National and Local Government Officers Association (NALGO) v United Kingdom (decision), 1 September 1993 [ECtHR]

Case no 21386/93

Sections 64 to 67 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") received the Royal assent on 16 July 1992 and entered into force on 16 October 1992. (...)

The provisions of Sections 64 - 67 of the 1992 Act repeated, in substance, the provisions of Sections 3 - 5 of the 1988 Act.

In the case of Bradley and Others v. Nalgo (1991) IRLR 159, Nalgo expelled nine of its members for crossing picket lines during an official strike. A declaration was made under the provisions of the 1988 Act that the expulsions amounted to unjustifiable discipline within the meaning of that Act. Nalgo was given four weeks in which to reverse the decisions to expel; it decided not to comply with the order and an application was made for compensation. The minimum award (then £2,520) was made. The Employment Appeal Tribunal, on 14 February 1991, found no grounds for awarding more than a statutory minimum. (...)

NALGO makes three principal complaints with regard to the 1992 Act. First, it alleges that the existence and application of the Act is an impermissible restriction on the effective exercise by Nalgo on behalf of its members of the freedom of association guaranteed by Article 11 para. 1 of the Convention and, in particular, the collective aspect thereof, namely "the right to form and join trade unions for the protection of his interests".
The second ground of complaint, also under Article 11 of the Convention, is that the legislation violates the autonomy of Nalgo and of other trade unions and that it is therefore an inadmissible interference with Article 11 rights.
Nalgo contends that the restriction and interference occasioned by the 1992 Act are not "necessary in a democratic society" within the meaning of Article 11 para. 2. They consider that, as the legislation is not restricted in its application to unions which members are a "member of the armed forces, the police or the administration of the State, unions whose members are a "member of the armed forces, of the police or the administration of the State", the final sentence of Article 11 para. 2 does not apply.
Nalgo also alleges a violation of Article 11 taken together with Article 14 on the ground that the law applies only to the internal affairs of trade unions as defined in domestic law, and not to other voluntary associations, such as employers' associations, political parties or campaigning and religious bodies. (...)

The Commission recalls that in the Sigurjonsson case (Eur. Court H.R., judgment of 30 June 1993, to be published in Series A no. 264, para. 35) the European Court of Human Rights held that Article 11 (Art.11) of the Convention encompasses a negative right of association. Accordingly the Article contains a right to refuse to associate as well as a freedom to associate. The applicant union may well therefore have the right, in principle, to expel members who do not comply with its rules. In taking a decision to expel however, full weight must be given to the rights of the person whose expulsion is under consideration as well as to those of other members of the association, and the principle of proportionality must be observed.

The Commission would also comment that a particular aspect of the right to freedom of association is the right to form and join trade unions.  Inherent in that right is the right, within the law, to administer such unions autonomously (cf. No. 10550/83, Cheall v. the United Kingdom, Dec. 13.5.85, D.R. 42 pp. 178, 185). Any restrictions on union autonomy, such as those imposed by Sections 64 - 67 of the 1992 Act must therefore be considered in the context of Article 11 para. 2 (Art. 11-2) of the Convention.

The Commission recalls that, in the case of Cheall (loc. cit.), it had to consider the extent to which Article 11 (Art. 11) of the Convention required the State to protect an individual against abuse of a dominant position by trade unions. Examples of such abuse given by the Commission included "where exclusion or expulsion was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary..." (p. 186). The Commission finds that the statutory restriction on union freedom in the present case was "prescribed by law", and that its aim was to protect the "rights and freedoms of others", namely the individual members.

As to whether the restrictions were "necessary in a democratic society",  the Commission first notes that, although the statutory definition of unjustifiable discipline contained in Section 65 of the 1992 Act narrowly defines conduct which is considered unjustifiable, it is nevertheless for an industrial tribunal or the Employment Appeal Tribunal pursuant to Section 67 to determine whether in a given case such conduct has taken place.

The Commission next recalls that the very phrase "a democratic society" connotes a "balance which ensures the fair and proper treatment of minorities and avoids abuse of a dominant position" (cf. Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 25 para. 63).  It was to avoid such abuse that the relevant provisions of the 1992 Act were passed.

 Given the "margin of appreciation" allowed to States in achieving this balance (cf. Young, James and Webster judgment, loc. cit., p. 26 para. 64), the Commission cannot find that the entry into force of Sections 64 - 67 of the 1992 Act was not "necessary in a democratic society" within the meaning of Article 11 (Art. 11) of the Convention.

Finally, the Commission notes that the legislation attacked by the applicant union did not apply to other sectors of society, such as voluntary organisations. However, the Commission is of the opinion that trade unions play a particular role in the employment field such that they are not in the same position as other associations and organisations. Accordingly, legislation applying solely to trade unions does not amount to a difference in treatment between comparable groups with the result that there is no discrimination within the meaning of Article 14 (Art. 14) of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

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