R (on the application of Independent Workers' Union of Great Britain) v Central Arbitration Committee [2019] EWHC 728

Facts:

The IWGB represents outsourced security guards, post room workers, audio-visual staff, porters and receptionists who work for Cordant Security Ltd at various University of London sites. It made two applications to the CAC to be recognised by Cordant and the University for collective bargaining purposes. There was an existing voluntary recognition agreement in place between Cordant and Unison that covered all staff employed by Cordant to work at the University's sites. There was also an existing agreement between the University and Unison that covered everyone except very senior staff. The CAC held that the path to compulsory recognition by Cordant was blocked by the existing recognition agreement with Unison. With regard to the application to be recognised by the University, the statutory scheme only imposed recognition on the employer. As the University was not the employer of the workers, the application failed. The IWGB sought a judicial review of the CAC's decision, arguing 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).

Decision:

The judicial review was rejected. The High Court held that the right to freedom of association under Article 11 of the European Convention on Human Rights does not confer a right to compulsory collective bargaining with a third party, who is not a party to the contract between workers and an employer, but who controls or decides the terms of that contract, such as the end-user in an outsourcing arrangement. In addition, the IWGB could not seek compulsory recognition due to the pre-existing agreements with Unison.

This is a helpful decision for employers. If the High Court had decided that a union could be recognised by a 'de facto' employer, it could have had serious implications in outsourcing situations.