Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

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 information provided in the Government's latest report as well as the comments made by the Trades Union Congress (TUC) in a communication dated 10 January 1995 which have been sent to the Government for its observations.

1. Dismissal of workers at the GCHQ. In its previous comment, the Committee noted the resumption of dialogue between the Government and the unions concerning the right to organize for GCHQ workers and expressed the firm hope that these discussions would lead to a positive outcome which was satisfactory to both parties. From the information provided in the Government's latest report, it appears that the last discussion which took place on this matter was during a meeting between the Prime Minister and the unions in December 1993. According to both the Government and the TUC these discussions unfortunately did not lead to any agreement. At this meeting, the Government had indicated its willingness to enable the Government Communications Staff Federation (GCSF) (the workers' organization accepted by the Government at GCHQ) to affiliate with the Council of Civil Service Unions (CCSU) thus permitting the staff of GCHQ to be represented in discussions between the Government and the Civil Service Unions on matters affecting the civil service generally. The Government also indicated during this meeting that the possibility had not been ruled out that, as part of their proposal, the requirement for the GCSF to have the approval of the Director of GCHQ might be withdrawn. For its part, the TUC has indicated that any arrangement which excludes the possibility of GCHQ staff from joining an independent union would not be satisfactory.

The Committee also notes the indication in the Government's report however that it could not accept a proposal to allow GCHQ staff to rejoin one of the national civil service unions since it would risk the staff once again being exposed to a conflict between their loyalty to their employer and their loyalty to their trade union, a risk which would not be removed by an undertaking on the part of the unions not to call GCHQ staff out on strike because any such undertaking could subsequently be repudiated, as had been done in the past. For its part, the TUC indicated that, during the meeting with the Prime Minister, it repeated its previous assurances and additionally pointed out the legal changes which required a ballot before a call for industrial action. In this regard, the Committee recalls from its previous comments that workers whose functions relate to security matters would fall into the category of those in respect of whom it is permissible to prohibit by legislation the right to strike. The question of the right to strike for GCHQ staff and of the right to organize are however separate matters.

As concerns the Government's statement in its report that the Intelligence Services Act (ISA) of 1994 places the GCHQ on a statutory basis together with the intelligence service and that the functions carried out by the GCHQ are, in many other countries, carried out by the military, either directly or indirectly even though they are sometimes staffed by a mixture of civilian and military personnel, the Committee notes the provision in the ISA that GCHQ shall continue to be under the authority of the Secretary of State. While the examples given by the Government concerning other countries described situations in which the organizations concerned were either run by the military or under the authority of the Department of Defence or its equivalent, it does not appear from the ISA that this is the case for GCHQ. The Committee therefore considers that GCHQ staff cannot be considered to be members of the armed forces for the purposes of exclusion under Article 9.

Finally, as concerns the Government's renewed argumentation with respect to the interrelationship of Conventions Nos. 87 and 151, the Committee recalls its previous comments in this regard and considers that the points raised by the Government do not call for any further examination of the question.

Given the above considerations and noting that the Government's proposal remains firm that GCHQ staff can only be represented by GCSF, the Committee recalls that these workers should be guaranteed the right to establish and to join organizations of their own choosing, in accordance with Article 2 of the Convention. Furthermore, given the apparent lack of recent direct dialogue on these matters, it once again urges the Government to take steps to resume discussions with the unions with the aim of finding a satisfactory solution to all parties concerned.

2. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) Act)). The Committee recalls that the previous comments in this matter concerned the above-mentioned provisions of the 1992 Act which prevented trade unions from disciplining their members who refused to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action. The Committee noted that while, technically, these sections imposed no direct or explicit limitation on what may or may not be included in trade union rules, trade unions would face serious financial penalties for taking disciplinary measures against a member for such action. It considered that these provisions removed the right of trade unions to express their dissatisfaction with their members who refused to comply with or sought to subvert democratic decisions by other union members to take lawful industrial action and requested the Government to amend these provisions with this in mind.

In its latest report, the Government states that the effect of disciplinary penalties imposed on members by their union could be much more serious than those which would follow from the mere "expression of dissatisfaction" in so far as such penalties were designed to persuade members in general that, by their own free choice, they ought not to be honouring their contract of employment when called upon the union not to do so and this should not be condoned by the law; there is no demonstrable evidence to show that the relevant provisions have, in practice, done any damage to the "normal functioning of trade unions"; the legislation only proscribes certain specific forms of discipline as unjustifiable. The Government then concludes that there is no need to amend sections 64-67 of the 1992 Act.

The Committee nevertheless stresses that the right of workers' organizations to draw up their constitutions and rules guaranteed by Article 3 of the Convention includes the right (without threat of serious financial penalties upon the application of their rules) of unions, when drawing up their constitutions and rules, to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action or who seek to persuade fellow members to refuse to participate in such action. The Committee asks the Government to refrain from any interference which would restrict the right of workers' organizations to draw up their constitutions and rules freely.

3. 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 comments concerned the above-mentioned provisions which removed the immunities which existed previously in respect of, among others: (a) the organization of certain forms of "secondary action" (i.e. action by workers having no dispute with their own employer); and (b) the organization of industrial action in support of employees dismissed while taking part in "unofficial" industrial action. In its report, the Government maintains its view that nothing in the Convention requires the law to give special protection against proceedings concerning the organization of industrial action among workers who have no dispute with their own employer. The Government indicates that there are no relevant reported judgements and concludes that there is no need to amend these provisions.

The Committee draws the Government's attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers' right to carry out sympathy strikes. Furthermore, the Committee considers that industrial action for a worker dismissed for "unofficial" industrial action falls into the category of protest strikes the exercise of which should not be excessively limited by unrestricted tort proceedings. Noting the indication made by both the Government and the TUC that court judgements were only one means of assessing the practical impact of a particular piece of legislation (and therefore implicitly assuming that the legislation may in any event have an impact on a union's decision to take the industrial action in question), the Committee requests the Government to consider amending these provisions so as to accord adequate protection of the right of workers' organizations to engage in these legitimate forms of industrial action.

4. Dismissals in connection with industrial action. In its previous comment, the Committee, in view of the Government's request and given that some of the issues raised under this heading might be the subject of other instruments, indicated that it would deal with this related issue in its examination of the Government's report under Convention No. 98. In the meantime, it invited the Government and the TUC to provide particulars on the legal and factual situation in this respect. The Committee again notes from the Government's report that it understands questions of dismissal and other disciplinary action taken by an employer against workers who have engaged in industrial action not to be relevant to the guarantees afforded by Convention No. 87. The Government has also supplied a list of relevant court cases and concluded that no further comment on this matter was necessary in the context of the present report. The Committee also notes the detailed information provided by the TUC in its communication of 10 January 1995 concerning the impact of such dismissals upon the application of Convention No. 87. In this regard, the Committee would draw the Government's attention to paragraph 139 of its 1994 General Survey in which it notes that sanctions or redress measures are frequently inadequate when strikers are singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal) and that this raises a particularly serious issue in the case of dismissal if workers may only obtain damages and not their reinstatement. In the Committee's view, legislation should provide for genuine protection in this respect, otherwise the right to strike may be devoid of content. The Committee is awaiting both the Government's detailed report under Convention No. 98 as well as the Government's reply to the TUC comments under Convention No. 87 with respect to this matter in order to assess fully the impact of the law and practice with respect to these Conventions.

5. Detailed regulation of the internal functioning of workers' organizations. The Committee notes that, since its last substantive examination of the application of this Convention, the Government has adopted yet more detailed regulations concerning the internal functioning of workers' organizations. It has taken due note of the need evoked by the Government in its report to regulate these various matters. It has also noted the comments made by the TUC concerning a number of other provisions in the 1993 Act which it considers to interfere with its rights under Article 3 of the Convention. While the Committee considers that some of the provisions noted by the TUC do not technically constitute a violation of the Convention (e.g. section 15 of the 1993 Act with respect to check-off facilities or the extension of the notion of "unjustifiable discipline" in section 16 to include when members fail to agree to or withdraw from check-off arrangements, resign from a union and become or propose to become a member of another union, work with non-members, and work for an employer who employs non-members), the continuing regulation of the smallest details of the internal functioning of workers' organizations may reach a point where the cumulative effect of such regulation, by virtue of its detail, complexity and extent, nevertheless constitutes an interference in the rights of such organizations under Article 3 of the Convention.

In this regard, the Committee would draw the Government's attention to paragraph 135 of its 1994 General Survey which provides that legislative provisions which regulate in detail the internal functioning of workers' and employers' organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest autonomy is left to the organizations in their functioning and administration.

6. The Committee is raising a number of other points in a request addressed directly to the Government.