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Membership

Cheall v United Kingdom (decision), 13 May 1985 [ECtHR]

Case no 10550/83

The applicant who was expelled from his trade union (A.P E X.) pursuant to a decision of the disputes committee of the T.U.C. complains of an unjustified interference with his right to join a trade union in breach of Article I I of the Convention ...

The Commission recalls that the right to form and join trade unions is a special aspect of freedom of association which protects, first and foremost, against State action. The State may not interfere with the forming and joining of trade unions except on the basis of the conditions set forth in Article I 1 para . 2 (see Young, James and Webster v. United Kingdom,. Comm. Report 14.12.79, para. 162, Eur. Court H.R., Series B no. 39, p. 45).

The question that arises in the present case, however, concerns the extent to which this provision obliges the State to protect the trade union member against measures taken against him by his union. In the Commission's view the right to form trade unions involves, for example, the right of trade unions to draw up their own rules, to administer their own affairs and to establish and join trade union federations . Such trade union rights are explicitly recognised in Articles 3 and 5 of I.L .O. Convention No. 87 which must be taken into account in the present context . . .

Accordingly trade union decisions in these domains must not be subject to restrictions and control by the State except on the basis of Article II para  2. As a corollary,  such decisions must be regarded as private activity for which, in principle, the State cannot be responsible under the Convention.

The right to join a union "for the protection of his interests" cannot be interpreted as conferring a general right to join the union of one's choice irrespective of the rules of the union. In the exercise of their rights under Article 11 para. 1, unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union. The protection afforded by the provision is primarily against interference by the State

Nonetheless for the right to join a union to be effective the State must protect the individual against any abuse of a dominant position by trade unions (see Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 25, para. 63). Such abuse might occur, for example, where exclusion or expulsion was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship such as job loss because of a closed shop.

In the present case the applicant was expelled from his union (A.P.E.X..) pursuant to a decision of the T.U.C. disputes committee to the effect that A.P.E.X. had not complied with principle 2 of the Bridlington principles. These principles had been established by the T.U.C. to prevent inter-union disputes arising over conflicting membership rights. Principle 2 required A.P.E.X. to make an enquiry of T.G .W.U. when the applicant applied for membership .

It is clear that the applicant's expulsion was in accordance with the A.P.E.X. rules which provided in rule 14 for expulsion in order to comply with a decision of the T.U.C. disputes committee. The Commission does not consider that either rule 14 or principle 2 can be regarded as unreasonable. Moreover it notes that the applicant's expulsion from A.P.E.X. did not involve loss of his job because of a closed shop.

In these circumstances the expulsion of the applicant from A.P.E.X. must be seen as the act of a private body in the exercise of its Convention rights under Article 11. As such it cannot engage the responsibility of the respondent Government.

It follows, therefore, that the application must be rejected as incompatible rarione personae with the provisions of the Convention within the meaning of Article 27 para. 2.

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Jurisprudence

Compulsion to join Business associations Economic objectives Hunting associations Pension funds Restrictions Criminal convictions Non-nationals Public officials Disclosure of member's name Deportation Discriminatory treatment Failure to promote Transfer