Outsourced workers did not have a right to compulsory collective bargaining with a third party


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The High Court has dismissed a judicial review challenge to two decisions of the Central Arbitration Committee (CAC) rejecting applications for statutory trade union recognition in respect of a group of outsourced workers at the University of London in R (on the application of Independent Workers Union of Great Britain) v Central Arbitration Committee.

The Independent Workers Union of Great Britain (IWGB) represents security guards, post room workers, audio-visual staff, porters and receptionists working for Cordant Security Ltd (CS Ltd) at various University of London sites. It made two applications to be recognised by CS Ltd and the University for collective bargaining purposes under Schedule A1 of TULR(C)A 1992. In relation to the application to be recognised by CS Ltd, the CAC found that the application was blocked by a pre-existing voluntary recognition agreement that CS Ltd had with Unison. The CAC then noted that under Schedule A1, recognition could only be imposed on the employers of workers, and as the University was not the employer of the workers represented by IWGB their application failed.

The IWGB sought judicial review of this decision in the High Court, arguing that the right to bargain collectively with an employer is recognised as an essential element of the right of freedom of association under Article 11 of the European Convention on Human Rights (ECHR) and that Schedule A1 should be interpreted accordingly. The High Court rejected this, holding that the IWGB was still free to seek voluntary collective bargaining arrangements. The IWGB also argued that the right to collective bargaining in Article 11 should be extended to bargaining with the entity that effectively controls the terms and conditions under which the workers work (namely the University). The High Court rejected this, holding that to permit the IWGB to obtain compulsory collective bargaining rights with the University would undermine the matter in which it has chosen to conduct its operations by outsourcing certain services to a third-party employer.

Take note: The High Court's decision has effectively put paid to the argument that an end-user of outsourced services can be deemed to be an employer of the employees carrying out the services for collective bargaining purposes. If it had found that this was possible it would have altered the nature of outsourcing and the benefits of such an arrangement.

This article is taken from HR Law - April 2019.

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