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December 2011 | 21.12.2011
POA application to European Courts for Trade Union Rights
The civil unrest and riots that we witnessed in August across our towns and cities frightened the general public and shook the Coalition Government to the core. It made me realise once again, how professional the POA membership are as a front line emergency service.
In my last Gatelodge article (October 2011 issue, page 6) I informed the membership that the POA application has been lodged in the European Court of Human Rights in Strasbourg.
I would like to take this opportunity to thank Adrian Watts (HMP Birmingham) and Jacqueline Bates (HMP Buckley Hall) for agreeing to be applicants along with the POA against the Government of the United Kingdom of Great Britain and Northern Ireland. This application has been a long time coming and I am grateful to Thompsons Solicitors and John Hendy QC (and indeed the membership) for being so patient in our quest to regain our Trade Union rights. It is worth reminding ourselves of the basis of our application as I am sure there are many younger members who are not aware and for that matter older members who have forgotten.
Synopsis of application
The POA is an independent Trade Union which represents prison officers and related grades in England, Scotland, Wales and Northern Ireland. From our inception in 1939, we were free to take industrial action. However, a case in 1993 held that because prison officers have powers of a constable, they were not “workers” for the purposes of the relevant legislation. This meant that any inducement by the POA for industrial action would not be protected against civil liability. This was reinforced by statute in 1994 which had the effect of prohibiting us from inducing prison officers to take industrial action. The prohibition extended to private sector custody officers.
Nor do we have the right to free collective bargaining. Our pay is determined by the Secretary of State, on the basis of non-binding recommendations of a Government appointed body, the Prison Services Pay Review Body (PSPRB). Whilst we discuss other matters with the Secretary of State (through the appropriate structures at appropriate levels) in order to attempt to protect the interests of our members, the absence of the right to strike effectively means that what would otherwise be collective bargaining is collective begging. Nor has the Government made any provision for free collective bargaining in relation to prison custody officers in the private sector and the employers of POA members in the private sector largely ignore the POA’s efforts to engage in collective bargaining. Thus prison officers and the POA in England, Wales and Northern Ireland are denied both the right to strike and, effectively, the right to collective bargaining. The SNP did not re-apply section 127 as Scotland is covered by a partnership agreement and binding arbitration.
John Hendy QC has submitted on our behalf that:
- The absolute prohibition on prison officers’ right to take industrial action
- The absolute prohibition on the Union’s right to call or support industrial action by the NEC
- The absolute prohibition on prison officers’ right to free collective bargaining over pay
- The absence of prison officers’ right to free collective bargaining over other matters
- The absence of effective alternative mechanisms to otherwise protect their interests are incompatible with the right under Article 11 ECHR to ‘freedom of assembly including the right to belong to a trade union for the protection of your interests’.
The European Court of Human Rights has consistently held that freedom of association includes more than simply being free to join a union. The POA must also have the ability to protect its members’ interests. The POA contends although the Contracting State has a margin of appreciation to determine how these interests may be protected, it is necessary for the State at least to ensure free collective bargaining and to protect the right to strike. These are amongst the essential elements guaranteed by Article 11(1), and the State’s margin of appreciation is limited in that it must guarantee these essential elements in order to fulfil its positive obligation to ensure that an individual’s right to join a trade union for the protection of his or her interests is fulfilled.
Denial of both these essential elements (free collective bargaining and the right to strike) necessarily constitutes a breach of Article 11. The POA application then goes on to produce a wide, varied evidenced-based argument that has accumulated over a period since 1994 when the Criminal Justice Public order act and Section 127 and 126 were applied.
I hope this gives a flavour of our application. I do not know when this matter will be heard but at least the application is in and we have a glimmer of hope for the future.
Fair and sustainable
As we head into the Christmas period the proposed introduction of new working structures in HM Prison Service will be widely discussed. The NEC has called an information and special delegates’ conference on Monday 9 January 2012 prior to balloting the POA members in England and Wales who are affected by the proposed changes. Information prior to this will be available by circular and on our website. It is vital that the membership fully understands this document and I would encourage everyone to read the document and if you do not understand it, or have any queries, branch officials should invite their NEC representative into their establishments to discuss with the membership prior to the special delegates conference. In this edition of Gatelodge you will find an insert regarding fair and sustainable.
Finally, I wish every POA member success for 2012 and I thank you for being supportive of your local officials at establishment level who do a magnificent job on behalf of the membership. I also thank you for your support of the National Executive Committee who always do their best for the membership in the most difficult of times.