Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1949)

The Committee takes note of the Government's report and complementary information. It also notes the extensive discussion which took place in 1992 at the Conference Committee concerning mostly the situation at the Government Communications Headquarters in Cheltenham (GCHQ), as well as the comments made by the Trades Union Congress (TUC) in several communications in 1992.

1. Dismissal of workers at the GCHQ

In its previous observation, the Committee had urged the Government rapidly to resume constructive discussions calculated to lead, through genuine dialogue, to a compromise acceptable to both sides on this issue which it first considered in 1985. At its 1992 session, the Conference Committee, whilst deploring that certain initiatives had not resulted yet in a genuine dialogue, took note of the Government's stated intention to reach a solution on this question, and expressed the firm hope that this statement would be rapidly followed by a substantive, frank and constructive dialogue, carried out in good faith, so that a solution could be found to this problem, in full conformity with the Convention.

The Committee notes that, following the Conference, in an exchange of letters between the TUC and the Government, the latter reiterated that it continued to attach fundamental importance to the safeguarding of security and the continuity of essential operations at GCHQ, and could not contemplate any change in trade union membership or representation at GCHQ which risked disruption to these operations, or conflicts of loyalty for staff. Whilst stating that there could be no guarantee that a solution acceptable to both parties could be found, the Government indicated that it was ready to consider carefully any proposal compatible with its basic position. In this respect, the Committee noted with interest that, according to the Government, high-level meetings took place between the Government and the unions in October 1992 and January 1993, and that other contacts are expected to follow.

The Committee also noted that the Government Communications Staff Federation (GCSF), the workers' organization accepted by the Government at the GCHQ, had filed an appeal to the Employment Appeal Tribunal (EAT) against the decision of the Certification Officer that they should not be awarded a certificate of independence. The EAT dismissed the GCSF appeal in its decision of 10 December 1992.

The Committee notes with interest a resumption of the dialogue in this matter and firmly hopes that it will lead to a positive outcome that is satisfactory to both parties. It requests the Government to keep it informed on developments in its next report.

2. Unjustifiable discipline (sections 64-67 of the Act of 1992)

The Committee recalls that its previous comments in this matter concerned the provisions (formerly section 3 of the 1988 Act) that prevented trade unions from disciplining their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action. In its previous observation, the Committee requested the parties to provide particulars on the exact scope of these provisions and on their application in practice.

In its report, the Government:

- confirms that sections 64-67 of the 1992 Act impose no limitation on what may, or may not, be included in a union's rules;

- states that unions remain free to adopt any rules they wish, subject to the need to respect fundamental human rights and the law of the land, and that it considers it right, therefore, that the law should provide a remedy to prevent individuals being exposed to excessive pressure and penalties for refusing to act unlawfully against their convictions by breaking contracts of employment to which they are party;

- mentions it is aware of more than 240 cases where, since the passage of the 1988 Act, individual union members have complained to industrial tribunals they had been so disciplined (complaints upheld in 130 cases);

- gives examples of judicial decisions concerning certain disciplinary action taken against trade union members by their union, for crossing picket lines during a strike.

In its communication of 24 December 1992, the TUC states that, although trade unions may still adopt their own rules on disciplinary procedures to deal with strike-breakers, they are unable to apply them legally. It also gives examples on how the law is applied in practice.

The Committee agrees with the Government that, technically, sections 64-67 impose no direct or explicit limitation on what may or may not be included in trade union rules. However, section 66(1) allows individual union members to complain to an industrial tribunal that they have been "unjustifiably disciplined" within the meaning of section 65(1), which includes in particular disciplinary measures, by a union, against a worker who crossed picket lines set up by fellow union members during a strike. The judicial decisions specifically mentioned by the Government and the TUC demonstrate that, while trade unions are "free" to adopt any rules they wish in this respect, they face serious financial penalties if and when they enforce them.

The Committee considers that these provisions remove the right of trade unions to express their dissatisfaction with their members who refuse to comply with, or seek to subvert democratic decisions by other union members to take lawful industrial action. The Committee requests the Government seriously to take into consideration the damage that could result therefrom for the normal functioning of trade unions, within the framework of the existing industrial relations system. It requests the Government to consider amending the said provisions, so that trade unions may be allowed really to express their dissatisfaction with members who refuse to comply with democratic decisions to take lawful industrial action.

3. Indemnification of union members and officials (section 15 of the 1992 Act)

The Committee recalls that its previous comments in this matter concerned the provisions (formerly section 8 of the 1988 Act) which make it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence for contempt of court, and provide for recovery by the union of any sums improperly paid by way of such indemnity. In its previous observation, the Committee requested the parties to supply it with information on the practical application of these provisions, in particular by providing the texts of quasi-judicial or judicial decisions issued in these matters.

In its report, the Government:

- reiterates that where an individual merely acts as a passive "agent" of a union, any penalty for an offence is likely to be imposed upon the union, but where a penalty is imposed on an individual this would imply a clear finding of wilful and unlawful action by that individual;

- states that the language of the statute (which refers explicitly to the application of union funds towards the payment for an individual of a penalty imposed "for an offence or for contempt of court") means that these provisions are relevant only to indemnification for a criminal offence or for contempt of court;

- reports that it is unaware of any: (i) judicial decision whereby a court has imposed a penalty on an individual in such circumstances; (ii) actual court proceedings brought by union members under section 15(3) of the 1992 Act, i.e. to obtain authorization from a court to recover the value of an unlawful indemnity on the union's behalf and at the union's expense.

In its communication of 24 December 1992, the TUC states that it is unaware of any cases under the above-mentioned provision.

The Committee takes due note of all the information submitted. Whilst it remains unclear as to the exact significance and potential impact of the distinction made by the Government between "passive agents" and individuals, it notes that so far, the courts have not issued decisions which would confirm its earlier concern that section 15 might, in practice, be applied in a way which violates the Convention. The Committee invites the Government in its future reports, and the TUC in their future observations, to keep it informed of the practical application of this provision.

4. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the 1992 Act)

The Committee recalls that its previous observations in this matter concerned the provisions (formerly sections 4 and 9(2) and (3) of the 1990 Act) which removed the immunities (or, more accurately, "protections") which existed previously in respect of, among others: (a) certain forms of "secondary action" (i.e. action by workers having no dispute with their own employer); (b) industrial action organized in support of employees dismissed while taking part in "unofficial" industrial action. The Committee made comments on this subject in 1989 and 1991, and in 1992, requested the Government to provide full particulars on the objective and effects of these provisions.

Referring to its previous replies, the Government stresses in its report that it cannot find in the Convention any authority for the conclusion that calling for, or otherwise organizing, these particular forms of industrial action ought to have legal protection.

The Committee examined carefully the Government's elaborate reply, as well as the supporting material (intended for trade unions, employers and interested persons) explaining in lay terms the legal situation before and after the above-mentioned amendments, and their implications. The position now is that there is no immunity for organizing "secondary" industrial action (sometimes called "sympathy" or "solidarity" action), other than inducement in the course of peaceful picketing; immunity has also been removed in respect of industrial action organized in support of employees dismissed while taking part in "unofficial" industrial action.

The Committee refers to the detailed analysis in its 1989 observation on this issue, and to its following observations, where the legal positions of both the Government and the TUC were extensively described. In order to make a fully informed decision, it requests them to supply particulars on the application in practice of sections 223 and 224 of the 1992 Act, in particular by providing the texts of judgements or quasi-judicial decisions involving the application of these statutory provisions.

5. Dismissals in connection with industrial action

In view of the Government's request and given that some of the issues raised under this heading may be the subject of other instruments, the Committee will deal with this related issue in its next examination of the Government's report under Convention No. 98. It invites the Government and the TUC to provide in the meantime particulars on the legal and factual situation in this respect, including examples of judicial or quasi-judicial decisions involving the application of the relevant provisions.

6. Complexity of the legislation

In its previous observations, the Committee had expressed its concern at the volume and complexity of legislative changes since 1980 in relation to the matters covered by the Convention, a concern which was reiterated by the workers' members at the 1992 Conference.

The Committee notes with interest that, in keeping with the assurances given by the Government at the 1992 Conference, the Trade Union and Labour Relations (Consolidation) Act 1992, was adopted and came into force in October 1992. This document does bring together much existing employment legislation. The Committee hopes that, together with the free booklets published by the Government, explaining the legislation as it applies to employers, workers and trade unions, it will contribute to a better understanding of the legislation by all parties concerned.