CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 28910/95                       by the NATIONAL ASSOCIATION OF TEACHERS                       IN FURTHER AND HIGHER EDUCATION                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  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 15 December 1994 by the NATIONAL ASSOCIATION OF TEACHERS IN FURTHER AND HIGHER EDUCATION against the United Kingdom and registered on 11 October 1995 under file No. 28910/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      10 June 1997 and the observations in reply submitted by the      applicant on 13 November 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a trade union which has its head office in London.   It is represented before the Commission by Messrs Michael Scott & Co., London.   A.    The particular circumstances of the case        The applicant union was involved in a trade dispute with the Blackpool and Fylde College ("the College") and with other colleges of further and higher education over the introduction of flexible contracts of employment for newly appointed members of staff.        In January 1994, the applicant union informed the principal of the college that it intended to hold a ballot of its members over whether they would be prepared to take part in strike action, and whether they would be prepared to take part in action short of a strike.   On a national ballot, a majority of members of the applicant union had been in favour of industrial action; a larger number had been in favour of action short of a strike than in favour of an actual strike.        On 10 February 1994 the applicant union informed the College that it had instructed "all its members employed by your institution to take part in discontinuous action.   The first intended date of this industrial action, which will be on this occasion strike action, is 1 March 1994".        The College applied for an interlocutory injunction on the ground that the applicant union had failed to describe, "(so that [the employer] can readily ascertain them) the employees of the employer who it is reasonable for the union to believe ... will be entitled to vote in the ballot", as required by Section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").   The College further contended that the applicant union had similarly failed to describe, "(so that the employer can readily ascertain them) the employees of the employer who the union intends to induce ... to take part ... in the industrial action", as required by Section 234A of the 1992 Act.    A union which does not comply with the relevant requirements of the 1992 Act loses the immunity in tort for losses arising from a strike which it otherwise enjoys.        The applicant union claimed that it could not be required to give the actual names of the employees because the statute did not expressly require names to be given (and the records of the parliamentary debates confirmed that this was not the intention), and because for various practical reasons it was virtually impossible to provide an accurate list of names.   Moreover, members of unions who had not agreed to their union dues being deducted by the employer were likely to be the sort of people who regard membership of a union as a private matter.   The applicant union also referred to Articles 8, 10 and 11 of the Convention, to the ILO Freedom of Association and Protection of the Right to Organize Convention 1948 and to Article 1 (2) (b) of the ILO Right to Organize and Collective Bargaining Convention 1949.        On 24 February 1994 Mr Justice Morrison granted the College the injunction it had applied for, restraining the applicant union from carrying out a proposed one day strike.   He agreed with the arguments on behalf of the College "not without a degree of unease".   He accepted that the inferred purpose of the provision was to enable employers to seek to persuade the employees who were entitled to vote to say no to the proposed action, and that a targeted approach would be more effective and less likely to provoke resentment than a lobbying of the whole work force.   This was particularly so in the present case, where only about one third of the work force at the College belonged to the union and two thirds of union members did not have their union dues deducted at source, with the result that the College did not know who they were.   Accordingly, the judge considered that the union, in order to give a valid notice to the College, did indeed have to provide names of union members at the College.   He added that it was not necessary or desirable to refer to the records of the parliamentary debates (in which the Minister had indicated that "I can think of no circumstances in which it would be necessary for the union to provide the names and addresses of the individuals involved"): any comments made there were made in response to specific questions and interventions, and it was preferable in this case to ascertain Parliament's intention by reference to the language used in the statute, in the normal way.        The judge also added that he could not see how the provisions of the Convention had any bearing on the matters, and that the later ILO Convention provided for protection from discrimination on grounds of union membership.   He considered that because "of these protections I cannot conclude that if a union has to disclose its members' names, even in the run-up to industrial action, the persons identified would be at risk, even where an employer had anti-union tendencies.   I should add that there is no basis for such a suggestion here.   An anti-union employer is likely to make it his business to know who, amongst his employees, belong to a union.   Whatever his tendencies, the law has provided protection to his employees."        The judge granted leave to appeal.        The Court of Appeal dismissed the appeal on 25 February 1994. The Master of the Rolls rejected an argument by the applicant union that the giving of names was offensive to union members and that the Data Protection Act 1984 would be breached by the disclosure of names of members without their consent, noting that the 1992 Act was the later Act and, if its meaning was plain, it could only be construed as derogating from the general provisions of the earlier Act.   He also pointed out that if the union could only divulge the names with the consent of its members, it still had the choice between obtaining the consent and not giving the notice.        The Master of the Rolls saw no ambiguity in the wording of Sections 226A and 234A, and saw no assistance for the applicant union in either the Convention or the ILO conventions.        In commenting on the judge's unease as to his conclusion, the Master of the Rolls noted "If by that he meant that he was uneasy as to the practical implications of this construction, as to its effect on the shop floor and on industrial relations, then it is possible to feel very considerable sympathy with his view.   If, however, he meant (and I think that he did not) that he felt unease as to whether this was the correct construction, then I for my part do not share that unease since, however unpalatable it may be, I regard the construction which he upheld as inescapable".        Lord Justice Neill agreed with the Master of the Rolls, as did Lord Justice Steyn, who also expressed his "unease about the consequences of a construction of this kind".        Leave to appeal to the House of Lords was refused, and on 20 June 1994 the House of Lords itself refused leave to appeal.   B.    Relevant domestic law and practice        Section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") provides, in so far as relevant, as follows:        "(1)   The trade union must take such steps as are reasonably      necessary to ensure that        (a)    not later that the seventh day before the opening day of            the ballot, the notice specified in subsection (2)      ...        is received by every person who it is reasonable for the union      to believe ... will be the employer of persons who will be      entitled to vote in the ballot.        (2)    The notice referred to in paragraph (a) of subsection (1)      is a notice in writing        (a)    stating that the union intends to hold a ballot,        (b)    specifying the date which the union reasonably            believes will be the opening day of the ballot,            and        (c)    describing (so that he can readily ascertain            them) the employees of the employer who it is            reasonable for the union to believe (at the time            when the steps taken to comply with this            paragraph are taken) will be entitled to vote in            the ballot."        Section 234A of the 1992 Act removes protection of the union, in respect of the employer, if the union has not taken such steps as are reasonably necessary to ensure that the employer receives a notice which:        "(3)(a) describes (so that he can readily ascertain them)      the employees of the employer who the union intends to      induce or has induced to take part, or continue to take      part, in the industrial action."   COMPLAINTS        The applicant union alleges a violation of Article 11 of the Convention.   It claims that the requirement to provide lists of members who are to be balloted concerning industrial action places serious obstacles on its ability to strive for the protection of its members' interests. The applicant union notes that if such a list is not provided it is (as occurred in the present case) enjoined from striking.   Moreover, the effect of the regulations is that the applicant union is required to disclose all its membership to a particular employer regardless of the wishes of some that this should not happen, and if it does not disclose, the wishes of the majority of its members - to take action in the context of a fundamental industrial dispute - will be thwarted.        The applicant union submits that the above interference with its rights under Article 11 para. 1 is not justified.   It recalls that the United Kingdom does not have a domestic bill of rights, and notes judicial comments of concern as to the effects of Sections 226A and 234A.   It also submits that there has been a woeful failure to strike the right balance between the rights of the union and those of the employer.   It emphasises that Sections 226A and 234A must be examined in the context of the full range of protection given to employers' rights by the law, including the 1992 Act, for example the duty imposed on the union to give the employer notice of a ballot and submit sample voting papers not later than the seventh day before the opening of the ballot, and the requirement that postal ballots must have independent scrutiny.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 December 1994 and registered on 11 October 1995.        On 17 January 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 10 June 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 13 November 1997, also after an extension of the time-limit.   THE LAW        The applicant union alleges that the operation of Sections 226A and 234A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") in the present case was in violation of Article 11 (Art. 11) of the Convention.   Article 11 (Art. 11) of the Convention provides as follows.        "1.    Everyone has the right to freedom of peaceful assembly and      to freedom of association with others, including the right to      form and to join trade unions for the protection of his      interests.        2.     No restrictions shall be placed on the exercise of these      rights other than such as are prescribed by law and are necessary      in a democratic society in the interests of national security or      public safety, for the prevention of disorder or crime, for the      protection of health or morals or for the protection of the      rights and freedoms of others.   This Article shall not prevent      the imposition of lawful restrictions on the exercise of these      rights by members of the armed forces, of the police or of the      administration of the State."   a)    The Government state that the applicant union could have organised industrial action and preserved its immunity had it complied with the statutory provisions, but it chose not to do so.   The Government submit that in these circumstances the applicant union cannot claim to be a victim under Article 25 (Art. 25) of the Convention.        The applicant union claims that its victim status under Article 25 (Art. 25) is clearly established.   It refers to Convention case law which has held that a union may have the standing of a victim under Article 25 (Art. 25) (Eur. Court HR, National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19 and Eur. Court HR, Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21).   It contends that the statutory provisions at issue imposed obligations on it to provide information about its membership, and points out that the union was the party sued in the domestic proceedings and against which the injunction was granted.        The Commission notes the express inclusion, in Article 11 para. 1 (Art. 11-1) of the Convention, of the right "to form and to join trade unions", and recalls that a trade union may claim to be a victim of alleged violations of its own rights (cf. Eur. Court HR, National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 18, para. 39), and that a trade union may be able to claim to be the victim of a violation of Article 11 (Art. 11) of the Convention where the right to join a trade union is completely removed (cf. No. 11603/85, Council of Civil Service Unions et al. v. the United Kingdom, Dec. 20.1.87, D.R. 50, p. 228, where the question of the union's standing was not expressly addressed; see also, as an example of a case where the union did not have such status, No. 22954/93, Ahmed and others v. the United Kingdom, Dec. 12.9.95).        The Commission notes that the requirement to disclose a list of its members to an employer at the often tense moment of a ballot on whether industrial action should be taken may affect the way in which the applicant union protects the rights of its members.   The Commission further notes that domestic proceedings were brought against the applicant union.   Those proceedings dealt directly with the fulfilment by the applicant union of statutory requirements prior to taking industrial action.   Further, the proceedings resulted in the grant of an injunction against the union, which restrained the union from proceeding with the planned industrial action.        The Commission therefore accepts that the applicant union may claim to be a victim of an alleged violation of Article 11 (Art. 11) of the Convention.   b)    The Government submit that the applicant union is claiming, in substance, a right to strike without identifying in advance the members of the trade union who are to be involved in such a strike. The Government submit there is no such right under Article 11 (Art. 11) of the Convention.   To the extent that the requirement to disclose members' names could lead to an employer using this knowledge in deterring or penalising employees from being members of a union, the Government state that there are provisions of domestic law (Sections 152, 146 and 137 of the 1992 Act) which would enable actions to be brought against employers who sought to take anti-union measures.   The Government further submit that to require a union, which operates a computerised register, to give a list of its members to the employer cannot be considered as a task so onerous as to interfere with rights under Article 11 (Art. 11) of the Convention. The Government submit, in the alternative, that if the requirement to give the list of names is a restriction of rights under Article 11 (Art. 11), this restriction is in any event justified under Article 11 para. 2 (Art. 11-2): the aim of Section 226A is to give the employer the opportunity of seeking to persuade employees not to vote in favour of industrial action, and the aim of Section 234A is to enable employers to know where a disruption is likely to occur and its likely extent, so that alternative arrangements can be made.        The applicant union alleges that Article 11 (Art. 11) encompasses a right to strike and submits that this right has been interfered with in an unjustifiable manner.   It points out, by reference to a paper by Professor Bercusson, that the right to strike is not guaranteed in the United Kingdom, either expressly or implicitly, and that in a survey of most member states of the European Union, only the United Kingdom has a requirement to provide information on strikers.   In particular the applicant union refers to the dilemma of a trade union which would have to disclose the identity of all union members to the employer (possibly against members' wishes) or not take industrial action. Further there was the practical difficulty in the present case of providing an accurate register for a union whose membership fluctuates considerably, particularly at times of industrial action.   The applicant union does not accept that union members are protected by domestic law against employers who penalise or deter them from union activities.   The applicant union states there can be no justification under Article 11 para. 2 (Art. 11-2) for the interference.   In particular the applicant union states that, had the employer genuinely wished to know the extent of likely disruption, this could have been obtained by circulating all members of staff, and asking whether they would be taking industrial action.        The Commission recalls that Article 11 (Art. 11) of the Convention guarantees freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (Eur. Court HR, National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 18, para. 39).   The right to strike is an important aspect of that protection, but it is not expressly enshrined in Article 11 (Art. 11) and may be subject under national law to regulation of a kind that limits its exercise in certain circumstances (Eur. Court HR, Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 16, para. 36).        Sections 226A and 234A of the 1992 Act limit the practical exercise of the right to strike, in that they add a further procedural hurdle in the path of a union which wishes to call for industrial action.   (In this connection the Commission notes that the Committee of Independent Experts of the European Social Charter is considering the provisions in the context of Article 5 of the European Social Charter; see Conclusions XIII-3, p. 109).   The question for the Commission, however, is whether this hurdle is compatible with the right of a trade union under Article 11 (Art. 11) to protect the occupational interests of its members.        The applicant union concedes that the interference is prescribed by law.   It claims, however, that the requirement to divulge the names of its members who are to be included in a ballot or in industrial action, is not proportionate to any legitimate aim.   It contends that it is not right that an employer should be able to compel a union to disclose who is to be balloted or to take part in industrial action, and that the provision does not strike the right balance between the rights of the employer and those of the union.        The Commission notes that the first instance judge found that the aim of Sections 226A and 234A was to give employers the opportunity to seek to persuade employees who were entitled to vote or to participate, to say no to the proposed action, and that a targeted approach would be more effective and less likely to provoke resentment than a lobbying of the whole work force.        The Commission does not agree with the applicant union that the requirement to divulge the names of members is a significant limitation on the right to take collective action: even in the often tense context of industrial disputes, a requirement to disseminate information with a view to furthering debate and discussion between the parties cannot be seen as inherently incompatible with Article 11 (Art. 11) of the Convention.   It is conceivable that, in certain circumstances, an employer will use, or try to use, the information to put undue pressure on an employee not to participate in a ballot, or to vote in a particular way, but in the present case there was and is no allegation whatever that the College was an "anti-union" employer.   Thus even if, contrary to the opinion of the first instance judge and the Government, there were no protection in domestic law for employees who are victimised as a result of union activity, the present applicant union (and its members at the college) would not have been under such pressure.        The Commission notes the applicant union's claim that on a "balance of inconvenience", it should not be saddled with the considerable administrative burden of having to produce lists of its members for each employer where a ballot is to take place, when employers could themselves ask employees about their intentions. However, the question for the Commission is not whether the aim pursued could be achieved by other means, but rather whether the applicant's rights under the Convention have been violated.   The Commission is not satisfied that there was any real difficulty for the applicant union in producing a list of members at each establishment where it was represented, or that any minor errors which might have occurred in preparing such lists from records which were not completely up to date would have had any impact on the union's position.        A further consideration in the present case is that the applicant union had to choose between divulging the names of members who may not have wanted their employer to know that they were members of a union, and - in effect - not taking industrial action.   The first instance judge considered that no harm would be done by divulging the names, as an anti-union employer would in any event know which worker was a member of which union and in such a case there was the protection of domestic law, while in the case of an employer who was not anti-union, there was no need to fear undue pressure.   The Master of the Rolls was of the opinion that the choice between obtaining the consent of members to having their names divulged and not giving the notice (and therefore not striking) was a real choice.            The Commission can accept that there may be specific circumstances in which a legal requirement on an association to reveal the names of its members to a third party could give rise to an unjustified interference with the rights under Article 11 (Art. 11) or other provisions of the Convention.   In the present case, however, the Commission does not accept that the obligation on the applicant union to reveal its membership list had an adverse effect on the applicant union's right to act to protect its members' interests.   If the members of a union decide to strike, the employer will be aware of the names of the strikers, and the fact that the employer finds out their names before, rather than after, the ballot cannot materially affect the position.   Further, the employer will be aware of the names of all those members of the union whose union dues are deducted at source by the employer.   It is conceivable that there may be members who do not wish their names to be revealed, who would vote against a strike and then would not be involved in a strike, and that such members would prefer that their names should not be given to their employer. However, the Commission considers that there is nothing inherently secret about membership of a trade union, and in any event the applicant union does not submit that there were, in reality, any such members, whether at the college or at other places where a strike was envisaged.        In the circumstances of the present case, therefore, the Commission finds that the requirement on the applicant union to reveal the names of the members participating in the ballot before taking industrial action did not result in an interference with the applicant union's rights under Article 11 (Art. 11) of the Convention which was disproportionate to the legitimate aim pursued and that the facts accordingly disclose no violation of the provisions of that Article.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber