FOURTH SECTION
DECISION
Application no. 59253/11
The Professional Trades Union for Prison, Correctional and Secure Psychiatric
Workers and Others (POA and Others)
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on
21 May 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section
Registrar,
Having regard to the above application lodged on 14 September
2011,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant is the Professional Trades
Union for Prison, Correctional and Secure Psychiatric Workers (“the POA”), a
listed and certified trade union in the United Kingdom. The other applicants
are British nationals: Ms Jacqueline Bates, born in 1960, and Mr Adrian Watts,
born in 1965. They are both resident in the United Kingdom and are employed as
prison officers, Ms Bates in a State-run prison and Mr Watts in a prison that
was transferred to private-sector management in 2011. They are members of the
POA. Ms Bates indicated she is the chair of the union branch in her
establishment, and Mr Watts indicated that he is secretary to the union branch
in his place of employment.
The applicants were represented by Ms V. Phillips
of Thompsons Solicitors, a law firm in London, and advised by Mr J. Hendy QC
and Professor S. Fredman QC, lawyers practising in London. The United Kingdom
Government (“the Government”) were represented by their Agents, Ms A.
Sornarajah and Ms R. Tomlinson of the Foreign and Commonwealth Office.
A joint submission was
received from the European Trades Union Confederation (ETUC) and the Trades
Union Congress (TUC), which had both been given leave by the President to
intervene as third parties in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2).
A. The circumstances of the case
The facts of the case, as submitted by the
parties, may be summarised as follows.
In 1993 it was established that prison officers
were forbidden by law to take industrial action. The issue arose in the context
of injunction proceedings taken against the POA to prevent it organising
industrial action (Home Office v. Evans, 19 May 1993, unreported). The
High Court (May J) ruled that since prison officers were vested with the
“powers or privileges of a constable” (Prisons Act, 1952, section 8), they were
for this reason expressly excluded from the terms “employees” and “workers”
within the meaning of the statutory provisions governing lawful industrial
action (Trade Union and Labour Relations (Consolidation) Act, 1992, sections
219 and 280). The following year, legislation was introduced to restore to
prison officers the status of workers for the purpose of employment law, while
maintaining the ban on industrial action (Criminal Justice and Public Order
Act, 1994, sections 126 and 127). The parties expressed contrasting views on
these developments. For the applicants, the Evans ruling was “an
unintended legal anomaly”, and section 127 of the 1994 Act “a sudden change of
long-standing policy by fixing in legislation what was a surprising and
unheralded court decision”. The Government rejected that view, stating that it
was the intention of Parliament to give a clear statutory basis to the ban on
industrial action by prison officers, rendered necessary by the willingness of
the POA to take such action.
Industrial relations in the prison service are
conducted in various formats and in accordance with a variety of procedures. As
in other parts of the public sector in the United Kingdom, there are in the prison
service what are known as "Whitley Councils", at both local and
national level. These are joint bodies, made up of representatives of
management and staff, whose purpose is to facilitate co-operation. Acting
principally as forums for consultation and dialogue, they do not encompass
binding dispute settlement mechanisms. For this reason, the applicants
considered that the dialogue that takes place within the Whitley Councils is
not true collective bargaining. They held the same view in relation to the establishment-level
disputes procedure (Prison Service Order No. 8525), which details the procedure
to be followed in such situations but does not lead to a resolution binding on
management.
There have been successive industrial
relations-agreements within the prison sector. In 2001, the POA and the prison
service entered into the Industrial Relations Procedure Agreement (“IRPA”). The
IRPA, which did not apply to the issue of remuneration, included a legally
binding prohibition on strike action. The applicants described the IRPA as
“asymmetric” in this regard, as there was no equivalent binding obligation on
the part of the State. There were disagreements between the two sides over the
precise scope of application of the IRPA. On 27 January 2004 the POA served
notice of their intention to withdraw from the IRPA, which terminated one year
later.
A new agreement, the Joint Industrial Relations
Procedure Agreement (“JIRPA”), was reached in November 2004. It too contained
an undertaking by the POA not to take industrial action. The JIRPA, which did
not apply to remuneration, took effect in January 2005. At the same time, the
statutory prohibition on industrial action was disapplied. Formal assurances
were given to Parliament that it would be reactivated in the event of the JIRPA
being terminated. According to the applicants, there was again repeated
disagreement between the two sides as to the scope of the JIRPA, leading the
POA to give notice of termination in May 2007, effective one year later. The
Government stated that on the whole the JIRPA operated successfully, as shown
by the number of new policies introduced within the prison service and the
number of changed policies, which were adopted without dispute. They added
that, notwithstanding the undertaking given, the POA threatened industrial
action in 2004, 2005 and 2006. A special delegates’ conference of the POA voted
in February 2008 not to accept any further agreement that included a no-strike
undertaking. With the termination of the JIRPA on 8 May 2008, the statutory
prohibition on industrial action was brought back into force. A new provision
was added to the 1994 Act empowering the Secretary of State to suspend and
revive the prohibition (section 127A).
A new agreement within the prison service took
effect in February 2011, the National Disputes Resolution Procedure for
Changes for Specified Terms and Conditions (“the NDRP”) and is currently in
force. It provides for binding arbitration, but, like previous agreements, does
not apply to pay. The situation in Scotland is different. There the Voluntary
Industrial Relations Agreement for the Scottish prison service provides that,
in the absence of agreement, pay disputes are to be resolved by binding
independent arbitration.
The issue of remuneration of prison officers
employed in State-run prisons in England, Wales and Northern Ireland comes
within the remit of the Prison Services Pay Review Body (“PSPRB”), created in
April 2001. For private-sector prison establishments, remuneration and other
employment matters are agreed contractually.
Composed of independent members, the function of
the PSPRB is to make recommendations each year on prison-officer pay to the
Secretary of State for Justice. At the outset of each exercise, the Secretary
of State may give directions, in the form of a “remit letter”, to the PSPRB
setting out the considerations to which they are to have regard (Regulation 4,
Prison Service (Pay Review Body) Regulations 2001). This power has been
used repeatedly. In addition, the Chair of the PSPRB meets with the Chancellor
of the Exchequer or the Chief Secretary of the Treasury prior to the start of
each review exercise to discuss the general economic context. Trade union
involvement in the process takes the form of submitting evidence and making
representations to the PSPRB (Regulation 5). The PSPRB’s recommendations are
not binding on the Secretary of State, who may accept them, or “make such other
determination ... as he thinks fit” (Regulation 8, Prison Service (Pay Review
Body) Regulations 2001).
On 20 August 2004 the POA brought a complaint
before the Committee on Freedom of Association of the International Labour
Organisation alleging that the statutory prohibition of industrial action by
prison officers constituted a breach of the right to strike under ILO
Convention No. 87. The Committee’s conclusions on the case are set out below
(at paragraphs 19 and following).
The applicants stated that industrial action,
including strike action, occurred from time to time in the prison service
before 1993. They provided examples of strikes at local level and, at national
level, of other forms of industrial action in the 1970s and 1980s. On 29 August
2009 the POA organised, for the first time, a national strike by prison
officers, in protest against the Government’s decision to stage that year’s pay
rise. According to the Government, notice of the strike was given by telephone
less than an hour before the strike commenced at 7 a.m. Government lawyers
obtained an injunction against the POA by 1 p.m. that day. Prison officers
returned to work that evening, about 12 hours after the strike began. The
strike disrupted the normal operation of the prison service, and in one
institute for young offenders the absence of prison officers led to serious
disorder that lasted for three days and caused extensive material damage. The
applicants countered that the day had passed without incident in over 130 other
prison establishments affected by the strike. As for the establishment referred
to by the Government, an official report into the incident had noted that the
rationale for the violence was complex, the strike by prison officers being
just one contributing factor, amplified by negative reporting on television.
The report had considered that the indiscipline was spontaneous, and so could
not have been foreseen or avoided.
The Government maintained that the POA was
intent on withholding its members’ services as part of a general public service
strike on 30 November 2011, and that it had sought to rely on health and
safety concerns which the Government described as spurious. The situation was
ultimately resolved the day before under threat of legal action. The applicants
rejected the Government’s account, asserting the validity of their concerns at
the time, given that other categories of prison staff would be on strike, as
well as fire services and ambulance crew. On the day of the strike, POA members
had merely held lunchtime meetings, with management permission, so as to
demonstrate their support for the aims of the strike. Another public-sector
strike took place on 10 May 2012. According to the Government, the POA
indicated beforehand that its members would just attend lunchtime meetings.
Despite this, POA members stayed away from work for several hours in over sixty
establishments, necessitating the intervention of prison service lawyers. The
applicants denied that the actions of POA members on that day amounted to
industrial action. They noted that while here had been correspondence from
prison-service lawyers, no proceedings had been issued and that the POA
leadership had ordered its members to resume work at lunchtime. The action
taken that day had not led to any danger to persons or property.
B. Relevant domestic law and practice
The Prisons Act 1952 provides at section 8:
“Every prison officer while acting as such shall have all the
powers, authority, protection and privileges of a constable.”
The relevant provisions of the Trade Union and
Labour Relations (Consolidation) Act 1992 read as follows:
“219.- Protection from certain tort liabilities.
(1) An act done by a person in contemplation or furtherance of
a trade dispute is not actionable in tort on the ground only-
(a) that it induces another person to break a contract or
interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract
(whether one to which he is a party or not) will be broken or its performance
interfered with, or that he will induce another person to break a contract or
interfere with its performance.
(2) An agreement or combination by two or more persons to do or
procure the doing of an act in contemplation or furtherance of a trade dispute
is not actionable in tort if the act is one which if done without any such
agreement or combination would not be actionable in tort.
...
244.- Meaning of ‘trade dispute’ in Part V.
(1) In this Part a ‘trade dispute’ means a dispute between
workers and their employer which relates wholly or mainly to one or more of the
following-
...
280.- Police service.
(1) In this Act ‘employee’ or ‘worker’ does not include a
person in police service; and the provisions of sections 137 and 138 (rights in
relation to trade union membership: access to employment) do not apply in
relation to police service.
(2) ‘Police service’ means service as a member of any constabulary
maintained by virtue of an enactment, or in any other capacity by virtue of
which a person has the powers or privileges of a constable.”
The Criminal Justice and Public Order Act 1994
provides as relevant:
“127.- Inducements to withhold services or to indiscipline.
(1) A person contravenes this subsection if he induces a prison
officer-
(a) to take (or continue to take) any industrial action;
(b) to commit a breach of discipline.
(1A) In subsection (1) ‘industrial action’ means-
(a) the withholding of services as a prison officer; or
(b) any action that would be likely to put at risk the safety
of any person (whether a prisoner, a person working at or visiting a prison, a
person working with prisoners or a member of the public).
(2) The obligation not to contravene subsection (1) above shall
be a duty owed to the Secretary of State or, in Scotland, to the Scottish
Ministers or, in Northern Ireland, to the Department of Justice .
(3) Without prejudice to the right of the Secretary of State or,
in Scotland, to the Scottish Ministers or, in Northern Ireland, of the
Department of Justice, by virtue of the preceding provisions of this section,
to bring civil proceedings in respect of any apprehended contravention of
subsection (1) above, any breach of the duty mentioned in subsection (2) above
which causes the Secretary of State or, in Scotland, to the Scottish Ministers
or, in Northern Ireland, the Department of Justice to sustain loss or damage
shall be actionable, at his suit or instance, against the person in breach.
(4) In this section ‘prison officer’ means any individual who-
(a) holds any post, otherwise than as a chaplain or assistant
chaplain or as a medical officer, to which he has been appointed ... under
section 2(2) of the Prison Act (Northern Ireland) 1953 (appointment of prison
staff), or
(aa) holds any post, other than as a chaplain or assistant
chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952
(appointment of prison staff),
(c) is a custody officer within the meaning of Part I of this Act or
a prisoner custody officer, within the meaning of Part IV of the Criminal Justice Act 1991
or Chapter II or III of
this Part.
(5) The reference in subsection (1) above to a breach of
discipline by a prison officer is a reference to a failure by a prison officer
to perform any duty imposed on him by the prison rules or any code of
discipline having effect under those rules or any other contravention by a
prison officer of those rules or any such code.
(6) In subsection (5) above ‘the prison rules’ means any rules
for the time being in force under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989
or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules).
...”
The Prison Service (Pay Review Body) Regulations
2001, which entered into force on 17 April 2001, provide as relevant:
“Establishment of the Pay Review Body
2. The Prime Minister shall appoint a Pay Review Body to
examine and report on such matters relating to the rates of pay and allowances
to be applied to the prison service in England and Wales, and Northern Ireland,
as may from time to time be referred to them by the Secretary of State.
...
Directions
4. With respect to matters referred to the Pay Review
Board by him, the Secretary of State may give directions to the Pay Review Body
as to the considerations to which they are to have regard and as to the time
within which they are to report; and any such directions may be varied or
revoked by further directions under these Regulations.
Notice
5. Where a matter has
been referred to the Pay Review Body, they shall give notice of the matter and
of any relevant direction to such organisations appearing to them to be
representative of persons working in the prison service in England and Wales,
and Northern Ireland, and shall afford every such organisation a reasonable
opportunity of submitting evidence and representations on the issues arising,
Report
6. Where a matter has been referred to the Pay Review
Body, their report shall contain their recommendations on that matter and such
other advice relating to that matter as they think fit.
...
Determination of rates of pay and allowances
8. Where, following the reference of any matter to them the Pay
Review Body have made a report, the Secretary of State may determine the rates
of pay and allowances to be applied to the prison service in England and Wales,
and Northern Ireland, in accordance with the recommendations of the Pay Review
Body, or make such other determination with respect to the matters in that
report as he thinks fit.”
C. Relevant international materials
As noted above (see paragraph 12), the POA made
a complaint before the ILO Committee on Freedom of Association in 2004,
examined as case no. 2383. While there is no provision in the Conventions
adopted by the International Labour Organisation expressly recognising a right
to strike, both the Committee on Freedom of Association and the Committee of
Experts on the Application of Convention and Recommendations have progressively
developed a number of principles relating to the right to strike, based on
Articles 3 and 10 of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) (see “Giving globalisation a human face”,
International Labour Office, 2012, at paragraph 117). This Convention was
ratified by the United Kingdom on 27 June 1949. The POA alleged that
section 127 of the 1994 Act constituted a breach of the right to strike, as
prison officers did not exercise authority in the name of the State and did not
provide essential services in the strict sense of the term. It further
complained that no adequate compensatory measures had been put in place whereby
prison officers or their union could protect their interests in the absence of
a right to strike.
In its first consideration of the case (336th
Report, March 2005), the Committee on Freedom of Association held:
“763. The
Committee has considered that officials working in the administration of
justice are officials who exercise authority in the name of the State and whose
right to strike could thus be subject to restrictions or even prohibitions [see
Digest, op. cit., para. 537]. The Committee considers that to the extent that
prison officers and prisoner custody officers exercise authority in the name of
the State, their right to strike can be restricted or even prohibited.
...
766. The
Committee recalls that to determine situations in which a strike could be
prohibited, the criteria which have to be established are the existence of a
clear and imminent threat to the life, personal safety or health of the whole
or part of the population [see Digest, op. cit., para. 540]. The Committee
considers that the prison service is clearly one where the interruption of the
service could give rise to an imminent threat to the life, personal safety or
health of the whole or part of the population, in particular, the prisoners and
the wider public.
767. Considering that the prison service constitutes an
essential service in the strict sense of the term and that prison officers, as
well as prisoner custody officers to the extent that they perform the same
functions, exercise authority in the name of the State, the Committee is of the
view that it is in conformity with freedom of association principles to
restrict or prohibit the right to take industrial action in the prison
service.”
The Committee on Freedom of Association then
raised the issue of compensatory guarantees:
“769. ... The Committee recalls that where the right to strike
is restricted or prohibited in certain essential undertakings or services,
adequate protection should be given to the workers to compensate for the
limitation thereby placed on their freedom of action with regard to disputes
affecting such undertakings and services [see Digest, op. cit., para. 546]. The
Committee requests the Government to take the necessary measures so as to
establish appropriate mechanisms in respect of prisoner custody officers in
private sector companies to which certain of the functions of the prison have
been contracted out so as to compensate them for the limitation of their right
to strike, and to keep it informed in this respect.
...
773. ...[T]he Committee notes that the Government does not
specify the method (including any relevant guidance or criteria) for the
appointment of the members of the Pay Review Body, and recalls that in
mediation and arbitration proceedings it is essential that all the members of
the bodies entrusted with such functions should not only be strictly impartial
but if the confidence of both sides, on which the successful outcome even of
compulsory arbitration really depends, is to be gained and maintained, they
should also appear to be impartial both to the employers and to the workers
concerned [see Digest, op. cit., para. 549]. With regard to [the nature of
PSPRB recommendations], the Committee notes that the Government does not
specify which exceptional circumstances might justify a departure from the
recommendations of the Pay Review Body. The Committee also observes that the
text of Regulation 8 of the Prison Service (Pay Review Body) Regulations, 2001,
seems to leave complete discretion upon the Secretary of State as regards the
implementation of the recommendations of the Pay Review Body, by providing that
‘where, following the reference of any matter to them, the Pay Review Body has
made a report, the Secretary of State may determine the rates of pay and
allowances to be applied to the prison service in England and Wales, and
Northern Ireland, in accordance with the recommendations of the Pay Review
Body, or make such other determination with respect to the matters in that
report as he thinks fit’. The Committee recalls that as regards the nature of
appropriate guarantees in cases where restrictions are placed on the right to
strike in essential services and the public service, restrictions on the right
to strike should be accompanied by adequate, impartial and speedy conciliation
and arbitration proceedings in which the parties concerned can take part at
every stage and in which the awards, once made, are fully and promptly
implemented [see Digest, op. cit., para. 547]. The Committee requests the
Government to initiate consultations with the complainant and the prison
service with a view to improving the current mechanism for the determination of
prison officers’ pay in England, Wales and Northern Ireland. In particular, the
Committee requests the Government to continue to ensure that: (i) the awards of
the Prison Service Pay Review Body are binding on the parties and may be
departed from only in exceptional circumstances; and (ii) the members of the
Prison Service Pay Review Body are independent and impartial, are appointed on
the basis of specific guidance or criteria and have the confidence of all
parties concerned. The Committee requests to be kept informed in this respect.”
The Committee on Freedom of Association
submitted the following recommendations to the ILO Governing Body:
“777. In light of the foregoing conclusions, the Committee
invites the Governing Body to approve the following recommendations:
(a) Noting that the prison service is an essential service in
the strict sense of the term where the right to strike can be restricted or
even prohibited, the Committee requests the Government to take the necessary
measures so as to establish appropriate mechanisms in respect of prisoner
custody officers in private sector companies to which certain of the functions
of the prison have been contracted out so as to compensate them for the
limitation of their right to strike.
(b) The Committee requests the Government to initiate
consultations with the complainant and the prison service with a view to
improving the current mechanism for the determination of prison officers’ pay
in England, Wales and Northern Ireland. In particular, the Committee requests
the Government to continue to ensure that:
(i) the awards of the Prison Service Pay Review Body are
binding on the parties and may be departed from only in exceptional
circumstances; and
(ii) the members of the Prison Service Pay Review Body are
independent and impartial, are appointed on the basis of specific guidance or
criteria and have the confidence of all parties concerned.
(c) The Committee requests to be kept informed of developments
in respect of the above.”
The ILO Governing Body approved them (Minutes of the 292nd
Session, 22-24 March 2005, paragraph 154).
Since its initial assessment of the case, the
Committee on Freedom of Association has reviewed the situation periodically. In
its Report No. 359 of March 2011, it regretted the state of relations between
the POA and the Government, and that little progress had been made in improving
the mechanism for the determination of prison officers’ pay. Regarding the
binding nature of PSPRB awards, that report states:
“181. ... [T]he Committee notes the Government’s statement
that matters of public finances are for the Government to decide and that
departures from PSPRB recommendations might on occasion become necessary to
ensure acceptable award levels. The Committee recalls that the reservation of
budgetary powers to the legislative authority should not have the effect of
preventing compliance with the terms of awards handed down by a compulsory
arbitration tribunal. Any departure from this practice would detract from the
effective application of the principle that, where strikes by workers in
essential services are prohibited or restricted, such prohibition should be
accompanied by the existence of conciliation procedures and of impartial
arbitration machinery, the awards of which are binding on both parties.”
The most recent consideration of the situation
is contained in Report No. 364 of the Committee on Freedom of Association, of
June 2012. The Committee took note of the information provided by the
Government on latest developments (including the NDRP) and commented:
"75. The Committee notes the
information provided by the Government with satisfaction. Observing that it has
been dealing with this case since 2005 and has been requesting the Government
to initiate consultations with the complainant and the prison service with a
view to achieving a satisfactory solution to the need to provide for an
appropriate mechanism to compensate for the strike prohibition, the Committee
wishes to recognize the efforts made by all the parties concerned and commends
the Government’s desire to address the issues raised in this case. It
encourages the Government to maintain full, frank and meaningful consultations
with all interested parties in the future."
COMPLAINT
The applicants complained under Article 11 of
the Convention that the outright statutory ban on industrial action by all
prison officers and prison custody officers was in itself an unjustified
restriction on the exercise of their right to freedom of association. They
further complained of the inexistence of adequate measures to compensate for
the removal, by virtue of British law, of an essential component of trade union
rights.
THE LAW
As set out above, the subject-matter of this
application has already been raised before the ILO Committee on Freedom of
Association. This raises a question of admissibility under Article 35 § 2 (b) of the Convention, which reads as follows:
“2. The Court shall not deal with any application
submitted under Article 34 that
...
(b) is substantially the same as a matter that has
already been examined by the Court or has already been submitted to another
procedure of international investigation or settlement and contains no relevant
new information.”
The Court recalls that the
purpose of this provision is to avoid a plurality of international proceedings
relating to the same cases. This is achieved by restricting the Court’s
competence in relation to any applications falling within the scope of the
provision. The Court has no jurisdiction over such cases (see OAO
Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 520, 20 September 2011, with further
references). For this reason, while the Government
did not advert to this point in their submissions, it is necessary for the
Court to examine it of its own motion. It cannot set this admissibility
criterion aside merely because the Government have not made a preliminary
objection based upon it (see, mutatis mutandis, Walker
v. the United Kingdom (dec.), no. 34979/97,
ECHR 2000-I, which concerned the application of the six-month time-limit under
Article 35 § 1 of the Convention).
The Court first recalls that it has already held
that the Committee on Freedom of Association constitutes another international
procedure for the purposes of this admissibility criterion (see Fédération hellénique des syndicats des employés du secteur
bancaire v. Greece (dec.), no. 72808/10, 6
December 2011). For this admissibility criterion to apply, the application to
the Court must be “substantially the same” as the complaint to the Committee on
Freedom of Association. Having regard to the detailed examination of the POA’s
complaint conducted by the Committee on Freedom of Association, whose
successive reports on the matter the applicants appended to their application
(see the extracts at paragraphs 20-24 above), it is clear to the Court
that their complaint under the Convention is the same in substance. Indeed, it is
virtually identical, the essence of their argument in both sets of
international proceedings being that the same provisions of domestic law (see
paragraphs 15-18 above) contravene the international obligations of the United
Kingdom under both Article 11 of the Convention and the relevant provisions of
ILO Convention No. 87.
This is not sufficient,
however, to settle the issue under Article 35 § 2 (b). According to the
principles established in Convention case-law, the complainant before the other
international organ should also be the same as the applicant before the Court
(see Folgerø and Others v. Norway, (dec.) no. 15472/02,
14 February 2006, with further references). As regards the POA, the first
applicant, this condition is met, since it was the complainant before the
Committee on Freedom of Association (contrast with Eğitim ve Bilim
Emekçileri Sendikası c. Turquie, no 20641/05, § 38, CEDH 2012 (extraits); Council of Civil
Service Unions v. the United Kingdom,
no. 11603/85, Commission decision of 29 January 1987, Decisions and Reports 50, pp.
236-37; Evaldsson and Others v. Sweden, (dec.) no. 75252/01,
28 March 2006).
Turning to the second and third applicants, it
is evident that they were not, and could not be, parties to the complaint to the
ILO, this procedure being collective in nature, with standing confined to trade
unions and employer organisations. In the above-mentioned Council of Civil Service Unions case, the Commission
referred to this exclusion of individual complaints when declining to hold the
case inadmissible under the then equivalent of Article 35 § 2 (b). The Court
made similar reference to the exclusion of individual complaints in its
reasoning in the Evaldsson case, cited above. The other international
procedure in that case was the system for bringing collective complaints before
the European Committee of Social Rights. As it name indicates, that system is
reserved to collective complaints, brought, inter alios, by trade unions
and employer organisations. In Evaldsson, the complaint had been brought
before the European Committee by a national confederation representing
employers’ interests and not those of individual workers, such as the five
individual applicants in the subsequent application to the Court. Furthermore,
the Court found it material for the purposes of Article 35 § 2 (b) that the
complaint of the employers’ confederation to the European Committee had been of
a general character, whereas the later application under the Convention
addressed the specific situation of the five individual applicants. In the
light of these various reasons, the Court held in Evaldsson that the
application before it could not be regarded as substantially the same as the complaint
brought earlier before the European Committee. However, the Court considers
that the circumstances of the present case are to be distinguished from those
at issue in both of these precedents. In particular, the second and third
applicants must be seen as being closely associated with the proceedings and
the complaints before the Committee on Freedom of Association, by virtue of
their status as officials of the POA. In contrast, in the Council of Civil
Service Unions case, it was not the applicant trade union before the
Convention institution but the national trade union federation that had
complained, on its own behalf, to the ILO. Similarly, in the Evaldsson
case, the collective complaint had been taken by the national employers’
federation, which clearly had no real link to the five individual applicants,
who were non-unionised employees in the construction industry.
The Court would refer
instead, as a more pertinent precedent, to the decision of the Commission in Cereceda Martin
and Others v. Spain, no. 16358/90, 12
October 1992, Decisions and Reports 73, at p. 134. That case, taken by
twenty-three individual trade union representatives, was rejected as
inadmissible in light of a prior complaint to the Committee on Freedom of
Association. The Commission held that while, formally, the applicants had not
been the complainants, the complaint - supported by the applicants’ respective
trade unions - referred to precisely the same situation, namely the termination
of their employment following industrial action. It concluded that the
complaint had been, in substance, submitted by the same complainants.
In the present case, it is true the earlier
proceedings before the Committee on Freedom of Association did not concern any
specific measure taken in respect of the second and third applicants, but
focussed on the general legislative prohibition of industrial action by prison
officers. This is of little consequence, however, since the individual
situations of the second and third applicants are not unique in any relevant
respect, but simply exemplify the effects of the statutory ban, which is
likewise the subject of the present application. Accordingly, to permit them to maintain their action before the Court would
be tantamount to circumventing Article 35 § 2(b) of the Convention.
The Court therefore finds that this application
is substantially the same as a matter that has already been submitted to
“another procedure of international investigation or settlement and contains no
new information”. It must therefore be rejected in accordance with Article 35
§§ 2(b) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
