The applicant is an independent trade union and it sought recognition for the purposes of collective bargaining in relation to a particular employer.   They applied to the Central Arbitration Committee, an organisation run by the respondent Secretary of State for Business, Energy and Industrial Strategy.   Their application was refused on the basis that there was already another independent trade union recognised for collective bargaining purposes.  That decision was based upon Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 which stated an application to the Committee was not admissible if the Committee was satisfied there was already a collective agreement in force recognising an independent trade union.  The applicant stated that the decision and the application of the 1992 Act was contrary to its rights under Article 11 of the European Convention on Human Rights protecting the freedom of association.

The Court of Appeal recognised that the European Court had held that the right to bargain collectively was an essential aspect of Article 11.  To that end, there was only a narrow margin of appreciation to be applied as to any restrictions on the Article 11 right.    However, the application of that right vis-à-vis Unions was on the basis of membership rather than the rights actually conferred.   Therefore, the question for the Court was whether the rights under Article 11 extended to the right to be represented by their own union rather than another recognised one.  It was acknowledged that any constraint on collective bargaining regarding a particular union had to be justified by sufficient reasons.  That being said, when it came to justification the margin of appreciation was much wider than noted above in relation to membership rights.

The Court of Appeal held that when it came to policy considerations regarding the introduction of legislation it is to be given a wide margin of appreciation.  Therefore, they reiterated the protection that applies when there is no independent union recognised or the employer refuses to recognise an independent union.  This can be contrasted with the situation in this case where there was already an incumbent independent union.  Therefore, the need for stability and unity in collective bargaining as outlined by Parliament was a sufficient justification and there was no breach of Article 11 of the ECHR – meaning that the workers in this case were not able to displace the recognised Trade Union.

Practical Lessons

This case demonstrates the practical workings of the freedom of association and how it applies to recognition of trade unions for collective bargaining purposes.  The Court of Appeal gave a wide margin of appreciation when there was already recognition of an independent trade union meaning that where there are competing unions then it will not ordinarily lead to an infringement of the freedom of association considering that there is already a recognised independent union.  That unity and stability was given weight in determining that there was no breach.
https://www.judiciary.uk/wp-content/uploads/2021/02/IWGB-v-Secretary-of-State-for-Business-Energy-and-Industrial-Strategy-judgment.pdf