CEDH · PRESS;GENERAL;ENG — 2 juillet 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s79054190 { font-family:Arial; font-weight:bold; font-style:italic; letter-spacing:-0.1pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   348   2.7.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF WILSON & THE NUJ, PALMER, WYETH & THE NURMTW, and DOOLAN & OTHERS   v. THE UNITED KINGDOM   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Wilson, and the National Union of Journalists, Palmer, Wyeth and the National Union of Rail Maritime and Transport Workers and Doolan and Others v. the United Kingdom (application nos. 30668/96, 30671/96 and 30678/96).   The Court held unanimously that there had been a violation of Article   11 (freedom of assembly and association) of the European Convention on Human Rights, regarding the use of financial incentives to induce employees to surrender the right to union representation for collective bargaining.   Under Article 41 (just satisfaction) of the Convention, the Court awarded each individual applicant 7,730 euros (EUR) for non-pecuniary damage and jointly to the union applicants EUR 122,250 for costs and expenses.   1.     Principal facts   There were 11 individual applicants: David Wilson, a journalist working on the Daily Mail and employed by the British newspaper publishing company Associated Newspapers Limited; Terence Palmer and Arthur Wyeth, employed by Associated British Ports (ABP) at the Port of Southampton as manual grade employees and eight other ABP employees living in Cardiff. There were also two trade union applicants; the National Union of Journalists (NUJ) - of which Mr Wilson was a member - and the National Union of Rail, Maritime and Transport Workers (NURMTW) - to which the other ten applicants belonged.   Wilson and the NUJ - The NUJ had been recognised for collective bargaining concerning the employment terms and conditions of its members since 1912. In November 1989 Associated Newspapers Limited gave notice that it intended to de-recognise the NUJ and terminate all aspects of collective bargaining and that personal contracts were to be introduced with a 4.5% pay increase for journalists who signed and accepted de-recognition. Mr Wilson refused to sign. In subsequent years his salary increased, but was never raised to the same level as those who had received a 4.5% increase.   Palmer, Wyeth and the NURMTW - The NURMTW had been recognised by ABP for collective bargaining. In February 1991 the ABP Southampton manual grade employees were offered personal contracts. Employees who signed were offered a pay increase of - on average - 10%, together with private medical insurance, in return for giving up union representation in pay negotiations. Mr Palmer and Mr Wyeth refused to sign. In 1991-2 they received an increase in pay and allowances of 8.9% and were not offered private medical insurance. In 1992 ABP gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.     Doolan and Others - The other individual applicants were all employed by ABP at Bute Docks in Cardiff and were also NURMTW members. In 1991 each applicant was sent a letter offering him a personal contract including an increase in pay if he relinquished all rights to trade union recognition and representation and agreed that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf. The applicants refused to sign. Employees, holding the same positions as the applicants, who accepted personal contracts, received an annual pay rise approximately 8-9% greater than that awarded to the applicants.   The individual applicants all separately applied to industrial tribunals complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978. The proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth ended up in the House of Lords, which found unanimously against them on 16   March 1995. The House of Lords held that collective bargaining over employment terms and conditions was not a defining characteristic of union membership.   2.     Procedure and composition of the Court   The applications were lodged with the European Commission of Human Rights in 1995 and declared admissible on 16 September 1997. A hearing was held on 30 January 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Gaukur Jörundsson (Icelandic), Karel Jungwiert (Czech), Mindia Ugrekhelidze (Georgian), Antonella Mularoni (San Marinese), judges , Lord Phillips of Worth Matravers (British), ad hoc judge,   and also Sally Dollé , Section Registrar .             3.     Summary of the judgment [2]   Complaints   All the applicants, including the two unions, complained of a violation of Article 11 and Article 10 of the Convention. The individual applicants additionally relied on Article   14.   Decision of the Court   Article 11   Collective bargaining The Court observed that a trade union had to be free to strive for the protection of its members’ interests and members had the right for their union to be heard.   At the time of the events complained of by the applicants, United Kingdom law provided for a wholly voluntary system of collective bargaining, with no legal obligation on employers to recognise trade unions for the purposes of collective bargaining. There was, therefore, no remedy in law by which the applicants could prevent their employers from de-recognising their unions and refusing to renew the collective bargaining agreements.   However, the Court recalled that collective bargaining was not indispensable for the effective enjoyment of trade union freedom. Compulsory collective bargaining would impose on employers an obligation to conduct negotiations with trade unions. The union and its members had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the legal systems of the countries which had ratified the Convention, there was a wide margin of appreciation as to how trade union freedom might be secured. There were other measures available to the applicant unions by which they could further their members’ interests. In particular, domestic law conferred protection on a trade union which called for or supported strike action “in contemplation or furtherance of a trade dispute”.   The Court did not, therefore, consider that the absence under United Kingdom law of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of Article 11.   Financial inducements to surrender union rights The Court noted that the essence of a voluntary system of collective bargaining was that it had to be possible for a trade union which was not recognised by an employer to take steps   - including, if necessary, organising industrial action - to persuade the employer to accept collective bargaining. Furthermore, it was of the essence of the right to join a trade union   that employees should be free to instruct or permit their union to make representations to their employer or to take action in support of their interests. If workers were prevented from so doing, their freedom to belong to a trade union became illusory. It was the role of the State to ensure that trade union members were not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.   The Court observed that United Kingdom law did not prohibit the employers in the case in question from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise were to end collective bargaining and substantially to reduce the authority of the union, provided the employer did not aim to prevent or deter the individual employee from being a trade union member. United Kingdom law therefore permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. It was, therefore, possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. The Court noted that this aspect of domestic law has been the subject of criticism by the Social Charter’s Committee of Independent Experts and the International Labour Organisation’s Committee on Freedom of Association.   The Court found, therefore, that permitting employers to use financial incentives to induce employees to surrender important union rights amounted to a violation of Article   11, regarding both the applicant unions and the individual applicants.   Articles 10 and 14 The Court found that no separate issue arose under Article 10 and that it was unnecessary to consider the complaint raised under Article 14.     Judge Gaukur Jörundsson expressed a concurring opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.