[An examination of the
United Kingdom Trade Union
Act 2016 and other trade
union reform proposals from
an International and
European Legal Perspective]
[European and International Labour Law LLM]
Fiona McKay
Supervisor: Beryl Ter Haar
[Date of Submission 29/07/2016 – Friday] Word Count:12,207 (including footnotes, excluding abstract, cover page and bibliography)
2
Abstract
The focus of the paper is the human rights compliance – or otherwise of - the industrial action ballot provisions contained within Section 2 and 3 of the Trade Union Act 2016, recently passed by the United Kingdom Conservative Government and the proposals currently being considered to allow agency workers to act as replacements for employees who are engaged in legitimate strike action. The Act and proposals were intended by the United Kingdom government to be a way of further regulating the power of trade unions in the country – despite already tough regulation, and as a result the proposals were, and still are extremely controversial, and so having an understanding of their human rights credentials is vitally important.
Having established that certain collective labour rights should be considered fundamental human rights, as a result of the status of the employment relationship and the provisions of numerous European and International human rights instruments, a thorough examination of the provisions against a backdrop of European and International human rights legislation was conducted. This included analysis of and comment on the provisions in relation to, in particular Convention 87 of the International Labour Organisation, Article 11 of the European Convention on Human Rights, and Article 6(4) of the European Social Charter. As a result of this analysis, it was discovered that there is a strong case for claiming that both the ballot threshold provisions of the Trade Union Act, and the proposals on agency workers as replacements for striking workers contain significant deficiencies on human rights grounds, and may in fact be in breach of the United Kingdom’s human rights obligations under these pieces of legislation.
In light of this, it was argued that there were a number of possible options available to the United Kingdom Government to deal with this problem. In this paper, the most favoured of those options is either to significantly amend the legislation in order that it become properly human rights compliant, or, and this was the ultimate preferred option of the author, to scrap the legislation completely, and for the government to find a different and perhaps more human rights friendly way of achieving its aim of trade union regulation.
3
Contents
Abstract ... 2
Introduction ... 4
Chapter One: Collective Labour Rights as Human Rights? ... 8
Chapter Two: International and EU Legal Framework on Right to Strike ... 13
Chapter Three: The Trade Union Act 2016. Human Rights compatible? ... 21
Are the Ballot Threshold Proposals Human Rights Compliant? Yes or No ... 22
Agency Workers in Industrial Action Changes: Human Rights Compliant?... 26
Chapter Four: Recommendations: What Should the UK do? ... 30
Conclusion ... 33
4
Introduction
Trade Unions play a vital role in industrial relations in the United Kingdom, and more widely throughout Europe. They can vary in size, organisation and sector – covering anything from a few thousand individuals, to many millions of workers, and operating in workplaces all over the economy, from teachers to metal workers, nurses to shop staff. Regardless of their structural make up, the main aim of a trade union is always to protect the interests of their members. Most importantly, they play a key role in addressing the evident inequality of bargaining power which often exists within the modern day employment relationship.
Trade Unions have at their disposal a wide variety of mechanisms, which they can deploy in order to ensure that they achieve their aims – the most severe of these being an industrial strike1. An industrial strike is, and has to be a last resort2, but it is recognised as “a legitimate weapon of trade unions in furtherance of their member’s interests.3”
In the United Kingdom, Trade Unionism has a long and varied history. Since receiving legal status and legitimisation in 18714, the Trade Union movement has been at the heart of a number of key battles and while not always successful5, has been responsible for winning many vital victories6 – showing the important of their existence for employees. Today, the Trades Union Congress represents 51 affiliated unions in England and Wales7, and as many as 6.5 million people across the United Kingdom are members of a trade union8.
Many Collective Labour Rights – the entitlements which attach to workers to join together and form a grouping in the context of their employment, usually a trade union and to
1 Kelly, J and Nicholson, N: Strikes and other forms of industrial action, Industrial Relations Journal 1980, Vol 11(5) pg., 20-31
2 International Labour Conference, General Report: Freedom of Association and Collective Bargaining 1994, paragraph 136
3 Fourth Report of the Committee on Freedom of Association, 1953, Case No. 5 (India), paragraph 27
4 Hedges, R Y and Winterbottom, A: The Legal History of Trade Unionism, Longmans, Green and Co, 1930 pg. 65-69
5 The most well-known example of unsuccessful industrial action is likely to be the Miners’ Strike
6 Well-known victories include the Dagenham Equal Pay cases
7https://www.tuc.org.uk/britains-unions [last accessed 29/07/2016]
8 Department of Business, Innovation and Skills: Trade Union Membership 2015 Statistical Bulletin, May 2016 pg. 3
5
negotiate with their employer through the auspices of that organisation or trade union9 – such as freedom of association, and the right to collective bargaining – are considered to be fundamental human rights. Numerous international, European and domestic conventions, legislation and organisations recognise this10. However, there are those who believe trade unions should be more tightly controlled in the exercise of the rights that they do have – and are regulating in this regard11.
An example of such regulation, comes in the form of the Trade Union reforms which found themselves at the heart of the legislative programme of the current United Kingdom Conservative Government. The Trade Union Act 2016, which received Royal Assent on 4th May 201612 seeks to make a number of significant changes to the laws governing Trade Union activity in the United Kingdom. In particular, it contains detailed, strict rules on ballot thresholds which must be reached by trade unions in order for an industrial strike to be deemed legal, and for the workers involved to gain immunity from liability for their actions13. Additionally, proposals have been made – although not yet acted upon - to remove the ban on the use of agency workers to replace legitimately striking workers14.
While some do support these reforms, believing strongly that they will grant strike action legitimacy and ensure it is not taken too easily15, the measures have also garnered widespread criticism from numerous sections of society – including the Trade Unions Congress16, esteemed members of the legal profession17, and devolved administrations18 - as going too far in curtailing Trade Union freedom.
9 Mantouvalou, V: Are Labour Rights Human Rights? European Labour Law Journal, Volume 3 (2012) No.2 pg.152
10 See the UNDR, ICCPR, ICESCR, ECHR, ESC, UK HRA 1998 for examples.
11 See speech of Sajid Javid, Secretary of State for Business, Innovation and Skills, Second Reading of the Trade Union Bill 14th September 2015, 3.55pm
http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150914/debtext/150914-0001.htm#1509146000001 [last accessed 29/07/2016]
12https://hansard.parliament.uk/lords/2016-05-04/debates/16050461001398/RoyalAssent
[last accessed 29/07/2016]
13 See Sections 2 and 3 of the Trade Union Act 2016
14 Department for Business, Innovation and Skills: Hiring agency staff during strike action: reforming regulation, July 2015 pg. 3
15 See speech of Sajid Javid, Secretary of State for Business, Innovation and Skills, Second Reading of the Trade Union Bill 14th September 2015, 3.55pm
http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150914/debtext/150914-0001.htm#1509146000001 [last accessed 29/07/2016]
16 TUC Submission to ILO Committee of Experts, prepared by Professor K D Ewing, Kings College London July 2015
6
The aim of this thesis is to evaluate provisions of the Trade Union Act 2016 and related proposed regulations against a backdrop of both International and European law, and attempt to come to a conclusion around the merits or otherwise of the legislation. In light of this, an attempt will also be made to explore some recommendations for a way of moving forward with this legislation.
There are many elements of the Trade Union Act 2016 and related proposed regulations which could be examined, however as a result of length constrains which have been placed on this piece of writing, a decision has been taken to focus the analysis on two key elements which have garnered a large amount of the criticism – the thresholds for legal strike action, and the use of agency workers as a replacement for workers engaged in legitimate industrial action.
In an effort to make what can sometimes be considered a complicated and nuanced discussion as understandable and coherent as possible, this piece of writing will be divided into four separate chapters. Each chapter will focus on a different element of the discussion, and finally an attempt will be made to come to a clear and concise conclusion around the topic set.
In the first chapter, the value of key trade union rights, such as freedom of association and collective bargaining as human rights will be outlined. This will be done with reference to a variety of academic comment, as well as provisions of numerous human rights documents which make this issue clear.
The second chapter will explore in detail the International and EU legal context of Trade Union protections. The international framework of legal protection, including that of the International Labour Organisation (ILO) will be discussed and provisions of the European Convention on Human Rights and the European Social Charter as well as relevant case law will be examined, in an attempt to show the current direction of opinion regarding the protection of Trade Union Rights.
Chapter three will focus on an in-depth analysis of the Trade Union Act 2016 and accompanying proposed regulations in relation to the legal background which has been outlined in the preceding chapters. The two key elements for discussion in this thesis - the strike threshold provisions and the proposals on use of agency workers during industrial
17 Carr, B QC: Will the Trade Union Bill help or hinder industrial relations? 12th February 2016
7
disputes – will be explained and analysed. In addition, academic comment on the potential consequences of these provisions will be discussed.
In the fourth chapter, bringing everything already discussed in the preceding chapters together, an attempt will be made to reach a clear and concise conclusion on the question set for this piece of research, and perhaps make some recommendations about the reforms. Are they compatible with the United Kingdom’s international and European human rights obligations? Should they be continued unchanged in the body of labour law in the United Kingdom? Can some alterations be made to the reforms which would make them viable, or is in fact, the only possible solution that the Act be scrapped completely and immediately?
8
Chapter One: Collective Labour Rights as Human Rights?
In order to properly understand the theoretical context in which the debate around the Trade Union Act and other UK industrial relations reforms takes place, it is naturally vital to examine the space which Collective Labour Rights occupy in the worldwide legal framework. Are they to be classified as fundamental human rights or are they simply considered to be privileges granted to workers by governments?
You may ask, why this classification matters for my discussion of Trade Union reforms. The answer to this is clear. Classification of a subject as a fundamental human right has significant consequences for the levels of protection that attaches to it, and how much room to manoeuvre a particular national government has when they wish to interfere with the foundations of that subject19. If something is classed as a right that comes with protection responsibilities, if it is simply a privilege it can be taken away by governments as easily as it was granted. This is why classification matters.
Throughout the literature on the topic, the prevailing opinion in recent decades seems to be moving towards a view that collective labour rights should be considered fundamental human rights. There are three key areas which tend to be examined in coming to that conclusion – these are the ones I will also examine. Firstly, the theoretical basis for the employment relationship, and what that means for human rights protection. Secondly, whether the key human rights instruments – International, European and domestic – present collective labour rights as included within their understanding of human rights. Finally, what the opinion of those outside of the legislative process – such as the courts and the general public – is on the issue. Do they consider collective labour rights to be human rights?
In terms of the philosophical theory, the existence of human rights in the employment context is very much dependant on the way in which the employment relationship itself is viewed. Is it an economic relationship or is it a personal relationship20? Where the focus of an employment relationship is simply capitalist, money is the main object of the exercise, and company employees are only seen as faceless entities which exist in order to make the company richer, the existence of human rights in employment is harder to understand,
19 Wheeler, H N: Viewpoint: Collective Bargaining as a Human Right, Industrial Relations, Vol 39, No 3 (July 2000) pg. 535
20 Wheeler, H N: Viewpoint: Collective Bargaining as a Human Right, Industrial Relations, Vol 39, No 3 (July 2000) pg. 535
9
because humans are not the focus of the piece21.However, if at its core the employment relationship is seen as a reciprocal agreement between one human being, and other human being, for the performance of a task and receipt of payment for that performance, where employees are treated as people who matter, with something to offer, and something meaningful to contribute, then human rights will play a strong part in the regulation of that relationship22.
Looking at this issue from a Labour law perspective – where the protection of workers’ rights has to be the main focus - the conclusion that the employment relationship is a personal relationship between two human beings to which human rights protections should attach is, in the opinion of this paper, the only logical conclusion which can be reached. Considering a labour relationship as simply an economically focused contract does not do justice to the amount of work an individual has to put into doing their job on a daily basis. It is arguable that this sort of approach also makes it all too easy for the employer to treat an employee poorly.
Moving away from philosophy, towards what some have defined as a more positivistic approach to defining human rights, an examination of a variety of International, European and domestic pieces of human rights legislation, also helps us to understand whether or not collective labour rights should be considered as fundamental human rights23. Many of these documents present us with an understanding of the particular collective labour rights which the international community consider to have gained status as fundamental human rights24.
Taking the important documents one by one, we start to see a pattern. The United Nations Declaration on Human Rights 1948 contains provisions relating to the protection of freedom of association25. The International Covenant on Civil and Political Rights (ICCPR)
21 Wheeler, H N: Viewpoint: Collective Bargaining as a Human Right, Industrial Relations, Vol 39, No 3 (July 2000) pg. 535
22 Wheeler, H N: Viewpoint: Collective Bargaining as a Human Right, Industrial Relations, Vol 39, No 3 (July 2000) pg. 535
23 Mantouvalou, V: Are Labour Rights Human Rights? European Labour Law Journal, 2012 pg.152
24 Adams, R: Collective Bargaining: The Rodney Dangerfield of Human Rights, Labour Law Journal, Volume 50(3) pg.204
10
also contains this provision26, while the International Covenant on Economic, Social and Cultural Rights (ICESCR) deals with a right to strike27.
The International Labour Organisation (ILO) has also set out its stall on what it considers basic human rights at work, with the passage of the Declaration of Fundamental Rights and Principles at Work 1998 requiring states to protect the right to organise and bargain collectively, amongst many other things. This protection was then further elaborated on by the passage of Convention 87 and 98 which states could sign up to, setting down detailed, concrete requirements in relation to collective bargaining and freedom of association. It is perhaps unsurprising that collective bargaining is given a focus in such a variety of instruments, given the view held by many that “the right to act collectively is essential to being fully human.28”
At European level, the European Convention on Human Rights, as well as the European Social Charter contain many of the same provisions as the international human rights documents29. Domestically, the United Kingdom Human Rights Act 1998 incorporates the ECHR into domestic law and thus recognises all the rights contained within it30.
Taking this very basic approach, it is easy to come to the conclusion that Collective Labour Rights, and in particular freedom of association and the right to collective bargaining should be considered fundamental human rights. The key pieces of legislation tell us that they are human rights – on one level, the analysis need not go any further than that31.
This is however, admittedly a very superficial way of looking at this issue – what the legislation says, in reality only scratches the surface. Before any real conclusions are reached about if collective labour rights should be considered fundamental human rights it is important to look at the way these rights are interpreted by the courts of a particular judicial system – do they act as if these rights are human rights and do they protect them as such?32 Legislation can, to a certain extent say whatever it wants, if the courts are not interpreting it
26 Article 22 International Covenant on Civil and Political Rights
27 Article 8(1)(d) International Covenant on Economic, Social and Cultural Rights
28 Wheeler, H N: Viewpoint: Collective Bargaining as a Human Right, Industrial Relations, Vol 39, No 3 (July 2000) pg. 537
29 Article 11 ECHR deals with Freedom of Association. A number of sections of the ESC are also relevant, particularly Article 6(4)
30 United Kingdom Human Rights Act 1998
31 Mantouvalou, V: Are Labour Rights Human Rights? European Labour Law Journal, 2012 pg. 152-155
32 Mantouvalou, V: Are Labour Rights Human Rights? European Labour Law Journal, 2012 pg. 156-157
11
in that way or are not giving it its full intended effect, a statement in the legislation that something should be considered a human right is almost completely pointless. In this regard, the courts have a huge amount of power.
As is described very clearly in the literature, in recent years the opinion of the courts on the position of collective labour rights has gradually been changing. The jurisprudence appears to be shifting in favour of trade unions and trade union rights, and away from economic considerations controlling the decisions taken in labour law cases33. This will only add fuel to the belief that collective labour rights are human rights. If the courts are beginning to treat them as such, then this has to be recognised.
In order to provide balance to this discussion, it must be stated that there is a viewpoint advanced in the literature by certain academics, which appears to suggest that those who are interested in the protection of labour rights, and who wish to see them furthered, should in fact steer clear of attempting to classify labour rights as human rights, as this may in fact damage the levels of protection which can be afforded to labour rights34. However based on everything which has already been outlined above, the idea that labour rights would somehow lose out from a classification as human rights seems to be a difficult one to accept. Human rights receive extra protection from the judicial system, it is difficult to imagine a situation where extra protection could possibly be seen as a bad thing – if that is what is being suggested.
Bringing all of the above discussions together, it seems the only logical conclusion which can be reached is that collective labour rights – including freedom of association and the right to collective bargaining - are to be considered fundamental human rights. Human Rights are an important part of the relationship between employer and employee. Numerous international, regional and domestic legislative instruments designate various collective labour rights as human rights, and the position of the courts, in recent times has cemented that approach – however this is a change from their previous approach.
This decision as to classification, has important consequences for the actions of any national government hoping to legislate in this area – they will have to take into consideration the extra levels of protection which these collective labour rights will attract by virtue of their human rights status, and it may be harder for a government to achieve successful legislation.
33 Mantouvalou, V: Are Labour Rights Human Rights? European Labour Law Journal, 2012 pg. 159-160
12
This extra protection will be something which will have to be borne in mind for future chapters when evaluating the legitimacy of the Trade Union Act 2016, recently passed by the United Kingdom Government.
13
Chapter Two: International and EU Legal Framework on Right to Strike.
Having established in the preceding chapter that collective labour rights – in particular the right of freedom of association, and the right to collective bargaining - should be given the classification of fundamental human rights, the aim of this chapter is to lay out in detail both the International and European legal framework which exists, in particular concerning the right to strike. It is important to do this in the context of my thesis research question, as it is the legal framework of the right to strike, which the provisions of the Trade Union Act 2016 and other proposed Trade Union reforms will be assessed against in order to determine their levels of human rights compliance.
As has already been said, freedom of association and collective bargaining should be considered fundamental human rights. Further to that, the organs of the International Labour Organisation (ILO) have regularly been of the opinion that – as a result of the specific wording of Convention 8735 - the right to strike should also be considered a fundamental human right – as a constituent part of freedom of association and the right to organise36. They have concluded that striking constitutes an “essential element of trade union rights.37” This is a position, which until recently, has been heavily contested by some parts of the tripartite organisation - particularly those representing employers38. This dispute has since been ended – with employers recognising the existence of the right to strike39 – but the position of the ILO has never changed.
35 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 142
36 Yildiz Burcu, G: Determining the Scope of Freedom of Association with regard to the right to strike pg.1 http://islssl.org/wp-content/uploads/2015/10/Turkey-GayeBurcuYIldiz.pdf [last accessed 29/7/16] & Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), International Labour Conference, 81st Session, 1994.paragraph 151
37 Committee on Freedom of Association Second Report, 1952, Case No. 28 (United Kingdom), paragraph 68.
38 Bellace, J: The ILO and the right to strike, International Labour Review, Volume 153(1) pages 29-70
39 International Labour Organisation: Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level, February 2015 pg.5
14
In spite of believing the right to strike to be a fundamental human right, the International Labour Organisation has readily accepted that it should not be considered to be an absolute right. It can be completely obviated in certain – very strictly controlled – circumstances, and in others, it can be subject to legislative provisions which control its use40. The ILO have simply stated that the restrictions which are placed on it should not mean it is “possible to prohibit virtually all strikes or to end them quickly.41”
To aid further in the understanding of the ILOs position on the right to strike, over the years they have issued clear guidance on a number of issues to help states to ensure compliance with their international law human rights obligations. Of particular interest to us in this paper, is the position of the ILO in relation to sympathy strikes, strike ballot thresholds and methods, and the use of agency workers as so called strike breakers.
Concerning sympathy strikes, the position of the ILO is very clear. A complete ban on workers striking in support of other striking workers should be avoided, and the trade unions should be allowed to call their members out on such a strike. The only requirement which was placed on this finding was that the legality of the strike which the workers were taking industrial action in support of, should itself be confirmed42. Sympathy strikes – or the ban on such strikes – is an area where the United Kingdom has previously come in for criticism from the ILO43.
In terms of strike ballot thresholds and methods, the position of the ILO is particularly interesting. Comments made in 1994 by the International Labour Conference make the basic
http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocumen
t/wcms_346764.pdf last accessed [29/7/16]
40 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 151. See also: GERNIGON, B, ODERO, A and GUIDO, H: ILO principles concerning the right to strike, International Labour Review, Vol. 137 (1998), No. 4 pg. 447-449
41 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 153
42 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Report III (Part 4B), International Labour Conference, 81st Session, 1994, paragraph 168
43 These criticisms were laid out in National Union of Rail, Maritime and Transport Workers v United Kingdom [2014] ECHR 366 paragraphs 30-33
15
principles in this area very clear. As a starting point, each element of the strike ballot process e.g. the way in which the vote is taken (for example by post or electronically), the number of people who must vote, and the majority needed for a successful strike ballot, “should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice.44” Adding to this, the ILO have stated that requirements should ensure that “account is taken only of votes cast, and that the required quorum and majority are fixed at a reasonable level.45” Importantly, the ILO have made it clear that extra restrictions can be placed on those who work in the “essential services” taking part in strike action46. However, the ILO’s understanding of what constitutes the “essential services” has been very tightly defined. As far as they are concerned, it is only those who work in industries “the interruption of which would endanger the life, personal safety or health of the whole or part of the population47” that can be considered essential and thus can be subject to additional restrictions on their fundamental human right to strike.
Finally, as far as the position of the International Labour Organisation is concerned, we will now turn our attention to the issue of the use of agency workers by employers as a replacement for workers who are taking part in legitimate strike action. As far as this is concerned, the position of the ILO is actually remarkably clear. The use of individuals intended to be utilised as a replacement for workers who are taking part in legitimate industrial action, should in general be avoided and in reality should only be considered in cases concerning strikes taking place in the already defined “essential services.48”
44 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 170
45 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 170
46 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 151 and 159
47 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 159
48 Report of the Committee of Experts on the Application of Conventions and
16
Additionally, in cases which have been presented to them in the past, the Committee on Freedom of Association has come to the conclusion that “if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.49” These two points combined show that the International Labour Organisation have really only reached one final conclusion in relation to the use of agency workers as strike breakers – if a government wants to be in compliance with its international human rights obligations, it should not really consider allowing this practice in their country.
Having dealt with the International legal framework of the right to strike, primarily through the auspices of the International Labour Organisation jurisprudence, the focus will now turn to how the issue is dealt with on a European stage. There are a number of legal instruments in Europe which have a part to play in regulating the right to strike – however for the purposes of this paper, as a result of length requirements, focus will be put on the jurisprudence arising out of two key pieces of human rights legislation – the European Convention on Human Rights, and European Social Charter – to both of which the United Kingdom is signatory.
Turning first to how the European Convention on Human Rights (EHCR) has dealt with the issue of the right to strike. Article 11 of the ECHR states that “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.50” Obviously this right can be subject to certain restrictions, pursuant to Article 11(2).
For our purposes, the case law of the ECrtHr on this article is interesting. Firstly, in the case of Enerji Yapi-Yon Sen v Turkey51, it was made clear by the ECrtHR, that the right to strike is considered to be part of the right of freedom of association, and should be treated as a fundamental human right as such. Specifically, the court stated that, “the terms of the Convention require that the law should allow trade unions, in any manner not contrary to article 11, to act in defence of their members interests….Strike action, which enables a trade
49 International Labour Organisation: Digest of Decisions and Principles of the Freedom of Association Committee, 2006, paragraph 633
50 Article 11(1) European Convention on Human Rights 51 2009 (application no. 68959/01)
17
union to make its voice heard, constitutes an important aspect in the protection of trade union members’ interests.52”
Secondly, in the core case of Demir and Baykara v Turkey53, it was pointed out, that when the Court is dealing with cases concerning the right to strike, attention will be paid to the principles which have already been by international organisations, such as those International Labour Organisation, outlined above, and the practice which develops within the States of the Council of Europe more generally. At paragraph 85 of the Demir judgement the Court said particularly that “in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs and the practice of European States reflecting their common values.54”
The Human Rights Court has also acknowledged in its jurisprudence, that issues such as the right to strike can be complex, and politically difficult issues to handle, and therefore in the case RMT v United Kingdom, it was accepted that when dealing with the restrictions which are placed on the exercise of such rights, states have the benefit of a wide margin of appreciation to deal with the subject as is seen fit in their country55.
Finally, in a variety of other cases of the ECHR, many of which the UK government relied on to state that the Trade Union Act 2016 was in fact in compliance with their Human Rights obligations under the ECHR56, acknowledgement was that it could be permissible to place sector specific restrictions on certain professions right to strike, as a result of the nature of the jobs which people who work in those professions do, meaning that the effect of them taking part in an industrial strike on the general public would be felt to a much greater extent.
Turning now to how the issue of the right to strike has been dealt with by the other instrument of the Council of Europe we are focusing on in this piece of writing – the European Social Charter. With this piece, things are a little more straightforward, as the issue
52 As quoted in:
https://www.liberty-human-rights.org.uk/sites/default/files/Liberty%27s%20briefing%20on%20the%20Trade%20Union %20Bill%20for%20Second%20Reading%20in%20the%20House%20of%20Commons%20%
28Sep%202015%29_0.pdf [last accessed 29/7/16]
53 [2008] ECHR 1345
54 Demir and Baykara v Turkey [2008] ECHR 1345 at paragraph 85
55 National Union of Rail, Maritime and Transport Workers v United Kingdom [2014] ECHR 366 paragraph 104
56 Particularly Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.) v Spain
(application no. 45892/09). See Department for Business, Innovation and Skills: Trade Union Bill, European Convention on Human Rights Memorandum, December 2015 pg. 6
18
of the existence of a right to strike is dealt with directly rather than as a corollary of another existing right. Article 6(4) of the Charter states that “the parties undertake to recognise the rights of workers and employees to collective action in cases of conflicts of interest, including the right to strike…57”
It is the job of the European Committee on Social Rights (ECSR) to ensure that state parties to the Charter are acting in compliance with it58. In relation to the right to strike in Article 6(4), the ECSR has created a long line of comment, from a variety of countries – regarding their position on the protection of such a right59. It has been acknowledged that right to strike, as covered by the Charter does not and cannot only extend to cover strikes which are aimed at concluding a collective agreement, and must also cover strikes which are intended to help a trade union receive recognition in a particular country60. Additionally, similarly to the position held by the International Labour Organisation, a decision of the European Committee on Social Rights has also found that a prohibition on secondary action may violate Article 6 of the Charter, by depriving certain people of their right to strike dependant on their particular employment situation61.
The Charter, and the Committee on Social Rights have acknowledged that it is permissible in certain circumstances to limit the right to strike. Particularly, in Article 31(1) of the 1961 Charter – the one which is applicable to the United Kingdom - it states that any restrictions which are laid down must be “necessary in a democratic society for the protection of public interest, national security, public health, or morals.62” It has also concluded that extra restrictions on the right to strike may be possible in terms of people who work in “essential services.63” This has been defined as services “which the life of the community
57 Article 6(4) European Social Charter 1961
58 http://www.coe.int/en/web/turin-european-social-charter/european-committee-of-social-rights [last accessed 29/7/16]
59 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg. 445-476
60 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg. 449
61 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.450-451
62 As quoted in Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.460
63 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.465
19
depends on64” and certain countries have been criticised in the past for attempting to take this term too far65.
In terms of principles relating to the use of ballot requirements – which is important for our purposes in this piece of writing - the European Committee on Social Rights has had a fair amount to say. In particular they have come to the conclusion that while setting a requirement for a pre-strike ballot to be held before industrial action can be taken, is in conformity with the provisions of the European Social Charter, the majority which is needed for that strike action to take place should not be 50% or more66.
The Committee has - on regular occasion - including very recently found that the UK’s approach to the right to strike is not considered in compliance with its obligations under the European Social Charter67. Particularly, the European Committee on Social Rights has stated that the United Kingdom is not in conformity with its Article 6(4) obligations for three key reasons: 1. there are too many restrictions on the ability of employees in the United Kingdom to engage in collective action. 2. The rules on providing notice of intention to hold a strike ballot go too far and 3. Workers in the country do not have sufficient protections against dismissal available to them, when they chose to engage in legitimately determined collective action68.
Bringing all of this together, it is clear that the international and European legal framework for dealing with the right to strike is diverse and at times can be considered to be a little complicated. The International Labour Organisation (ILO) has attempted to lay out clear principles which states can use to monitor their own compliance with their human rights obligations under the relevant conventions. Of all three of the organisations examined in this paper, the ILO does appear to have the clearest line of jurisprudence. However, the European Convention on Human Rights as applied by the European Court of Human Rights, and the European Social Charter as monitored by the European Committee on Social Rights also have case law and opinion which lays out their position as regards the protection of the right
64 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.465
65 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.465
66 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.468
67 See European Committee of Social Rights: Conclusions XX-3 (2014) United Kingdom, January 2015
68 European Committee of Social Rights: Conclusions XX-3 (2014) United Kingdom, January 2015 pg.24
20
to strike. Interestingly, an important point to reiterate for our purposes, is that regardless of the way in which it is done in the particular organisation, all three bodies do recognise the right to strike as a fundamental human right.
Additionally, each of the organisations - whether of their own accord or as a result of a reliance on other provisions such as that of the ILO - have a position on the procedures and numerical values which should be attached to any pre-strike ballot which is carried out to determinate the legality of industrial action. Within many of the bodies, there is also a clear position, from the human rights perspective, on the use of agency workers as strike-breakers in the context of legitimate industrial action. Each of these positions has major consequences in the context of the next chapter of this piece, where the intention is to assess the provisions of the Trade Union Act 2016, against the International and European Human Rights framework, and come to a conclusion about whether or not this piece of legislation is
21
Chapter Three: The Trade Union Act 2016. Human Rights compatible?
Having already established that the right to strike should be considered a fundamental human right, along with the right to freedom of association and collective bargaining and with a clear understanding of the position of the relevant human rights institutions – the International Labour Organisation, the European Court of Human Rights, and the European Committee on Social Rights – on the parameters of such a right, the aim of this chapter of the thesis is to ask the question whether the provisions of the Trade Union Act 2016 and other proposed reforms that we are focusing on in this piece of writing - such as the proposals on use of agency workers in strikes – are compatible with that position? This is the central question for my research, and therefore it is vital that are thorough analysis is conducted.
The first step in being able to conduct that thorough analysis is to gain a full understanding of the exact nature of both the provisions of the Act, and of the other proposed regulations, more specifically the changes which the Conservative Government is proposing to the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
Dealing firstly with the Trade Union Act 2016. The particular Sections we are concerned with are Section 2 and Section 3 of that legislation. Section 2(1)(iia) imposes a new requirement on Trade Unions concerning the number of people who must cast a vote in a pre-strike ballot for the industrial action to be considered valid. In particular, it states that a pre-strike ballot will only be valid in situations “in which at least 50% of those who were entitled to vote in the ballot did so69” Section 3 of the Act then goes even further than it. It imposes additional requirements on trade unions and individuals hoping to go on strike in certain – what the Act deems – important public services. The Act states that in these cases, industrial strike action will only be legitimate if “at least 40% of those who were entitled to vote in the ballot answered “Yes” to the question.70” A list of important public services has been given by the Government, and is considered to include “health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel and border security.71”
69 Section 2(1)(iia) Trade Union Act 2016 70 Section 3(2)(2C) Trade Union Act 2016 71 Section 3(2)(2E) Trade Union Act 2016
22
Looking at the Conduct of Employment Agencies and Employment Businesses Regulations 2003, the proposal which was taken out to public consultation - although that consultation closed some time ago and we are still awaiting the government response - is relatively straightforward. The plan is to introduce secondary legislation which will remove the ban contained with Regulation 7 of these Regulations, which has been in place in United Kingdom labour law for a number of years, on employers seeking the use of agency workers to use as replacement workers for employees who are taking part in legitimate strike action72. In other words, the plan is to allow agency workers to act as strike breakers.
Analysing whether or not these provisions do violate the United Kingdom’s obligations under the International and European human rights standards which have already been outlined in the preceding chapters can be a complicated process. It may be the case that a certain provision would breach some of the human rights standards but not others, and it would be extremely easy to get lost amongst all the information. As a result, it has be decided to analyse the provisions in two separate sections coinciding with the way in which they have been outlined above. Firstly, we will look specifically at the ballot threshold proposals. Looking at both the 50% turnout requirement being imposed by Section 2 of the Act, and the extra 40% Yes Vote requirement for legitimate strike action amongst the “important public services” implemented by Section 3 – do those requirements comply with or breach any UK human rights obligations?. Finally, the “agency workers as strike-breakers” proposal contained within the Draft Regulations published by the government will be evaluated to determine whether or not in proceeding with this change to the law, the United Kingdom Government would find itself in breach of any of its International or European human rights obligations.
Are the Ballot Threshold Proposals Human Rights Compliant? Yes or No
Firstly, looking at the 50% turnout and extra 40% “Yes vote” pre-strike ballot thresholds, against the standards of the International Labour Organisation outlined above, although the position is a little mixed, the likeliest outcome of the analysis is that the provisions will be considered in breach of ILO Convention 87 – particularly the 40% Yes vote threshold.
72 Department for Business, Innovation and Skills: Hiring agency staff during strike action: reforming regulation, July 2015 pg.3
23
The ILO Committee of Experts, has stated on numerous occasion that requiring a 50% turnout in a pre-strike ballot is a legitimate figure for the government to impose73, and therefore it is unlikely that any breach will be found directly in relation to Section 2 of the Act. However, certain jurisprudence of the Committee from a case involving Australia complicates that opinion a little74.
In any case, the breach of ILO standards is much more likely to be found when dealing with Section 3 of the Act – the 40% yes vote threshold. There are a number of reasons for this. Firstly, as stated in Chapter 2, it is a requirement of the ILO that in any prestrike ballot “account is taken only of the votes cast.75” As many have pointed out76, this principle has not been adhered to in the Trade Union Act – the requirement in Section 3 is not that 40% of those who voted, voted Yes – it is that 40% of all those who were entitled to vote, voted Yes. This seems to be in clear breach of ILO standards.
Further, and again as many have pointed out, the definition given by the UK Government of “important public services” does not coincide with the definition the ILO gives – it is too broad. The Committee on Freedom of Association has already asked that the UK review this – particularly the inclusion of education and transport – to ensure human rights compliance77.
Finally concerning the position of the ILO on ballot thresholds, is an issue which brings both elements of Section 2 and 3 together for discussion. A guiding principle of the ILO’s position on strike limitations, is that they “should not be such that the exercise of the right to strike becomes difficult or even impossible in practice.78”
73 Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 1A) 105th Session, 2016 United Kingdom pg.153 74 Forde, M and Novitz, T: An absence of fairness…Restrictions on Industrial Action and Protest in the Trade Union Bill 2015, Industrial Law Journal 44(4) December 2015, pg. 533 75 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 170
76 TUC Submission to ILO Committee of Experts, prepared by Professor K D Ewing, Kings College London July 2015 pg.13-14
77 Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 1A) 105th Session, 2016 United Kingdom pg.153 -154 78 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
24
A significant piece of research conducted by academics at the University of Salford, England79 has brought up results which show that if these thresholds had been applied to previous industrial action disputes, a significant number of them would not have been able to proceed under these new ballot rules80. Interestingly, and this is where the findings may change the previously espoused belief that it was the 40% threshold where the breach was more likely to be found, they found that it was the 50% participation threshold – that will apply to every strike – that caused the biggest problems. However, there were also problems with the 40% extra threshold81. They discovered that the number of people who would be restricted from striking because of these thresholds, was far greater than the number of people who would still be able to go on strike with these barriers in place82.
In the opinion of this paper’s author, it seems that the Salford research has shown that it is highly possible to – at the very least – make a strong case that the introduction of this legislation will make the exercise of the right to strike “difficult….in practice.83” A large proportion of the working population would be prevented from striking, and many others may seriously struggle to meet the threshold. It seems that that is the very definition of “difficult or even impossible in practice.84” If this is the case, then that would constitute a breach of the United Kingdom’s human rights obligation under ILO Convention 87.
Turning to the position of the European Social Charter on ballot thresholds, the situation is interesting. While setting a quorum for the vote is permissible, the Committee on
79 Darlington, R and Dobson, J: The Conservative Government’s Proposed Strike Ballot Thresholds: The Challenge to Unions, Salford Business School, Research Working Paper, August 2015
80 Darlington, R and Dobson, J: The Conservative Government’s Proposed Strike Ballot Thresholds: The Challenge to Unions, Salford Business School, Research Working Paper, August 2015 pg.2
81 Darlington, R and Dobson, J: The Conservative Government’s Proposed Strike Ballot Thresholds: The Challenge to Unions, Salford Business School, Research Working Paper, August 2015 pg.3
82 Darlington, R and Dobson, J: The Conservative Government’s Proposed Strike Ballot Thresholds: The Challenge to Unions, Salford Business School, Research Working Paper, August 2015 pg.2
83 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
International Labour Conference, 81st Session, 1994.paragraph 170
84 Freedom of association and collective bargaining. General Survey of the reports on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
25
Social Rights has stated that the majority vote required to take action must not “attain or exceed 50% of the workers concerned.85” While it is admittedly true that the 40% Yes vote requirement does not of itself do this, the requirement of a 50% turnout combined with a 40% yes vote in the important public services, amongst all eligible workers, means that in effect an even higher threshold must be reached. Although, it does not directly concern the quorum required to take legitimate strike action, this is something that must be taken into action and may tip the balance in favour of finding a breach of Article 6(4) of the European Charter.
Finally concerning the analysis of the ballot threshold provisions, the European Convention on Human Rights. The Governments position in this regard has been dealt with by means of a government memorandum on ECHR compliance. In this document, a variety of case law is relied upon, to show that the ballot threshold proposals comply with the UK’s ECHR obligations86. However, there has been some criticism of the way in which the government has justified the provisions – arguing that they may have wrongly relied on certain ECHR cases87. Additionally, given that, as has already been argued, the European Court of Human Rights does pay attention to what is going on in other organisations, such as the ILO and the ESC88, a finding of incompatibility with Article 11 of the ECHR is not completely out of the question.
Concluding this section, it seems fairly clear that the ballot threshold provisions in the Trade Union Act 2016 violate some, if not all, of the United Kingdom’s human rights obligations. There is clear evidence for arguing that there has been a substantial breach of the country’s responsibilities under ILO Convention 87, and a conclusion that the United Kingdom is in breach of its obligations under the European Social Charter and the European Convention on Human Rights is also a very distinct possibility. This is not something which can be ignored. If the United Kingdom was to be found in breach of these standards in a real case, they would have to do something about that breach. The question is, what would they chose to do? In the next chapter of this piece of writing, a number of options which the United Kingdom could pursue will be discussed and a conclusion will be reached around which one is considered the most appropriate. However, first an examination of the other
85 Kovacs, E: The Right to Strike in the European Social Charter; Comparative Labour Law and Policy Journal Volume 26, 2004 pg.468
86 Trade Union Bill: European Convention on Human Rights (ECHR) Memorandum, December 2015
87 Law Society of Scotland: Written Evidence on the Trade Union Bill, October 2015, pg.3 88 Demir and Baykara v Turkey [2008] ECHR 1345 at paragraph 85
26
element of Trade Union reforms being considered by the Conservative government – the proposal to allow employers to hire agency workers to replace workers engaged in legitimate strike action - must be analysing to conclude whether they are human rights compliant or whether they too are to be considered in breach of any of the United Kingdoms, international or European human rights obligations.
Agency Workers in Industrial Action Changes: Human Rights Compliant?
Having established that there may be some significant human rights compliance issues with the ballot threshold provisions in Sections 2 and 3 of the Trade Union Act 2016, in this subsection of the thesis, we are now going to turn our attention onto looking at the issues which arise as a result of the proposed changes to the Conduct of Employment Agencies and Employment Businesses Regulations 2003 – the regulations governing the use of agency workers as replacements for those engaged in legitimate strike action.
Having regard for all of the legal standards which have been outlined in the previous chapter, it is difficult to see how it would be possible for these government proposals to be in compliance with any of the Human Rights obligations to which they have voluntarily made themselves subject. Many organisations – including some of the country’s biggest trade unions89– have already expressed concerns to the government in this regard. Although admittedly, they do have a significant vested interest in this, and it is arguably harder to make an argument for breaches of some of the Human Rights obligations than it is for others.
These agency worker proposals - if legislated on in the manner in which they currently stand in the draft regulation put forward by the consultation - would result in a blanket change to United Kingdom labour law in this area. They would seem to allow every single employer in every single industry to use agency workers as a replacement for workers who legitimately go out on strike90.
Concerning the position of the International Labour Organisation, while they have stated that it may be legitimate and permissible for this sort of technique to be used in certain circumstances, they have also argued that in most situations the use of replacement workers
89 See Unite Response to Department for Business, Innovation and Skills Consultation: Hiring agency staff during strike action, reforming regulation. September 2015, pg. 2 90 Department for Business, Innovation and Skills: Hiring agency staff during strike action: reforming regulation, July 2015 pg.3
27
in the context of industrial action would constitute a “serious violation of freedom of association.91” This, added to their comment outlined earlier in Chapter 2 stating that the use of such workers may “entail a risk of derogation from the right to strike92” make it close to impossible – in the opinion of the author of this paper – to come to any conclusion other than the one which many more intelligent authors than this one have reached – this proposal of the United Kingdom government if proceeded with would in all likelihood constitute a significant breach of the countries human rights obligations under ILO Convention 87.
In a similar vein, it is – admittedly slightly easier, although still very – difficult to comprehend how any conclusion other than a finding that this agency workers proposal is in breach of the United Kingdom’s Article 6(4) responsibilities under the European Social Charter can be reached. While it appears to have been more difficult to come across specific comment on this issue from the European Committee on Social Rights (ECSR), the fact that the Committee has already been, over many years, severely critical of the United Kingdom for having a system of labour law in place which breaches Article 6(4) of the Charter93, should be enough to at least merit the suggestion that if the government attempted to create a situation where it became even more difficult for individuals to engage in meaningful forms of industrial action – as would arguably be the case if these proposals were implemented – as they would simply be replaced by the employer and the employer would thus not feel the intended effects of the industrial action, this too would be in serious breach of the United Kingdom’s Article 6(4) European Social Charter responsibilities.
Additionally, it is worth remembering that it is not only the employee who is on strike that would suffer from the introduction of this policy as they would not have the chance to properly exercise their rights, the agency worker who is brought in as a replacement for that employee is often also at risk of poor treatment at work, and not receiving their full complement of employment protection94.
Turning now to look at the protections given by Article 11 of the European Convention on Human Rights. Bringing in replacement workers is clearly a restriction on the
91 International Labour Organisation: Digest of Decisions and Principles of the Freedom of Association Committee, 2006, paragraph 632
92 International Labour Organisation: Digest of Decisions and Principles of the Freedom of Association Committee, 2006, paragraph 633
93 European Committee of Social Rights: Conclusions XX-3 (2014) United Kingdom, January 2015 pg.24
94 Using agency workers during strike action: TUC Reponses to Department for Business, Innovation and Skills Consultation on the Trade Union Bill pg.6
28
right to strike as part of the right to freedom of association, as while the employee is still technically able to engage with the employer by means of industrial action, the effect of that industrial action is undoubtedly impeded if a replacement can simply be brought in. Under Article 11(2), the only grounds on which that limitation can be justified are “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.95”
The government discusses its reasons for introducing the requirement as being “to help employers to limit the impact to the wider economy and society of strike action.96” While it is arguable that this could fit within the “rights and freedoms of others” justification – i.e. on the basis of a “right to run a business” argument - , that explanation is, at best, debatable. If it does not fit within that justification, then this move may constitute a breach of ECHR obligations.
Additionally, as has already been stated above in the Demir judgement97, the European Court of Human Rights, in making its decisions on ECHR compliance of the cases before it, takes account of the position that has developed in international and other institutions outside the ECHR. Given the clear position of the ILO on this topic, and the potential for the European Committee on Social Rights to move in the same direction, it may become even more likely that the European Court of Human Rights would find a breach of Article 11 if it was presented with this case in the future. This is despite the wide margin of appreciation which it often applies in cases involving strike legislation98.
Bringing this section to a conclusion, it seems clear that the agency workers proposal would be in breach of the United Kingdom’s human rights obligations. The breach of ILO convention 87 standards seems to the author of this paper, to be somewhat glaringly obvious, and the question has to be asked why did the UK government go ahead with even proposing this change when it was clearly non-human rights compliant? While the potential breaches of the European Social Charter, and the European Convention on Human Rights may not be quite so straightforward, it is still in the opinion of this paper, likely that a breach of these provisions can be found. If this is the case, the question is what should happen to these – and
95 Article 11(2) European Convention on Human Rights
96 Department for Business, Innovation and Skills: Hiring agency staff during strike action: reforming regulation, July 2015 pg.7 paragraph 18
97 Demir and Baykara v Turkey [2008] ECHR 1345 at paragraph 85
98 National Union of Rail, Maritime and Transport Workers v United Kingdom [2014] ECHR 366 paragraph 104
29
in the case of the agency workers position, they are still at this stage – proposals for change? That is the exact issue that will be dealt with in the forthcoming chapter.
