Preview: Every worker shall have the right to be represented at work by a trade union

EVERY WORKER SHALL HAVE THE RIGHT TO BE REPRESENTED AT WORK

BY A TRADE UNION

BY JOHN HENDY QC

THE

INSTITUTE OF

EMPLOYMENT RIGHTS

John Hendy QC is a practicising barrister specialising in trade union and employment law. He is Chairman of the Institute of Employment Rights and Standing Counsel to the National Union of Miners, National Union of Journalists and Prison Officers Association.

This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.

ISBN 1 873271 57 3 February 1998 published by the Institute of Employment Rights 160 Falcon Road London SW11 2LN 0171 738 9511 e-mail ier@gn.apc.org designed by Megan Dobney 0181 761 7532 printed by Upstream (TU) 0171 358 1344 ÂŁ8 for trade unions and students ÂŁ30 others THE

INSTITUTE OF

EMPLOYMENT RIGHTS

every worker shall have the right to be represented at work by a trade union 1

executive summary

by John Hendy QC

i

contents

executive summary

iv

introduction

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topicality

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CHAPTER 1

the problem the scale of the problem in the UK the accompanying legal restraints on unions the need for the right to be represented at work

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CHAPTER 2

rights to representation, consultation and recognition in the UK a right to representation – what does it mean? the right to representation in UK law a right to consultation – what does it mean? the right to consultation in UK law a right to recognition – what does it mean? the right to recognition in UK law

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the right to union representation

CHAPTER 3

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the right to representation in international law the rights to representation, consultation and recognition in international law the right to be represented by a trade union the right to representation in trade agreements

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CHAPTER 4

issues arising issues arising from the right to representation whose right? the union representative qualification by numbers subject matter a right against whom? the interrelationship of rights to representation, consultation and recognition enforcement injunctions contempt of court receivership arbitrated terms in contracts of employment a battery of measures

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conclusion

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endnotes

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recent publications

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contents

CHAPTER 5

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executive summary

The right to be represented in Court goes without saying. Yet the right to be represented at work is completely unacknowledged in UK law. The landmark decision in 1995 in Associated Newspapers v Wilson, Associated British Ports v Palmer effectively decided that, in UK law, the right to be a union member meant no more than the right to hold a union card, and certainly did not imply any right to be represented at work by a trade union.

This book seeks to demonstrate that UK law on this point is itself in breach of international law and the UK’s international obligations.

The United Nations Declaration of Human Rights and associated Conventions, the International Labour Organisation Conventions 87 and 98, the Council of Europe’s European Convention on Human Rights and its Social Charter of 1961, all binding on the UK, each points to a right vesting in every worker to be represented at work by his or her union on any matter arising from or in the course of work.

the right to union representation

The conclusion is that UK law must be changed to give to workers explicitly this fundamental and straightforward right, a right which derives from the right to be a union member.

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Such a right does not cut across the proposed (or any form of) right to recognition but would help to underpin it (particularly for workers who do not have the necessary 50 per cent plus one support for recognition). In the absence of a right to recognition, the right of union representation would be yet more important.

The book reviews recent research to show the pressing need for union representation. It also analyses the related concepts of repre-

executive summary

sentation, consultation and recognition at work and briefly describes the current situation in the UK in relation to them, before dealing with the heart of the matter: union representation in international law. The book concludes by looking at some of the difficult issues raised by laws in this field, for example how these rights may be enforced.

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The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status.

The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy, Sir Peter Pain, and the general secretaries of Britain’s largest trade unions.

The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications.

The Institute provides tools of analysis and debate for the trade union movement in the area of labour law.

We are not a campaigning organisation.

THE RIGHT TO UNION REPRESENTATION BY JOHN HENDY QC

WHAT IS THE INSTITUTE?

The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively.

If you are interested in subscribing or would like to know more about the Institute, then contact us at 160 Falcon Road, London SW11 2LN, 0171 738 9511.

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INSTITUTE OF EMPLOYMENT RIGHTS

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