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Can Outsourced Workers Assert a Right to Collectively Bargain with a University?

on Friday, 03 May 2019.

The High Court 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 based at the University of London.

The CAC is an independent body primarily tasked with deciding applications relating to statutory recognition and derecognition under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This is the body to whom parties can apply for recognition or derecognition, where there is no agreement on voluntary recognition.

In the case of R (on the application of Independent Workers Union of Great Britain) v Central Arbitration Committee, the Independent Workers Union of Great Britain (IWGB) represented 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 had made two applications to the CAC to be recognised by CS Ltd and the University for collective bargaining purposes under TULRCA.

In relation to the application to be recognised by CS Ltd, the CAC determined that the path to compulsory recognition of the IWGB was blocked by CS Ltd's pre-existing voluntary recognition agreement with Unison which already covered all staff employed by CS Ltd to work at University of London sites.

In relation to the application to be recognised by the University, the CAC concluded that as the University was not the employer of the workers, there was no basis to impose recognition on it. There was also an existing agreement between the University and Unison that covered everyone except very senior staff.

Whilst there is no direct way of appealing a CAC decision, the IWGB sought judicial review in the High Court. The IWGB argued that the prohibition on recognition if the employer already recognised a union was incompatible with Article 11 of the European Convention on Human Rights, the right to freedom of association. In relation to recognition by the University, the IWGB also argued that the right to collective bargaining in Article 11 should extend to bargaining with the entity that effectively controls the terms under which the workers work.

The High Court held that whilst the IWGB could not seek compulsory recognition due to the pre-existing voluntary agreement with Unison, it was free to seek voluntary collective bargaining arrangements with both CS Ltd and the University. The Court held that that was sufficient to comply with Article 11 but, that if that were wrong and Article 11 was infringed, this would be justified by the need to protect the rights and freedoms of others, namely, CS Ltd, Unison and those workers in the bargaining unit who wished to be continue to be covered by the arrangements with Unison.

The High Court also considered the IWGB's argument that the right to collective bargaining in Article 11 should extend to bargaining with the entity that effectively controls the terms under which the workers work. The Court held that Article 11 does not require that there should be a right of compulsory collective bargaining with the University which is not the employer and with whom the workers have no contractual relationship. The Court also noted that to impose compulsory recognition on the University would undermine the manner in which the University had chosen to conduct its operations in outsourcing certain roles to a third party. To do so would restrict the University's economic rights and freedoms.

This is a helpful decision for universities as it helps to curtail rights to compulsory collective bargaining and allows flexibility in outsourcing particular roles to third party providers. Of course, as in this case, universities are free to enter into voluntary recognition arrangements with unions and it is often preferable to do so because it allows greater flexibility in respect of which matters the collective bargaining should cover.


For further information please contact Katie Hurst in our Higher Education team on 0121 227 3751.

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