Made my mind up.
I voted yes, because I support the rights of workers to withdraw their labour. I assume that Kane held a ballot, voted and is abiding by the result.
If, eventually, he is unfairly forced to resume his labour, I hope he enforces an overtime ban, resulting in him sitting down on the grass at 45 & 90 minutes and not participating in any added time whatsoever.
did not
‘affect the substance of the points arising under the ECHR itself’ in the current appeal
(para 50). That decided, Lloyd LJ went on to address the question of the reasonableness or proportionality of the UK statutory provisions without further reference to external sources: to ECHR jurisprudence, or to ILO or ESC standards (101-113). He did not comment specifically on the
ESC Committee of Experts’ direct criticism of UK law, nor on the ILO opinion that notice
requirements could be justified only in so far as they were designed to encourage the parties to the dispute to engage in further negotiations before resorting to industrial action. Judging the matter of reasonableness instead in a rather abstract way, it did not take him long to find that the UK provisions
were
reasonable. It was reasonable that the law should seek to assist the
employers’ side in an industrial dispute by requiring the trade union to provide notice and
information to the employer: a balance was in any event necessary between the rights afforded to workers by Article 11 ECHR and the rights of the employer guaranteed under Article 1 of the First Protocol to the ECHR. It was reasonable to require a trade union to give notice of an intention to ballot as soon as was reasonably practicable, regardless of whether or not the union intended to take pursuant industrial action. And it was reasonable to require a trade union, when supplying information from its own sources, to say something about how the information had been arrived at. In reaching these conclusions, Lloyd LJ made specific reference to the legislative history of the provisions: to the fact that they had been introduced by a Conservative Government and amended twice by a Labour Government, and to the fact that the Labour Government had undertaken consultation before introducing the second set of amendments. If
these provisions had presented serious difficulties for trade unions, he reasoned, wouldn’t the
opportunity have been taken before now to amend them? He also referred to the guidance offered to trade unions in the Code of Practice: if the legislation was read together with the Code of Practice, its meaning was reasonably clear.
6. COMMENTARY
In
Metrobus v. Unite
, the argument was lead that on the authority of the European Court of Human Rights
’ decision in the case of
Enerji
, Article 11 must be understood to protect a right to
strike. It was further argued that, on the authority of the Court’s decision in
Demir
, the substance and nature of that right fell to be interpreted with reference to ESC and ILO jurisprudence. And it was argued, again on the authority of
Demir
, that any interference with that right had to be justified under Article 11(2) with reference to ESC and ILO standards. The Court of Appeal rejected these arguments.
Enerji
, it said, was not good authority. Though the European Court had stated clearly that an interference with the right to strike would have to be justified under Article 11, it had not explained its reasoning at any length. Neither was
Demir
good authority for the argument that the nature and substance of the right to strike must be decided with reference to ESC and ILO standards. In
Demir
, international labour standards had merely provided part of the context for the Court of Human Rights
’
decision. International labour standards were certainly interesting, Lloyd LJ admitted, but hardly relevant to the Court of
Appeal’s decision
in the instant case. The approach taken by the Court of Appeal suggests a reticence to engage with arguments based on international human rights and labour standards. Such reticence provides a sharp contrast with the attitude of the European Court of Human Rights, which has been increasingly insistent, in recent years, on the need to have reference to sources of international law other than the Convention when interpreting Convention rights. In
Demir
, the Court provided a particularly clear statement of this approach and then utilised it to rule contrary to decades of prior case law that Article 11
did
protect a right to collective bargaining. A few months later, it took the further step in
Enerji
of ruling that Article 11 protected a right to strike. In refusing to acknowledge the significance of these decisions, the Court of Appeal has added to a list of cases in which British courts have paid little heed to arguments based on Article 11 ECHR. And it has brought to mind the decisions of judges such as Lord Denning, who resisted decades ago the efforts of Parliament to grant workers a right to strike. Whether the
Demir
and
Enerji
judgments will be accorded greater weight by British courts in future decisions remains to be seen. In the meantime,
the Court of Appeal’s decision in
Metrobus v Unite
is authority for the following interpretations of the information and notice
requirements contained in TULRCA 1992. First, that the obligation to inform the employer of
the result of a ballot under s. 231A exists independently of the union’s decision whether or not to
take industrial action. Second, that in a ballot of around 800 workers, the term
‘as soon as reasonably practical’
contained in s. 231A can usually
be understood to mean ‘on the same day as the result of the ballot becomes known’
. Third, that in respect of industrial action which will involve check-off and non check-off union members, the choice offered in ss. 226(2)(c)(ii) and 234A(3)(a)(ii) as to the type of information which needs to be given by the union arises only in respect of the check-off employees. Fourth, that inaccuracies or errors in figures supplied by a trade union do not constitute a breach of s 234A(3D) provided that the inaccuracies or errors relate to figures which the trade union was
not
required to provide
