Working For Two Masters Case Dismissed

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26 March 2019

March 25 saw the High Court dismiss the idea that the University of London (and others like it) should be considered a 'de facto' joint employer of those working for outsourced companies such as Cordant.

The decision means the Central Arbitration Committee (CAC) does not have to listen to an Independent Workers of Great Britain case -  and thus the 3.3 million UK outsourced workers the IWGB claimed would benefit will continue with union recognition (where it is available) only with their direct employer.

While the judicial review was against a CAC decision, the High Court also allowed the University of London and the Department for Business, Energy and Industrial Strategy (BEIS) to intervene as interested parties. Cordant Security were offered but declined the same right.

A spokesperson for Cordant said: "The Judicial Review was brought against BEIS and CAC, not against Cordant Security or the University of London and was in no way based upon any claim that either party had operated unlawfully.

"We note the decision of the Judge and will remain focused on how we can support our staff who deliver an exceptional service for the University and our other clients throughout the UK."

CAC

The IWGB initially brought the two cases to the CAC. Case one was to require the University of London to recognise the union for the purposes of collective bargaining on behalf of some of its outsourced workers. case two was for recognition by Cordant.

The law has now been effectively upheld that workers only have the right to collectively bargain with their direct employer, in this case Cordant Security.

Further to this, it has been upheld that Cordant does have to recognise a union for the purpose of collective bargaining - but as Cordant works with Unison, there is no need to allow the IWGB to barge in.

Union voice

IWGB General Secretary Jason Moyer-Lee said: “The University of London, with considerable help from the Tory government, may have won the battle. But when it comes to the exploitative, discriminatory and fundamentally unfair practice of outsourcing it is the war that the IWGB is fighting to win. Outsourced workers at the University of London and elsewhere will continue to fight in both the courts and in the workplace until they are brought in-house and treated equally with their directly employed colleagues.” The IWGB has become well-known for its Bring It Back In-house campaign waged at London sites and the University of London in particular.

IWGB President Henry Chango Lopez, when the judicial review was first granted said: “The fact that vast swathes of the establishment, including the government, are joining forces to try and defeat our challenge is further proof of its importance.”

In December 2018 a boycott of the University of London was called, which is now being supported by over 400 academics.

Summary of Mr Justice Supperstone's judgement

The Independent Workers' Union of Great Britain (which represents security guards, post room workers, audio-visual staff, porters and receptionists working for Cordant Security at the University of London) applied for and was granted a judicial review to challenge the Central Arbitration Committee's (the statutory body charged with resolving union recognition disputes) refusal to allow two applications to be recognised by Cordant and to be recognised by the University of London for collective bargaining purposes.

The first case saw CAC satisfied that there is in force a collective agreement under which an independent trade union, namely Unison, is recognised by Cordant, the employer, as entitled to conduct collective bargaining on behalf of workers falling within the Union's proposed bargaining unit. Accordingly, CAC found the union's application not admissible. Justice Supperstone agreed.

On the second count, CAC was satisfied that the University is not the employer of the 70 IWGN represented workers in the union's proposed bargaining. Justice Supperstone agreed.

Article 11 of the European Convention on Human Rights

The Secretary of State for Business, Energy and Industrial Strategy has ministerial responsibility for the CAC and as such had the right to intervene in proceedings pursuant to the Human Rights Act 1998 in particular because the Union was seeking a declaration of incompatibility under that Act which at Article 11 states: 'Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society'.

Justice Supperstone agreed with CAC that although Article 11 includes the right to engage in collective bargaining this would not instantly allow the IWGB to seek recognition in the face of the existing recognition agreement with Unison. Furthermore, such an approach would run counter to the CAC's general duty to encourage and promote fair and efficient practices and arrangements in the workplace, since it would upset existing collective bargaining arrangements.

The IWGB also argued that if it were not possible to 'de-recognise' Unison, then Article 11 would also have been breached. However, it was found that the case law referred to by the union's (expensive) lawyers (from the Good Law Society working pro bono) involved a 'sweetheart union' that could not be dislodged unlike a proven independent such as Unison.

To find the full judgement  - Click Here

Picture: The case to have the case heard that the University of London should be considered a 'de facto' joint employer of outsourced staff has failed. The IWGB will continue to fight for the University to bring those workers back in-house.

Article written by Brian Shillibeer | Published 26 March 2019

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