Closed shop in crisis
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THE COMING months will be crucial to the closed shop. It will no doubt survive, but some modifications, as least in law, seem inevitable, writes DOUGLAS AINLEY.
The European Court of Human Rights recently ruled that British Railways were wrong to dismiss three employees — Young, James and Webster — for refusing to join a union closed shop. A claim against the British Government that their dismissal without compensation violated Article I of the European Convention of Human Rights — which guarantees the right to freedom of association — was upheld.
However, this decision is not directly enforceable in Britain, though the Government has ageed compensation. It does not outlaw closed shops in the UK or anywhere else as the court refused to review the legality of the system generally. The court also did not stipulate whether the right to freedom of association, which includes the right to join or form a trade union, carries with it, by implication, a "negative" right not to join a union nor to be compelled to join.
The decision was confined to the particular facts of the case. The three employees were dismissed in 1976 after British Rail concluded a closed shop agreement with the NUR, ASLEF and TSSA, and the three refused to join one of these unions. As the law then stood, under the Labour Government's Trade Union and Labour Relations Acts, no right to compensation existed for dismissal in such circumstances.
The court found that the threat of dismissal involving loss of livelihood amounted to a serious form of compulsion to join a union. This compulsion was also directed against persons employed by British Rail before a closed shop was introduced.
The present Government's official position is that, following the changes effected by the 1980 Employment Act, employees dismissed in similar circumstances now have the right to seek compensation for unfair dismissal. So the Government need not change the law to comply with its obligations under the European Convention of Human Rights.