International Centre for Trade Union Rights

More documents

Recommendations

Info

PHILOSOPHY OF TRADE UNION RIGHTS ❐ NATURAL RIGHTS Locke’s property rights: pensions and trade unions Locke offers us a vision of a kind of natural law that continues to have secular relevance Tonia Novitz, Professor of Labour Law, University of Bristol The modern UK legal system takes for granted the idea that employers have property rights that they are entitled to exercise and, in so exercising, restrict workers’ action. So, by virtue of their right to private property, employers can keep trade unions recruiting for members off their premises and can resist collective bargaining which would impinge on their profit margins. It may therefore be timely to challenge the assumption that workers do not have comparable entitlements. Natural rights and property rights A search for recognition of workers’ property rights takes us back to the work of John Locke who considered that, in a ‘state of nature’, all persons were ‘equal and interdependent.’ Locke offers us a vision of a kind of natural law which continues to have secular relevance. While the world was offered to us all in common, we were able to convert parts of the world to our use and in so doing came to exercise rights of ownership over it. This was the transformative power of human labour. We have ownership of ourselves and our labour; moreover, we can come to acquire what is the product of our own labour. As Locke says: Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with it, and joined it to something that is his own and thereby makes it his property. (Locke, Second Treatise on Government (1690)) We are entitled then to the fruits of our labours, insofar as there is ‘enough and as good’ left in common for others. It is this last Lockean proviso, which reminds us that property entitlements are not absolute and that they must be subject to overriding concerns of public interest. Locke’s theory has a further limitation which is perhaps more problematic for workers, which is that he does contemplate contracts of service, whereby the servant’s labour is converted to the ownership of his master: ‘the turfs my servant has cut… becomes my property’. This is however subject to ‘the contract between ‘em’, such that the servant retains a property interest in the remuneration to which he (or she) was entitled under the contract. This is a very limited contractually based notion of property for workers, but is one which was arguably an improvement on feudal conceptions of property whereby the servant was actually regarded as the property of the master. What is most interesting from a contemporary perspective is the way that Locke’s idea of property in labour was developed subsequently by eighteenth century political philosophers. They recognised that employers were able to exploit the vulnerability of workers. In their concern, Adam Smith, Thomas Paine and John Thelwall all called on governments to respect workers’ property by allowing them the opportunity to engage in collective bargaining. For example, Adam Smith, in his Wealth of Nations (1776) recognised that in the ‘original state of things’… ‘the whole produce of labour belongs to the labourer’ and expressed concern that: ‘[w]e have no acts of parliament against combining to lower the price of work; but many against combining to raise it.’ Similarly, Thomas Paine, in The Rights of Man (1791), observed that Parliament had enacted laws which artificially limited workers’ wages, preventing workers acting in combination to secure better wages. Thelwall (The Tribune and Rights of Nature) went even further, regarding employment as being governed by an original social contract which entitled labour to a proportionate share in the profits of capital as a ‘partner’. While all three agreed that government had to permit collective bargaining and, perhaps even more significantly, democratic representation of working people, Paine went even further. From Locke’s state of nature, he derived the argument that we are all entitled to basic forms of social welfare. He was among the first to argue for a universal entitlement for all men to an old age pension. Locke’s notion that workers have at least property in the wages and other entitlements under a contract of service may seem limited, but is itself potentially significant, as we shall see when analysing the jurisprudence which has developed concerning Article 1 of Protocol No. 1 to the European Convention of Human Rights 1950 (ECHR). Moreover, Locke’s theory provided the basis on which others such as Smith, Paine and Thelwall argued for more far-reaching political reform. Their arguments would seem to underlie many contemporary features of UK public policy. For example, they claimed that workers must be entitled to act in combination to secure fairer wages, questioning the adequacy of contractual remuneration for labour unless workers are given the liberty to do so. This is of crucial contemporary relevance, given recent proposals made in the UK to place further constraints on the legality of industrial action (see, CBI, Making Britain the Place to Work: An Employment Agenda for the New Government, June 2010, 10). Similarly, Paine’s claim to a sufficient pension remains of interest. The ECHR Jurisprudence – Article 1 of Protocol No. 1 – and its UK implications The first paragraph of Article 1 of Protocol No. 1 (A1P1) reads: INTERNATIONAL union rights Page 6 Volume 18 Issue 4 2012
PHILOSOPHY OF TRADE UNION RIGHTS ❐ NATURAL RIGHTS ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’ The second paragraph states that: ‘The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ The provision makes no specific mention of workers’ entitlements (which are otherwise dealt with in the European Social Charter), and provides an apparently broad ‘public interest’ exception. Nevertheless, A1P1 would seem to have considerable implications for workers’ property entitlements as regards wages, pensions and other benefits. It may therefore be worthwhile returning to recognition of workers’ rights as human rights. In a number of cases, the European Court of Human Rights (ECtHR) has recognised workers’ wages to be possessions. 2 This is arguably more in line with Locke’s notion of contractual entitlement than any willingness to engage with issues of distributive justice, as advocated by Paine or Thelwall. The Court will respect an employee’s ‘contractual arrangement’ with their employer, but A1P1 cannot be used to ‘to base a claim to a higher level of earnings’. 3 However, the ECtHR jurisprudence goes further in relation to pension entitlements, which can be regarded as a ‘possession’ under A1P1, insofar as the worker in question has ‘a legitimate expectation of claiming effective enjoyment’ in the future. It emerges from the most recent cases (and in particular Moskal v Poland, Appln No. 10373/05 15.09.09), that each state has the sovereign autonomy to shape its own socio-economic policies. Nevertheless, if a government wishes to change pension or other benefit entitlements in the ‘public interest’, they can only do so ‘subject to the conditions provided for by law’, in the public interest, and to ‘pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised’. Moreover, it is ‘incumbent on the public authorities to act in good time, in an appropriate manner and with the utmost consistency.’ If the person concerned bears an ‘individual and excessive burden’ then a fair balance of interests will not have been struck and there will be no proportionality. Removal of pension and benefits on an unduly discriminatory basis will be illegitimate, by virtue of Article 14 of the ECHR when taken in conjunction with A1P1. Pension entitlements can be regarded then as both deferred income and a legitimate expectation, which government cannot change on a whim, but by careful structured processes, which must be lawful, proportionate, timely and nondiscriminatory. The Human Rights Act 1998 places A1P1 into UK domestic law and may thereby have an effect on current proposals by the UK Government to change entitlements to redundancy payments and pensions. In this sense, older Lockean ideas of wages and pensions as ‘property’ are returning to the fore in UK public debate. The relevance of A1P1 was evident in the deliberations of the Human Rights Joint Committee (HRJC) in Parliament on the compliance of the Superannuation Bill 2010 with the right to property under the Human Rights Act 1998. The Coalition Government chose to ignore the findings of the Committee that the unilateral changes to civil servants’ redundancy payments entitlements were disproportionate and therefore in violation of A1P1. The matter came before Mr Justice McCombe on judicial review, in PCS v Minister for the Civil Service [2011] EWHC 2041 (QB), unreported judgment of 10.8.11, who did not deny the relevance of property rights, but considered that the onus placed on the Government had been met. His judgment was notable for his reluctance to investigate the Government’s ‘quality of decision-making’ and to consider ‘areas of macro-economics which the court is not equipped to judge’ (para. 59); in other words it was highly deferential to current Government policy. Notably, McCombe J has prior form in terms of lack of sympathy for worker interests, having issued an injunction preventing industrial action on the basis of what he regarded as inadequate notice of eleven spoilt papers, a decision later overturned by a majority of the Court of Appeal (BA plc v Unite the Union [2010] EWCA Civ 669; [2011] ICR 1316). It is perhaps also interesting that McCombe J considered that redundancy payments entitlements are somehow ‘weaker’ than pension entitlements in that they ‘merely plug a gap between employments or between leaving the service and full retirement’ (para. 61). This reasoning suggests that changes to pensions which flow on from Lord Hutton’s review can and should be subjected to greater scrutiny. 4 In this context, we would seem to be returning to a scenario where it is again vital to articulate workers’ property rights and, arguably to do more than merely assert a Lockean contractual entitlement to wages. We need also to argue for collective bargaining, of which civil servants were deprived under the Superannuation Act 2010, despite the Government’s threats to change UK trade union laws (for example, regarding industrial balloting) in the wake of the recent co-ordinated industrial action protesting against pension reform on 30 November 2011. In this sense the writing of Smith and Thelwall retains its relevance. We also need to return to the original arguments for pension entitlements made so cogently by Paine. It may be that Article 1 of Protocol 1 will allow us the opportunity to assert these too readily overlooked natural rights. 1. A fuller exposition is available in T. Novitz, ‘Labour Rights and Property Rights: Implications for (and beyond) Redundancy Payments and Pensions?’ (2012) Industrial Law Journal, forthcoming. 2. Appln No. 19819/92 Storksen v Norway, no 05.07.94 and even the more problematic case of Appln No. 75252/01 Evaldsson v Sweden 13.05.07 3. Appln No. 42295/98 Nerva and Others v UK 24.09.02 at para. 43 4. Independent Public Service Pensions Commission Final Report, 10.3.11 led by Lord Hutton of Furness; and HM Treasury, Public Service Pensions: Good Pensions that Last Cm 8214 November 2011. The European Court of Human Rights has recognised a number of workers’ entitlements as ‘possessions’ Page 7 Volume 18 Issue 4 2012 INTERNATIONAL union rights
Page 1: INTERNATIONAL union rights Volume 1
Page 4 and 5: IUR ❐ EDITORIAL Editorial: the ph
Page 6 and 7: PHILOSOPHY OF TRADE UNION RIGHTS
Page 14 and 15: ICTUR IN ACTION ❐ New website ICT
Page 16 and 17: REPORT ❐ ICTUR TRIAL OBSERVATION
Page 28 and 29: worldwide Business and human rights
Page 30 and 31: BOOK PROMOTION ❐ PROTEST STRIKES
Page 32: Plus: ■ The legality of protest s

International Centre for Trade Union Rights

Create successful ePaper yourself

Delete template?

Save as template?