Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1950)

The Committee notes the information provided in the Government's report, as well as the communication from NASUWT, the Career Teachers' Organization, dated 25 September 1995, and the communication from the Trades Union Congress (TUC) dated 31 October 1995. It has also taken note of the Government's reply of 21 November 1995 to certain matters raised in the TUC communication. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1730 (294th Report of the Committee, approved by the Governing Body at its 261st Session (June 1994)).

1. Articles 1(2)(b) and 4 of the Convention. The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1730 concerning the effect of section 13 of the Trade Union Reform and Employment Rights Act of 1993 (TURER) as it amended the provisions of the Trade Union and Labour Relations (Consolidation) Act of 1992 (TULRA) dealing with the protection granted to workers against action short of dismissal on grounds related to union membership or activities. The Committee on Freedom of Association concluded, in respect of this amendment, that "inasmuch as its effect is indeed to prevent tribunals from redressing situations such as those in the Wilson and Palmer cases (Associated Newspapers, Ltd. v. Wilson and Associated British Ports v. Palmer), where employees who refuse to give up the right to collective negotiation were deprived of a pay raise, the Committee considers that that amendment raises significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1(2)(b) of Convention No. 98. In addition, such a provision can hardly be said to constitute a measure to encourage and promote the full development and utilization of machinery for voluntary negotiation ... with a view to the regulation of terms and conditions of employment by means of collective agreements', as provided in Article 4 of Convention No. 98", (294th Report, paragraph 202). The Committee notes the indication in the Government's report that section 13 was not introduced as an attack on trade union membership rights, but rather was intended to ensure that there was no obstacle to the ability of employers to change their negotiating arrangements and to make clear that the right not to be discriminated against on trade union membership grounds did not include or imply a right to have one's terms and conditions negotiated by collective bargaining.

The Committee recalls that, when ratifying Convention No. 98, the Government undertook to take appropriate measures to encourage and promote the full development and utilization of machinery for the voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee considers that section 13 of the said legislation is likely to result in a situation wherein collective bargaining is easily and effectively discouraged instead of being encouraged. It therefore requests the Government to indicate in its next report any steps taken to review section 13 of the TURER and to amend it so that it will not result in the effective discouragement of collective bargaining in contravention with Article 4 of the Convention.

As regards denial of employment on the grounds of trade union activity, the Committee notes that, in March 1995, the House of Lords reversed the Court of Appeal's ruling in the Wilson and Palmer cases. The new point of law in the House of Lords judgement concludes that the term "action" in "action short of dismissal" does not include an omission such as the withholding of a wage increase offered only to employees agreeing to sign individual contracts. Furthermore, while noting with interest the Employment Appeal Tribunal (EAT) decision of February 1995 in the case of Harrison v. Kent County Council which found that an individual refused employment because of his or her trade union activities may be considered to have been unlawfully refused employment because of his or her trade union membership, the Committee has also observed that the House of Lords judgement in the Wilson and Palmer cases gave some consideration to the meaning of trade union "membership" protected against acts of discrimination under TULRA section 146(1)(a). In particular, some of their Lordships concluded that the protection of trade union membership against discrimination did not include protection for making use of the essential services of the union and therefore found that there was no evidence showing that the purpose for withholding the wage increase was to deter the applicant from remaining a member of the union.

The House of Lords judgement in the Wilson and Palmer cases has reinforced the Committee's apprehensions that the legislative protection to be afforded to workers against acts of anti-union discrimination in their employment, by virtue of Article 1 of the Convention, seems to be insufficient. Furthermore, the restrictive interpretation of the meaning of the term "action" and the uncertainty surrounding the understanding of what is actually to be protected from action short of dismissal under TULRA section 146(1)(a) might also aim at contravening Article 4 of the Convention insofar as it does not protect the use of a union's essential services (e.g., collective bargaining) from acts of anti-union discrimination. The Committee therefore would ask the Government to take the necessary measures to amend the legislation to bring it into conformity with Articles 1(2)(b) and 4 so as to ensure effective protection of workers from any action taken by the employer, or omission to act, which would result in penalizing workers for attempting to regulate their terms and conditions of employment through collective bargaining. It would also request the Government to indicate in the future whether any subsequent court judgements have reversed the principle established in Harrison and, if so, to provide a copy of any such judgement.

2. Determination of schoolteachers' pay and work conditions in England and Wales. The Committee notes from the information provided in the Government's latest report that the Schoolteachers' Pay Review Body (STRB) has continued to function according to the same procedures as noted in the Committee's previous comments. It also notes that the Government has accepted the STRB recommendation for a pay increase of 2.9 per cent for all teachers in 1994 as well as its 1995 recommendation for a 2.7 per cent pay increase. It further notes the NASUWT communication wherein the Career Teachers' Organization indicates that it considers that the Review Body created in 1991 for determining teachers' pay is superior to the machinery which previously existed. NASUWT does consider, however, that there are two defects in the STRB: (1) the Government seeks to impose very heavy handed financial limits; (2) the present membership of the Review Body is not representative enough of society in general.

The TUC for its part has stated that the Government's explanation of the practical operation of the STRB does not satisfy the largest British trade union of teachers, the National Union of Teachers (NUT), whose fundamental position remains one of dissatisfaction that the Review Body does not permit for voluntary negotiation.

In its reply of 21 November 1995, the Government recalls that the NUT is only one of six major unions representing the interests of schoolteachers. The Government states that the other five unions, which represent over 65 per cent of teachers, have no objection to the review body principle. Finally, the Government recalls the procedures followed by the STRB and the measures taken to ensure that the positions of the unions are heard.

The Committee notes this information and trusts that the review machinery will continue to function in practice in a manner that will not hamper the freedom of collective bargaining.

3. As regards its previous comments concerning denial of employment on grounds of trade union membership or activity and dismissals in connection with industrial action, the Committee has taken note of the detailed comments made by the TUC and requests the Government to furnish information in its next report in reply to the matters raised in its communication.