Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

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 notes 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 7 November 1996 and the Government's partial observations thereto.

1. Dismissal of workers at the Government Communications Headquarters in Cheltenham. In its previous comments, the Committee recalled that the staff at Government Communications Headquarters in Cheltenham (GCHQ) should be guaranteed the right to establish and to join organizations of their own choosing, in accordance with Article 2 of the Convention, and requested the Government to provide information in its next report on developments in this respect. In its latest report, the Government indicates that discussions with the national unions and the Government Communications Staff Federation (GCSF) have continued with a view to finding alternative arrangements which would both meet the Government's objectives with regard to national security and give staff at GCHQ access to the benefits of membership of an independent union.

The Government recalls that GCSF has been recognized formally as a trade union by the Certification Officer for Trade Unions since 1985, however, some aspects of the arrangements under which the Staff Federation had to be approved by the Director of GCHQ made it difficult for the GCSF to secure a certificate of independence. In response to representations from the GCSF, the Government considered the amendments needed to help the GCSF to secure a certificate of independence while maintaining national security interests. On 20 December 1995, the Government introduced changes to the conditions of service of staff employed at GCHQ by removing the GCHQ Director's powers of approval and veto over membership of a staff association. There is still a requirement that members of GCHQ staff may only belong to or engage in the activities of a trade union whose officers and elected or appointed representatives are employees of GCHQ. All forms of industrial action are also still prohibited.

The Government indicates that the GCSF applied for a certificate of independence on 19 January 1996. According to the Government, the changes introduced in December 1995 mean that staff are now able to establish alternative staff associations if they wish, subject only to the requirement that the membership be restricted to GCHQ staff. Additional changes affecting the arrangements for GCHQ staff were introduced on 23 July 1996. Staff of the security and intelligence services had previously been subject to a general ban preventing their access to industrial tribunals which has now been lifted; decisions on whether access to an industrial tribunal can be allowed will now be taken on a case by case basis, depending on whether national security considerations can be met with the procedural safeguards available.

The Government concludes that the changes it has introduced represent not only a positive response to an initiative from the GCSF, but also constitute a clear demonstration of its willingness to consider constructive proposals in relation to GCHQ.

The Committee notes this information with interest. It further notes, however, that in November 1996, the Certification Officer has refused a certificate of independence for the GCSF, even in light of the changes made over the last year. The certificate was refused for the following reasons: the federation's officers have to be employees at the centre which gives management powers of discipline; it cannot merge with another organization nor recruit from elsewhere; the federation has to satisfy the conditions of service of GCHQ; it is 80 per cent funded by management; staff have limited access to industrial tribunals and are banned from taking industrial action. The Government has indicated, however, that the GCSF is intending to appeal this decision.

The Committee notes that, under section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), an "independent trade union" is a trade union which is not under the domination or control of an employer or group of employers or employers' association and is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control. It further notes that a certificate of independence is necessary for a trade union and its members to benefit from certain measures of protection provided for in the TULRA. For example, the following sections only apply to independent trade unions: section 146 (action short of dismissal); section 152 (protection against dismissal); section 168 (time off for trade union duties); section 170 (time off for trade union activities); and section 181 (disclosure of information for collective bargaining).

While it welcomes the recent measures taken by the Government to enable staff at GCHQ to establish alternative staff associations if they wish, subject only to the requirement that the membership be restricted to the GCHQ, the Committee notes with regret that the reasons given for refusing a certificate of independence to the GCSF, the only staff association presently established at GCHQ, particularly as concerns its financing and the limited access to the industrial tribunal, indicate that the GCSF is not able to organize its administration and activities in full freedom, contrary to Article 3 of the Convention. Furthermore, it notes that the absence of an independent status would exclude the GCSF from many of the provisions of the legislation intended to ensure that unions can organize their activities without interference. The Committee therefore requests the Government to provide further information in its next report on the measures taken or envisaged to ensure that workers' organizations at GCHQ can organize their administration and activities in full freedom.

2. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) Act). The Committee recalls that the previous comments on 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.

In its latest report, the Government states that the legislation in question simply provides basic protection against arbitrary or discriminatory treatment, similar to other anti-discriminatory legislation and similar to restrictions on dismissal by employers and reiterates its previous reports concerning the need to afford protection to union members who exercise their civil right not to break their contracts of employment and participate in industrial action.

The Committee nevertheless must once again underline that Article 3 of the Convention provides, inter alia, that, when drawing up their constitutions and rules, trade unions should have the right (without threat of serious financial penalties upon the application of their rules) to determine whether or not it should be possible to discipline members, including by expulsion or fine, 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 would therefore once again ask 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 (section 224 of the 1992 Act). The Committee notes that the Government once again 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 and that it is unaware of any potential abuse which could arise from a general prohibition on sympathy strikes. The Committee notes that, under section 224 of the Act, there is secondary action in relation to a trade dispute when a person threatens to break a contract of employment or induces another to break a contract of employment and the employer under the contract of employment is not the employer party to the dispute. It would point out in this respect that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute. This could be the case where, for example, the structural organization of parent, subsidiary or subcontracting companies leads to a situation where the interests of the workers cannot necessarily be resolved with their direct employer, yet the undertaking of industrial action may lead to the resolution of their legitimate claims. In this regard, the Committee recalls its position that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful and hopes that the Government will provide information in its next report on the TUC's comments on this matter.

4. Dismissals in connection with industrial action. In its previous comment, the Committee had drawn the Government's attention to paragraph 139 of its General Survey of 1994 on freedom of association and collective bargaining in which it noted that sanctions or redress measures were frequently inadequate when strikers were singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal) and that this raised a particularly serious issue in the case of dismissal if workers could only obtain damages and not their reinstatement. The Committee indicated that legislation should provide for genuine protection in this respect, otherwise the right to strike would be devoid of content. The Committee added that it was 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.

The Committee notes that the Government, in its latest report, simply refers to its report under Convention No. 98 and does not respond to the TUC's previous comments under Convention No. 87. The Committee therefore requests the Government to provide information in its next report under this Convention in respect of the TUC's comments concerning the interpretation by the Industrial Tribunal of section 238 of the TULRA with respect to the Arrowsmith printing company in Bristol.