CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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