Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30668/96

by David W. WILSON & NATIONAL UNION OF JOURNALISTS

Application No. 30671/96

by Terence A. PALMER, Arthur E. WYETH and the National

Union of Rail Maritime and Transport Workers

Application No. 30678/96

by Michael John DOOLAN and Others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 September 1995

by David W. WILSON & NATIONAL UNION OF JOURNALISTS against the United

Kingdom and registered on 26 March 1996 under file No. 30668/96;

Having regard to the application introduced on 14 September 1995

by Terence A. PALMER, Arthur E. WYETH and the National Union of Rail

Maritime and Transport Workers against the United Kingdom and

registered on 26 March 1996 under file No. 30671/96; Having regard

to the application introduced on 19 October 1995 by Michael John DOOLAN

and Others against the United Kingdom and registered on 26 March 1996

under file No. 30678/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the respondent Government's letter of 3 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

A. Particular circumstances of the case

Application No. 30668/96

The first applicant is a British citizen, born in 1953 and

resident in London. The second applicant is a trade union of

journalists ("the union"), of which the first applicant is a member.

Both applicants are represented before the Commission by Stephens

Innocent, a firm of solicitors practising in London. The facts as

submitted by the applicants may be summarised as follows.

The first applicant was employed by the British Newspaper

Publishing Company Associated Newspapers Limited ("the employer"). The

union has been recognised since at least 1912 for the purpose of

collective bargaining as regards the terms and conditions of employment

of its members under the terms of a "House Agreement". The House

Agreement governed all aspects of the relationship between the employer

and the journalists employed by it.

In 1989 the employer gave notice to all journalists, by letter

dated 10 November 1989, that the union was going to be de-recognised

from 1 April 1990 and that personal contracts were to be introduced

requiring that journalists accept de-recognition. A 4.5% pay increase

would be made to those journalists who signed the personal contracts.

On 30 March 1990 the employer refused to enter into pay negotiations

with the officers of the union and as from 1 April 1990 the union was

declared to be no longer recognised by the employer for any purpose.

The first applicant refused to sign the personal contract, and

consequently did not receive the 4.5% pay increase (worth about £1,500

per annum to the first applicant). In subsequent years the first

applicant's salary increased, but was never raised to the same level

as those who had received a 4.5% increase.

The first applicant complained to the Industrial Tribunal on the

grounds that the requirement that he should sign the personal contract

with its removal of references to his trade union and the failure to

pay him the 4.5% pay rise when he refused to do so, was in breach of

domestic law, namely the Employment Protection (Consolidation) Act 1978

("the 1978 Act"), and contrary to the rights afforded him under the

Convention. The Industrial Tribunal held in favour of the first

applicant on 22 October 1990. This decision was appealed by the

employer to the Employment Appeal Tribunal, which by a majority upheld

the employer's appeal on 25 June 1992. The first applicant appealed

to the Court of Appeal who heard his case together with the case of

Mr Palmer and Others (see Application No. 30671/96). On 10 May 1993

the first applicant's appeal was upheld by a unanimous finding of the

Court of Appeal. The employers then appealed to the House of Lords

where the first applicant's case was again heard together with the case

of Mr Palmer and Others. The House of Lords' decision in favour of the

employer, was handed down on 16 March 1995. The House of Lords were

unanimous in allowing the employers' appeal, however their reasoning

was disparate. The majority based their decision on the fact that the

statutory history was such that it was impossible to hold that an

"omission" to offer a pay rise to the applicants who did not accept the

proffered new personal contracts, constituted "action" against such

employees, in contravention of section 23 (1) (a) of the 1978 Act. Four

of the five Law Lords held that whilst it was plain that the employer

was seeking by means of an attractive offer to induce its employees

voluntarily to abandon the union's collective bargaining and to deal

directly with the employers over their terms and conditions of

employment, there was nothing to suggest that the employer was seeking

to induce the employees to give up their union membership.

Two months after the decision of the House of Lords, the first

applicant was dismissed for his trade union activities.

Application No. 30671/96

The first and second applicants are British citizens. The first

applicant was born in 1949 and currently lives in Southampton. The

second applicant was born in 1936 and currently lives in Totton,

Hampshire. The third applicant ("the union") is an independent trade

union of which the first and second applicants were members. All the

applicants are represented before the Commission by Pattinson and

Brewer, a firm of solicitors, practising in London. The facts as

submitted by the applicants may be summarised as follows.

The first and second applicants were both employed by Associated

British Ports ("the employer") at the Port of Southampton, as manual

grade employees. They were also members of the union. The union was

recognised by the employer for the purposes of collective bargaining

under the terms of a collective agreement. This agreement was

comprehensive and governed all aspects of the relationship between the

employer and the manual grade employees.

In February 1991 the first and second applicants, along with

their fellow employees, were sent a letter offering them a personal

contract of employment to take effect on 1 March 1991. This personal

contract provided that the terms of the collective agreement would no

longer apply to employees accepting the personal contract, the

employees would no longer have the right to be represented by the union

and pay would not be determined by the existing negotiated wage rates.

An inducement in the form of a pay increase of approximately 10%,

together with private medical insurance was offered to employees who

signed the personal contract.

The first and second applicants refused to sign the personal

contract and consequently did not receive the pay increase or the

private medical insurance. The employer did not immediately de-

recognise the union. In June 1991, an annual pay rise was negotiated

between the union and the employer, under the terms of the collective

agreement, for employees who had not signed the personal contract. The

negotiated pay increase was lower than the pay increase offered in the

personal contracts.

In 1992 the employer gave notice that it was terminating the

collective agreement and de-recognising the union for all purposes.

The first and second applicants complained to the Industrial

Tribunal in August 1991, on the grounds that the requirement that they

should sign the personal contract, with its express reference to the

right no longer to be represented by the union and the granting of a

pay rise to employees who signed the personal contract, was in breach

of domestic law, namely the 1978 Act. The Industrial Tribunal held on

20 January 1992 that there had been a breach of section 23 (1) (a) of

the 1978 Act. The employer appealed to the Employment Appeal Tribunal

which found in its favour, in a decision dated 13 October 1992. The

first and second applicant appealed to the Court of Appeal, where their

case was heard together with a similar case involving members of the

National Union of Journalists (see Application No. 30668/96). The Court

of Appeal found unanimously for the first and second applicants on

10 May 1993. The employer then appealed to the House of Lords (the

appeal in the case involving the National Union of Journalists again

being heard simultaneously), where they were successful. The House of

Lords decision was handed down on 16 March 1995 (see under particular

circumstances of Application No. 30668/96 for reasoning of House of

Lords).

Application No. 30678/96

The applicants are all British citizens living in Cardiff.

Further details are set out in the appendix hereto. They are

represented before the Commission by Pattinson and Brewer, a firm of

solicitors, practising in London. The facts as submitted by the

applicants may be summarised as follows.

The applicants were all employed by Associated British Ports

("the employer") at the Bute Docks in Cardiff and were all members of

the Rail Maritime and Transport Workers Union ("the union").

The union was recognised by the employer for the purposes of

collective bargaining as regards the terms and conditions of employment

of its manual grade employees under the terms of a collective

agreement. This agreement was between the employer and the manual

grade employees. It was a comprehensive agreement that covered all

aspect of the relationship between the employer and manual grade

employees.

On 19 April and 19 July 1991 each of the applicants was sent a

letter offering him a personal contract of employment including an

increase in pay. In return, each had to relinquish all rights to trade

union recognition and representation, and to agree that annual

increases and other terms and conditions would no longer be negotiated

by the union on his behalf.

Each of the applicants refused to sign a personal contract, and

as a result, received only a 4% annual pay increase on their basic rate

of pay. This was awarded in July 1992, and back dated to 20 April 1992.

This increase was negotiated by the union representative responsible

for the Cardiff Docks and formally accepted by an agreement dated

30 June 1992.

Those employees, holding the same positions as the applicants,

who accepted personal contracts received a pay increase which was

approximately 8-9% greater than the pay rise awarded to the applicants.

In 1992 the employer gave notice that it was terminating the

collective agreement and de-recognising the union for all purposes.

Each of the applicants made an application to an industrial

tribunal claiming that the requirement that they should sign the

personal contract with the express reference to the right no longer to

be represented by a trade union, and the failure to pay the same pay

rise as employees who sign the personal contract, was in breach of

domestic law. However, their cases were never heard, because the

hearing was postponed pending the decision of the House of Lords in the

cases of Palmer v Associated British Ports and Wilson v Associated

Newspapers (see Application No. 30668/96). The House of Lords decision

finding for the employers in both cases was handed down on 16 March

1995. In consequence of the House of Lords judgment, the applicants

were advised that their applications to the industrial tribunal were

doomed to failure, since there was no material difference between their

circumstances and those of Mr Palmer who had lost his case. Therefore,

each of the applicants withdrew his application from the industrial

tribunal thus leading to a formal dismissal of their cases. Between

25 April 1995 and 5 May 1995 the applicants' applications were

withdrawn, and the applicants duly informed that their cases had been

dismissed.

B. The relevant domestic law

Section 23 (1) (a) of the 1978 Employment Protection

(Consolidation) Act 1978 provides:

"(1) Every employee shall have the right not to have action

(short of dismissal) taken against him as an individual by his

employer for the purpose of

(a) preventing or deterring him from being or seeking to

become a member of an independent trade union, or

penalising him for doing so.

This section was subsequently re-enacted as section 146 (1) of

the Trade Union and Labour Relations (Consolidation) Act 1992 ("the

1992 Act").

Following the decision of the Court of Appeal an amendment was

made to the law.

Section 13 of the Trade Union Reform and Employment Rights Act

1993 amended section 148 of the 1992 Act such that, where "the

employer's purpose was to further a change in his relationship with all

or any class of his employees" then, unless the action of the employer

was action no reasonable employer would take, an employee could not

complain under section 146 (1) of the 1992 Act.

COMPLAINTS

The applicants complain that the law of the United Kingdom failed

to protect their interests through trade union membership. In

particular the applicants complain about the termination of the

collective bargaining facility and the termination of all union

representation.

The applicants also claim that the denial of union representation

before the employer amounted to a violation of freedom of expression.

Further the individual (as opposed to union) applicants complain

that the law of the United Kingdom permitted discrimination against

trade union members. They allege that withholding a pay rise from

employees who wished to have union representation and thus refused to

sign personal contracts excluding such representation, amounted to

discrimination.

The applicants invoke Article 11 in conjunction with Articles 10,

further the individual applicants invoke Article 14.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on the following dates:

Applications Nos. 30668/96 and 30671/96 on 14 September 1995 and

Application No. 30678/95 on 19 October 1995. Each of the applications

was registered on 26 March 1996.

On 26 February 1997 the Commission decided to join the

applications and communicate them to the respondent Government.

The Government on 3 July 1997, after an extension of the time-

limit fixed for the submission of observations, informed the Commission

that they did not wish to submit written observations on admissibility,

but would reserve their position on the merits. Due to the Government's

stance the applicants were not invited to submit observations in reply.

THE LAW

The applicants complain that the law of the United Kingdom failed

to protect their interests through trade union membership. They invoke

Article 11 in conjunction with Articles 10 (Art. 11+10), further the

individual applicants invoke Article 14 (Art. 14).

Article 11 (Art. 11) of the Convention provides, so far as

relevant, as follows:

"1. Everyone has the right ... including the right to form and

to join trade unions for the protection of his interests."

Article 10 (Art. 10) of the Convention provides, so far as

relevant, as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority ..."

Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government have made no submissions on admissibility and has

reserved their position with regard to the merits. There has thus been

no reply by the applicants.

The Commission considers that the applications raise complex

issues of law and fact under the Convention, the determination of which

should depend on an examination of the merits of the application as a

whole. The Commission concludes, therefore, that these complaints are

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Appendix

COMPLETE LIST OF APPLICANTS

Application No. 30668/96

Name Nationality D.O.B. Address

David WILSON British 04.12.53 London

NATIONAL UNION

OF JOURNALISTS London

Application No. 30671/96

Name Nationality D.O.B. Address

Terence A. PALMER British 06.07.49 Southampton

Arthur E. WYETH British 25.01.36 Totton, Hants

NATIONAL UNION OF

RAIL AND MARITIME

TRANSPORT WORKERS London

Application No. 30678/96

Name Nationality D.O.B. Address

Michael J. DOOLAN British 24.05.57 Cardiff

John I. FARRUGIA British 12.05.63 Cardiff

Christopher S. JENKINS British 01.04.72 Cardiff

B. JONES British Cardiff

Arthur L. PARRY British 12.02.48 Cardiff

David F. PARRY British 11.05.46 Cardiff

David S. PINE British 16.06.46 Cardiff

Keith A. WEBBER British 15.03.62 Cardiff

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WILSON, NATIONAL UNION OF JOURNALISTS AND OTHERS v. THE UNITED KINGDOM

WILSON, NATIONAL UNION OF JOURNALISTS AND OTHERS v. THE UNITED KINGDOM

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