight persons representing employers, eight persons representing workers and up to five other persons appointed by the relevant Minister. Members of the AWB representing employers were nominated by the Council of the National Farmers’ Union. The members of the AWB representing employees were most recently nominated by the applicant.

2. The abolition of the AWB

(a) The consultation exercise

5. In July 2010 the Government announced their intention to abolish the AWB. Before taking a final decision, they decided to seek the views of interested parties. They therefore launched a consultation which ran from 16 October 2012 to 12 November 2012.

6. The consultation paper set out in some detail the reasons why the Government proposed abolition of the AWB. First, the Government considered that a separate employment regime for agricultural workers was no longer necessary. The paper explained that agricultural wages legislation was based on the circumstances prevailing in the immediate aftermath of the World Wars, when agricultural workers were often isolated, immobile and dependent on the local landowner for their livelihoods and homes and needed the specific protection of a body which could determine wage rates on their behalf. Employment legislation and protection for all workers had improved dramatically since then. In particular, a national minimum wage and statutory holiday entitlement were now guaranteed by legislation. Further, social and technological changes meant that while some agricultural workers still lived and worked in isolated rural areas, they were likely to be far more mobile and have better communications through mobile telephones and the Internet. The Government further pointed out that twenty-six other wage councils covering a range of different sectors of the economy and with responsibility for fixing a statutory minimum wage in those sectors had already been abolished by the Employment Rights Act 1993. At that time it had been decided that the AWB should continue for the time being, but the then Government had indicated that its future should be kept under close review.

7. There was also, according to the Government, a need to simplify legislation covering those working in the agricultural section. Diversification of practices meant that employers were required to consider whether specific employees fell within the provisions concerning agricultural workers or benefited instead from general employment legislation. This created a significant administrative burden.

8. The Government were further of the view that the requirement for farming businesses to operate dual regimes (one under the AWB order and another for employees not falling within the scope of the order) acted as a disincentive for on-farm packing and processing businesses to use home-grown produce and encouraged the use of food from abroad. This hindered the development of farming businesses and restricted job opportunities for workers.

9. A final argument in favour of abolition was that the agricultural wages legislation inhibited modern employment practices, for example, by dissuading businesses from offering annual salaries because the way the agricultural minimum wage was enforced meant that an agricultural worker was not allowed to receive less than the agricultural minimum wage for the hours that he has worked in each “pay reference period”. Abolition would lift administrative and regulatory burdens for farm businesses by removing the additional and specific rights for agricultural workers that were not reflected in wider employment legislation. The Government considered that the AWB also resulted in a lack of flexibility for parties to reach their own agreements which suited their particular circumstances.

10. A total of 946 responses to the consultation were received from a range of industry organisations, unions, charities and individuals. In response to questions asking whether respondees agreed (i) that employment in the agriculture sector should be simplified and (ii) that agricultural workers should be brought within the same employment regime as everyone else, forty-two and thirty-six per cent of respondees agreed with (i) and (ii) respectively, and seven and eighteen per cent disagreed. The remaining respondees gave no clear indication. However, only thirty-seven per cent of respondees supported abolition of the AWB, compared to sixty-one per cent who did not.

11. On 19 December 2012 the Government published a final impact assessment presenting empirical data on the impact of the abolition of the AWB on wages and other employment conditions. The impact assessment repeated the arguments set out in the consultation paper (see paragraphs 6-9 above). It further noted that at least fifty-eight per cent of permanent agricultural workers were paid more than the minimum wage set by the AWB. This, the paper considered, indicated that farmers and workers were already negotiating their own agreements and that a move to the national minimum wage would not prevent higher wages being agreed. Existing workers in the agricultural sector would still have a contractual right to the terms and conditions agreed in the last AWB order under the new arrangements. The downward pressure on wages caused by a move to the national minimum wage was also likely to be mitigated by a skills shortage in the sector as well as an ageing workforce, both of which would create demand for workers and skills over the next ten years.

12. The impact assessment also considered the impact of abolition on annual leave and sick pay. It noted that new workers entering the agricultural sector would be entitled to fewer annual leave days under the statutory holiday entitlement, thus representing a saving for farmers. The best estimate for how this could be measured in financial terms was a transfer of 83.8 million pounds sterling (“GBP”) from workers to farmers over a ten-year period. The best estimate for the impact of reductions in sickness pay over the same period was a transfer of GBP 4.4 million.

13. In terms of the larger financial implications of abolition, the assessment estimated the rough cost to the farming industry of agricultural employers familiarising themselves with the AWB order each year to be GBP 542,465. In terms of running costs, the AWB itself cost GBP 179,000 to run, excluding the cost of its secretariat. Savings reaped from the abolition of the AWB had to be offset against the likely additional costs of the Low Pay Commission and Her Majesty’s Revenue and Customs because of increased workload from the transfer of agricultural workers to the national minimum wage. Overall, estimates showed a net gain in respect of running costs increasing each year following abolition of the AWB and stabilising at around GBP 162,000 six years after abolition.

(b) The Enterprise and Regulatory Reform Bill

14. On 20 December 2012 the Government introduced an amendment to the Enterprise and Regulatory Reform Bill which, if approved, would abolish the AWB.

15. On 19 February 2013 the Government provided a supplementary human rights memorandum to the Parliamentary committee responsible for scrutinising the human rights implications of the Bill. In the memorandum, the Government disagreed with the suggestion that the AWB constituted a process of bipartite collective bargaining. They argued that the process involved all AWB members, including the independent members, with discussions between members and representations from third parties leading to a final decision by the AWB as a whole. They referred to this Court’s case-law and expressed the view that Article 11 did not impose a positive obligation on States to provide for collective bargaining but rather left to States the free choice as to how to ensure that a trade union was able to be heard. In any case, the abolition of the AWB would not prevent employers and employees from engaging in collective bargaining or affect the right of agricultural workers to belong to unions.

16. The Bill was adopted and received Royal Assent on 25 April 2013. Section 72(1) of the resulting Enterprise and Regulatory Reform Act 2013 (“the 2013 Act”) abolished the AWB.

17. Following the enactment of the 2013 Act, but prior to the entry into force of section 72, the National Farmers’ Union made clear at meetings of the AWB on 6 May and 19 June 2013 that it was not prepared to bargain collectively in respect of agricultural workers’ terms and conditions, nor was it prepared to meet the applicant to discuss a successor mechanism to the AWB.

18. Section 72(1) entered into force on 25 June 2013. The AWB was formally abolished on 30 September 2013.

B. Relevant domestic law and practice

1. The history of trade boards

19. With the enactment of the Trade Boards Act 1909, the first four trade boards in England and Wales were established. The boards had the power to set legally-enforceable minimum wages. By 1921 there were over forty trade boards covering three million workers. The Wages Councils Act 1945 transformed the trade boards into wages councils. In the 1960s and 1970s, several wages councils covering around half a million workers were abolished. All remaining wages councils, with the exception of the AWB, were abolished in 1993 following the enactment of the Employment Rights Act 1993.

2. The creation and functioning of the AWB

20. The AWB was created by the Corn Production Act 1917. It was briefly abolished in 1921 but re-established in 1924. The legislation was consolidated in the Agricultural Wages Act 1948 (“the 1948 Act”). As noted above, the Board was composed of eight persons representing employers, eight persons representing workers in agriculture and up to five persons appointed by the Minister. One of the members appointed by the Minister was designated by the latter as chairman of the AWB.

21. Pursuant to section 3 of the 1948 Act, the AWB had the power to make an order in respect of agricultural workers which fixed minimum rates of wages, directed holidays to be allowed and fixed other terms and conditions of employment. The order took effect from the date on which the AWB agreed to the terms and overrode any contractual terms inconsistent with it, without prejudice to any agreement to pay a higher rate of pay.

22. Each member of the AWB had one vote. If the number of worker and employee representatives at any meeting was unequal, members from the side with the highest number were required to refrain from voting to ensure equality. The chairman had the casting vote. Matters were determined by majority vote so if the industrial parties (that is, the employers’ and workers’ representatives) agreed, the independent members had insufficient votes to block their decision. However, if the industrial parties disagreed, the votes of the independent members were decisive.

23. In practice, the AWB met each year to make an order, valid from October, setting the minimum wages and other terms of employment of agricultural workers. The last order was made in 2012. The general procedure was as follows. In February the applicant sent a “Heads of Claim” letter setting out its demands. A full claim followed in writing. The National Farmers’ Union provided a written response. At an AWB meeting in May, both parties set out their cases orally. Subsequent AWB meetings took place to address areas of disagreement, with adjournments for bilateral negotiations. This often led to agreement between the industrial parties. Sometimes the independent members met each industrial party separately in an effort to conciliate and mediate. Once further negotiations appeared fruitless, a full AWB session took place and a vote was held.

3. The law concerning collective bargaining

24. The Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) explains the legal status of collective agreements. Section 178(1) of the Act defines “collective agreement” as any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified in section 178(2); and “collective bargaining” as negotiations relating to those matters.

25. The matters specified in section 178(2) are (a) terms and conditions of employment, or the physical conditions in which any workers are required to work; (b) engagement, termination or suspension of employment or the duties of employment; (c) allocation of work or the duties of employment between workers; (d) matters of discipline; (e) a worker’s membership of a trade union; (f) facilities for officials of trade unions; and (g) machinery for negotiation or consultation relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

26. Section 179(1) of the 1992 Act provides that a collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement (a) is in writing, and (b) contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract.

27. In George v. The Ministry of Justice [2013] EWCA Civ 324, the Court of Appeal considered section 179 of the 1992 Act and explained that in modern industrial relations, it was unusual to find provisions in a collective agreement expressing an intention that all or any part of it was intended to be a legally-enforceable contract. It noted that the question that arose more regularly was whether the terms of a collective agreement, which was not in itself a legally enforceable contract, had become incorporated into a contract of employment between the employer and employee so as to be legally enforceable between them.

28. Schedule A1 of the 1992 Act allows an independent trade union to request from the employer recognition to be entitled to conduct collective bargaining on behalf of a group of workers. The right to make such a request applies only where the employer employs at least twenty-one workers. In the event of a refusal by the employer, an eligible trade union may apply to the Central Arbitration Committee (an independent body with statutory powers) for a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers.

4. Data concerning the agricultural sector

29. In June 2010 around 350,000 people worked in the agricultural sector in England and Wales. Around forty per cent were employed workers who fell within the scope of the AWB orders. Only one per cent of employers employed more than ten people. The number of employers who employed twenty-one people or more was almost zero.

5. Relevant general employment legislation

30. The National Minimum Wage Act 1998 provides for a national minimum wage binding on all employers regardless of sector. The rate is set by the Secretary of State in regulations.

31. The European Working Time Directive (2003/88/EC) fixes a maximum weekly working time and requires workers to be given a minimum period of paid annual leave. The Directive was implemented in the United Kingdom by the Working Time Regulations 1998, as amended.

C. European and international legal instruments

1. The European Social Charter 1961

32. The European Social Charter was adopted in 1961. In its preamble, it explains the background to and reasons for its adoption:

“Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms;

Considering that in the European Convention for the Protection of Human Rights and Fundamental Freedoms ... and the Protocol thereto ... the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified;

Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin;

Being resolved to make every effort in common to improve the standard of living and to promote the social well being of both their urban and rural populations by means of appropriate institutions and action,

Have agreed as follows:”

33. The United Kingdom ratified the European Social Charter in 1962. It has not ratified the revised European Social Charter of 1996, which contains a number of additional rights.

34. The right to bargain collectively appears in both the original and revised Charters in Article 6, which provides:

“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:

1. to promote joint consultation between workers and employers;

2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;

and recognise:

4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”

35. In its statement of interpretation on Article 6 § 1 in the context of its first reporting exercise covering the years 1965-1967, the European Committee of Social Rights said:

“The Committee interprets this provision as meaning that any Contracting State which has accepted it is bound to take steps to promote joint consultation between workers and employers or their organisations on all matters of mutual interest and on the following questions among others: productivity, efficiency, industrial health, safety and welfare.”

36. In its statement of interpretation on Article 6 § 1 in the context of its 1974-1975 reporting exercise, the Committee said that the expression “joint consultation” was to be interpreted as being applicable to all kinds of consultation between both sides of industry, with or without any government representatives, on condition that both sides of industry have an equal say in the matter.

37. The Committee commented on Article 6 § 1 in its decision on the merits of 9 May 2005 in Centrale générale des services publics (CGSP) v. Belgium (Complaint No. 25/2004), where it said:

“41. The Committee interprets Article 6 § 1 to mean that States must take positive steps to encourage consultation between trade unions and employers’ organisations. If such consultation does not take place spontaneously, the State should establish permanent bodies and arrangements in which unions and employers’ organisations are equally and jointly represented ... These bodies and arrangements must allow the social partners to discuss and submit their views on all issues of mutual concern. In the case of officials bound by regulations laid down by the public authorities, such consultation will particularly concern the drafting and implementation of these regulations ... The Charter, and in particular Article 6 § 1, cannot be regarded as permitting interference with the rules for drafting legislation as provided for by constitutional provisions. This process is the prerogative of sovereign States.”

38. In its statement of interpretation on Article 6 § 2 in the context of its 1965-1967 reporting exercise, the Committee said:

“According to the Committee’s interpretation, in accepting the terms of this provision, the Contracting Parties undertake not only to recognise, in their legislation, that employers and workers may settle their mutual relations by means of collective agreements, but also actively to promote the conclusion of such agreements if their spontaneous development is not satisfactory and, in particular, to ensure that each side is prepared to bargain collectively with the other. Where adequate machinery for voluntary negotiation is set up spontaneously, however, the government in question is not, in the Committee’s opinion, bound to intervene in the manner prescribed in this paragraph.”

2. The EU Charter of Fundamental Rights

39. Article 28 of the European Union’s Charter of Fundamental Rights provides as follows:

“Right of collective bargaining and action

Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”

3. Conventions of the International Labour Organisation (“ILO”)

40. The relevant article of the ILO Right to Organise and Collective Bargaining Convention 1949 (No. 98), ratified by the United Kingdom in 1950, reads as follows:

“Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”

41. The ILO also adopted the Minimum Wage Fixing Machinery (Agriculture) Convention 1951 (No. 99) and Holidays with Pay (Agriculture) Convention 1952 (No. 101) to regulate aspects of agricultural labour. The United Kingdom ratified these conventions in 1953 and 1956 respectively but denounced both in 1994. In particular, State parties to the 1951 Convention undertake to create or maintain adequate machinery whereby minimum rates of wages can be fixed for agricultural workers. The machinery must involve employers and workers in equal numbers. Parties to the 1952 Convention agree to make provision, by collective agreement if appropriate, for holidays with pay for agricultural workers. The Convention imposes a requirement for consultation and participation of employers and workers in the regulation of holidays with pay. Convention No. 99 has been ratified by fifteen Council of Europe States and Convention No. 101 by eleven.

42. State parties to the ILO Collective Bargaining Convention 1981 (No. 154) undertake to promote collective bargaining. The United Kingdom has not ratified this Convention but it has been ratified by twenty-four member States of the Council of Europe.

43. The ILO’s Governing Body has identified eight conventions as “fundamental”, covering subjects that are considered to be fundamental principles and rights at work, including freedom of association and the effective recognition of the right to collective bargaining. Convention No. 98 is one of the eight fundamental ILO Conventions. Convention Nos. 99, 101 and 154 are not.

COMPLAINT

44. The applicant complained that it was denied the effective right to collective bargaining, which was an essential element of Article 11 of the Convention, in the agricultural sector. It explained that, in the absence of the AWB, there was no effective legal mechanism for promoting or requiring collective bargaining.

THE LAW

45. The applicant argued that the abolition of the AWB infringed its right to engage in collective bargaining protected by Article 11 of the Convention, which provides:

“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 ...”

A. The applicant’s submissions

46. The applicant emphasised that Article 11 safeguarded the right of a trade union to take collective action to protect its members’ interests. International instruments were relevant to the interpretation of the Convention. In light of these instruments and the objectives of Article 11, the Court had consistently rejected a narrow interpretation of the Article. Thus, Article 11 guaranteed not merely the narrow right to form and join a trade union but also other rights, a number of which were described as “essential elements” of that basic right. These essential elements included the right to collective bargaining (citing Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008).

47. In the applicant’s submission, the AWB constituted a forum of collective bargaining in the agricultural sector and was an essential means for the applicant to promote and secure the interests of its members. The abolition of the AWB therefore amounted to an interference with one of the essential elements protected by Article 11. The applicant accepted that the interference was prescribed by law and was aimed at protecting the rights and freedoms of others, namely employers. However, it contended that the abolition of the AWB was not necessary in a democratic society, that there was no pressing social need for its abolition and that it was not proportionate. The rationale for abolition was at best based on economic efficiency and was at worst an argument for economic redistribution from farmworkers to employers. There were no compelling and convincing reasons for the abolition of the AWB that were relevant and sufficient. There was no adequate evidence that its existence involved any, or any significant, interference with the rights and interests of employers, employers’ associations, employees or unions or caused any real problems. The consultation exercise had failed to show a clear majority in favour of abolition (see paragraph 10 above). To the extent that the AWB interfered with the free market in labour, such interference was proportionate to the need to protect the economic interests of agricultural workers and their Article 11 rights.

48. The applicant argued that States also owed a positive obligation under Article 11 to secure the rights set out in that Article, including the right to collective bargaining. In the context of the agricultural sector, characterised by thousands of employers who each employed very few employees, domestic law provided no other means of protecting the right to collective bargaining. The statutory machinery in place under the 1992 Act (see paragraph 28 above) was, in practice, inaccessible in the agricultural sector given the fact that workers were dispersed across numerous small employers. Even in cases where the legislation was applicable and recognition of a union was obligatory, there was no real regulation of the process of collective bargaining itself and collective bargaining remained free and voluntary. Further, the Act applied to recognition by a single employer so was incapable of regulating recognition of unions on an industry-wide basis. The applicant emphasised that the Convention was to be interpreted in a manner that rendered its rights practical and effective. Although Contracting States were, in principle, free to decide what measures to take to comply with Article 11, they had a limited margin of appreciation in this area (referring to Demir and Baykara, cited above, § 119) and Article 11 did not permit restrictions which rendered the right to trade union freedom devoid of any substance. Where the right at stake was one of the essential elements of the right of association, the only latitude to States was the possibility of granting special status to a representative trade union or in specific circumstances to limit the rights of civil servants.

49. In the applicant’s view, the abolition of the AWB had made the right to collective bargaining devoid of substance in the agricultural sector. Agricultural employers refused to engage in voluntary collective bargaining and, in any case, there was no proper enforcement of collective agreements. The totality of the law in the United Kingdom failed to give protection to the right to collective bargaining in the agricultural sector, for the reasons given above (see paragraph 48 above). Voluntary collective bargaining was virtually non-existent since it was impractical for unions to gain recognition from so many small employers.

50. The applicant pointed to the provisions of the European Social Charter, the Charter of Fundamental Rights and various ILO Conventions (see paragraphs 32-43 above). It contended that they were relevant to the interpretation of Article 11 even where they had not been ratified by the United Kingdom. Article 11, interpreted in light of Article 6 of the European Social Charter, required State action to restore both the machinery of collective bargaining on an industry-wide scale and the machinery to enforce collective agreements reached, in order to enable agricultural workers and their union to exercise their right to collective bargaining. It was clear that the abolition of the AWB had breached Articles 6 §§ 1 and 2 of the European Social Charter as well as ILO Convention Nos. 98, 99 and 101.

51. Finally, the applicant argued that there was no effective remedy for it to exhaust because its complaint concerned primary legislation, which could not be challenged in the United Kingdom. While the Human Rights Act 1998 required courts to read-down legislation in a manner compatible with the Convention wherever possible, this was clearly not an option here given the unambiguous terms of section 72 of the 2013 Act (see paragraph 16 above). As for the possibility of seeking a declaration that the legislation was incompatible with the Convention, the applicant argued that this could not be considered an “effective remedy”, referring to this Court’s judgment in Burden v. the United Kingdom [GC], no. 13378/05, ECHR 2008.

B. The Court’s assessment

1. Compliance with Article 35 § 1 of the Convention

52. The applicant has failed to bring any domestic proceedings to challenge the abolition of the AWB, relying on this Court’s position as regards the possibility of seeking a declaration of incompatibility set out in its judgment in Burden, cited above. However, the Grand Chamber in Burden, § 43, was quite clear that its finding that the applicants in that case were not obliged to seek a declaration of incompatibility did not exclude the possibility that, at some time in the future, applicants would be required first to exhaust this remedy before making an application to the Court. The Court is not required in the instant case to consider whether that moment has been reached since, in any case, the applicant trade union’s application is manifestly ill-founded for the reasons given below.

2. The alleged violation of Article 11 of the Convention

(a) The general principles

53. Article 11 of the Convention safeguards a trade union’s freedom to protect the occupational interests of its members by collective action, the conduct and development of which the Contracting States must both permit and make possible (see Demir and Baykara, cited above, § 140). In substance, it affords members of a trade union the right for their union to be heard with a view to protecting their interests and requires national law to enable trade unions, in conditions not at variance with Article 11, to strive for the protection of their members’ interests. However, it does not guarantee them any particular treatment by the State (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts); and Demir and Baykara, cited above, § 141).

54. According to the Court’s case-law, the right of association in the trade union context has a number of essential elements. These include the right to form and join a trade union, the prohibition of closed-shop agreements, the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members and, in principle, the right to bargain collectively with the employer (see Demir and Baykara, cited above, §§ 145 and 154, and the further references cited there). As regards the latter, it should be understood that States remain free to organise their systems so as to grant special status to representative trade unions if appropriate (see Demir and Baykara, cited above, § 154).

55. To be considered necessary in a democratic society, it must be shown that an interference with a right protected by Article 11 corresponded to a “pressing social need”, that the reasons given by the national authorities to justify it were relevant and sufficient and that the interference was proportionate to the legitimate aim pursued (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 83, ECHR 2014). In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the starting point is that Contracting States enjoy a wide margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members are secured (see Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006-I; and Sindicatul “Păstorul cel Bun”, cited above, § 133). However, in some circumstances, that margin may be reduced (see Sørensen and Rasmussen, cited above, § 58). The Court has recently explained that the breadth of the margin of appreciation depends on, among other things, the nature and extent of the restriction of the trade union right at issue, the object pursued by the contested restriction, the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right and the degree of common ground between member States of the Council of Europe or any international consensus reflected in the apposite international instruments (see National Union of Rail, Maritime and Transport Workers, cited above, §§ 86-87). As to the latter factor, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned; it is sufficient that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see Demir and Baykara, cited above, §§ 67-86).

56. Although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights it protects, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights. The boundaries between the State’s positive and negative obligations do not lend themselves to precise definition but the applicable principles are similar. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see Sindicatul “Păstorul cel Bun”, cited above, §§ 131-132).

(b) Application of the general principles to the facts of the case

57. The Court notes at the outset that the applicant has not been prevented from acting as a trade union to protect the general occupational interests of its members. It continues to enjoy rights associated with its status as a trade union. Its only complaint concerns the impact of the abolition of the AWB on its particular right to engage in collective bargaining in the agricultural sector, which right, it contends, is protected by Article 11 of the Convention.

58. The case-file shows that the respondent Government, in the context of the passage through Parliament of the Enterprise and Regulatory Reform Bill, did not agree that the AWB provided a forum for collective bargaining (see paragraph 15 above). However the Court is prepared to proceed on the basis that the AWB did provide a forum for collective bargaining. Although independent members belonging to neither of the industrial parties also made up the composition of the AWB, it is noteworthy that the approach of the Committee charged with interpreting the European Social Charter is not to exclude from the definition of “joint consultation”, in the context of the exercise of the right to bargain collectively, fora in which third parties are present, provided that the industrial parties are represented in equal numbers (see paragraph 36 above). The relevant legislation in the United Kingdom required that there be actual parity between the two industrial groups in any given negotiation: if the number of employer and worker representatives at any meeting was unequal, it obliged members from the side with the highest number to refrain from voting (see paragraph 22 above). The applicant’s complaint can therefore be treated as concerning the abolition of a statutory and mandatory mechanism of collective bargaining. Such a complaint may be said to fall within the scope of Article 11 of the Convention.

59. The applicant has argued that the abolition of the AWB amounted to an interference with its right to engage in collective bargaining, an essential element of the freedom of association accorded to trade unions. The Court is not persuaded by this argument. In Demir and Baykara, cited above, the Court found an interference with the applicants’ trade-union freedom as a result of the absence of legislation necessary to give effect to the provisions of international labour conventions ratified by Turkey and a court judgment annulling the voluntary collective agreement entered into by the applicants on account of that absence. By contrast, in the present case the United Kingdom does not restrict employers and trade unions from entering into voluntary collective agreements. Legislation, in the form of section 179 in particular of the 1992 Act, is in place to govern the enforceability of collective agreements (see paragraph 26 above). Even where the conditions in section 179 are not satisfied, a collective agreement may nonetheless be enforceable in respect of a particular individual where he succeeds in showing that its terms have become incorporated into his employment contract (see paragraph 27 above). Thus the applicant is not prevented from exercising its right to engage in collective bargaining and the facts of the case are far removed from those at issue in Demir and Baykara.

60. The Court is accordingly of the view that the applicant’s complaint should be viewed from the perspective of the respondent State’s positive obligations, and in particular whether the respondent State is obliged to have in place a mandatory, statutory forum for collective bargaining in the agricultural sector in order to comply with its Article 11 obligations. The applicant argued that the margin of appreciation was a limited one, relying on Demir and Baykara, cited above, § 119 (see paragraph 48 above). However, as the Court explained in National Union of Rail, Maritime and Transport Workers, cited above, § 86, the Court in that case was examining a very far-reaching interference with freedom of association. In the present case, by contrast, the question concerns the extent of the State’s positive obligation in the area of collective bargaining. As the Court has already noted (see paragraph 55), the social and political issues involved in achieving a proper balance between the interests of labour and management are of a sensitive nature. The starting point is, therefore, that the United Kingdom enjoys a wide margin of appreciation in determining whether a fair balance has been struck between the protection of the public interest in the abolition of the AWB and the applicant’s competing rights under Article 11 of the Convention.

61. The applicant referred extensively to the European Social Charter, the EU Charter on Fundamental Rights and several ILO Conventions concerning the right to bargain collectively, particularly in the agricultural sector, in order to show an international consensus in favour of its position (see paragraph 50 above). However, the Court does not consider that these instruments narrow the margin of appreciation available to the respondent State. First, while the European Social Charter may provide some guidance for how the trade-union rights inherent in Article 11 of the Convention are to be interpreted, and in particular how terms used in the area of social rights are to be understood, States’ obligations under Article 6 of the European Social Charter cannot be considered synonymous with the positive obligations which arise under the Convention. As its preamble illustrates, the Charter was adopted as a counterpart to the Convention and was intended to guarantee social and economic rights which had been largely omitted from the scope of the Convention and its First Protocol (see paragraph 32 above). Further, the Charter itself does not contain any provisions stipulating that States must put in place mandatory collective bargaining bodies. It imposes an obligation on States to “promote” machinery for “voluntary negotiations” between employers and workers (see paragraph 34 above). The European Committee of Social Rights has clarified that where a State has put in place adequate machinery for voluntary collective bargaining, its obligation actively to promote the conclusion of such agreements does not necessarily apply (see paragraph 38 above).

62. Second, as far as the EU Charter is concerned, it provides a right for workers and employers to negotiate and conclude collective agreements (see paragraph 39 above). It does not impose any obligation on States to ensure that collective bargaining is conducted or even to promote the exercise by workers or employers of this right.

63. Finally, of the ILO Conventions to which the applicant has referred, only one, No. 98, is considered by the ILO’s governing body to cover fundamental principles and rights (see paragraph 43 above) and that Convention has been ratified by the United Kingdom. While calling for States to take measures to “encourage and promote” collective bargaining, the Convention plainly leaves a great deal of discretion to the States as to which measures are “appropriate to national conditions” or “necessary” (see paragraph 40 above). Further, it does not insist that such measures be mandatory. The other three Conventions to which the applicant referred are clearly of a more technical nature intended not merely to secure the fundamental right of workers to engage in collective bargaining but to regulate in some detail contractual terms and conditions in the agriculture sector or collective bargaining processes more generally (see paragraphs 41-42 above). Bearing in mind the nature and purpose of these Conventions, the existence of any “international consensus” to be bound by the standards they contain is of lesser significance to determining the breadth of the margin of appreciation under Article 11 in the present case. In any case, with the exception of Convention No. 154 on collective bargaining, the number of Member States of the Council of Europe which have ratified them is clearly insufficient to show anything approaching a “consensus”. Even in the case of Convention No. 154, only around half of the Council of Europe Member States are parties such that in its regard also no “common ground” or “consensus” can be said to have been established. The margin of appreciation to be applied is accordingly a wide one.

64. The abolition of the AWB was preceded by research into pay and conditions in the agricultural sector and a public consultation, in the context of which various explanatory documents were prepared (see paragraphs 6-15 above). The consultation paper put forward a number of reasons tending to support the AWB’s abolition, all of which were relevant to the decision where the balance between competing interests lay (see paragraph 6-9 above). In particular, it was noted that the AWB was the only outstanding wage council, the remaining wage councils in other sectors of industry having been abolished twenty years earlier (see paragraph 6 above). In their impact assessment, the Government pointed out that the majority of farm workers were already being paid more than the AWB minimum, which they saw as an indication that a number of agricultural workers were already negotiating their own agreements. They assessed the financial implications of abolition on workers and farmers and the net savings in terms of the AWB’s operating costs (see paragraphs 11-13 above). In their supplementary human rights memorandum, the Government considered the human rights implications of the proposal, including the extent of their positive obligations in the area of collective bargaining (see paragraph 15 above), this being a factor which carries some weight for the Court’s assessment as to the fair balance to be struck between the competing interests at stake in the light of the principle of subsidiarity.

65. It is significant that, as noted above (see paragraph 59), the applicant is not prevented from engaging in collective bargaining. The circumstances in which collective agreements are deemed to be legally enforceable in the United Kingdom are set out in section 179 of the 1992 Act (see paragraph 26 above). The conditions essentially require parties to confirm their intent to be bound by the collective agreement and stipulate that the agreement be reduced to writing. These conditions do not appear to be unreasonable or unduly restrictive. Furthermore, it is possible under English law for the terms of a collective agreement which is not, itself, legally enforceable to be incorporated into an individual employment contract and thus become indirectly enforceable (see paragraph 27 above). Moreover, there are circumstances, set out in the 1992 Act, whereby a union has the right to be entitled to conduct collective bargaining on behalf of a group of workers (see paragraph 28 above). While, as the applicant pointed out, the legislation is of limited assistance in the agricultural sector given the dispersal of workers among employers which renders the provision inapplicable in most cases (see paragraph 29 above), it nonetheless represents a measure intended to encourage and promote collective bargaining across industry in general. In the absence of any information in the case-file as to the reasons for the applicability restrictions in the 1992 Act, it cannot be assumed that they are unjustified or otherwise unsuitable. Finally, even accepting the applicant’s submission that voluntary collective bargaining in the agricultural sector is virtually non-existent and impractical, this is not sufficient to lead to the conclusion that a mandatory mechanism should be recognised as a positive obligation. The applicant remains free to take steps to protect the operational interests of its members by collective action, including collective bargaining, by engaging in negotiations to seek to persuade employers and employees to reach collective agreements and it has the right to be heard. As noted above (see paragraphs 61-63), the European and international instruments to which the applicant referred, as they currently stand, do not support its view that a State’s positive obligations under Article 11 extend to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector.

66. Bearing in mind the wide margin of appreciation in this area, the Court is not satisfied that, in deciding to abolish the AWB, the respondent Government failed to observe the positive obligations incumbent on them under Article 11 of the Convention. It cannot be said that the United Kingdom Parliament lacked relevant and sufficient reasons for enacting the contested legislation or that the abolition of the AWB failed to strike a fair balance between the competing interests at stake. No violation of Article 11 is disclosed and the application must be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 May 2016.

Abel Campos Mirjana Lazarova Trajkovska
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> UNITE the Union v United Kingdom - 65397/13 (Admissibility) [2016] ECHR 1150 (26 May 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1150.html Cite as: [2016] ECHR 1150, 63 EHRR SE7, (2016) 63 EHRR SE7, [2017] IRLR 438