Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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 report. It further notes the Government's statement to the 1997 Conference Committee on the Application of Standards and the discussion which took place therein.

1. Dismissal of workers at GCHQ. With reference to its previous comments relating to the need to restore trade union rights for workers at Government Communications Headquarters in Cheltenham (GCHQ), the Committee notes with satisfaction from the Government's report that one of the first acts of the new Government on taking office in May 1997 was to restore to the employees of GCHQ the right to belong to any trade union of their choice. It further notes that the Director of GCHQ, the Chairman of the GCSF and the general secretaries of the civil service unions signed a legally binding agreement under which the Government Communications Group of the PCS is recognized for consultation and negotiation on matters exclusive to GCHQ. The other civil service unions are recognized for service-wide matters, and for representation of individual members. Under the collective agreement, the unions have agreed not to take any industrial action that would disrupt GCHQ operations. The unions also have unilateral right of access to binding arbitration if a dispute is unresolved. Finally, the Government indicates that the Foreign Secretary has revoked the certificate which contained the remaining restrictions on access to industrial tribunals and the first of those former employees who were dismissed for continuing union membership returned to work at GCHQ on 9 September 1997.

2. Matters relating to the 1992 Trade Union and Labour Relations (Consolidation) Act and other related texts. The Committee notes with interest from the Government's report that consultations have been held with the social partners in order to determine the changes necessary to the employment law resulting in the publication of a White Paper on Fairness at Work. It further notes the Government's statement that the relevant legislative proposals will be made as soon as possible.

The Committee further notes with interest the Government's indication that it recognizes that the existing law and Code of Practice on industrial action ballots and notices are too complicated and rigid and that failure to comply with these complex requirements can result in injunctions preventing unions from carrying out planned industrial action. It welcomes the Government's indication that it has announced plans to simplify the law and the Code of Practice and has invited views from interested parties, including unions and employers' organizations on how this should be done. According to the Government, the proposals should lead to clearer and better regulation in this area and help ensure that unions avoid legal action over technical breaches of law. Furthermore, with reference to its previous comments concerning section 226A of the 1992 Act in respect of strike ballots, the Committee notes with interest the Government's statement of its intention to amend the law on industrial action ballots and notice to make clear that, while the union's notice to the employer should still identify as accurately as reasonably practicable the group or category of employees concerned, it need not give names. It requests the Government to keep it informed of the progress made in this regard.

(a) Unjustifiable discipline (sections 64-67). 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 it strongly supports the principle that workers should be free to join the trade union of their choice as trade unions provide important services to their members. According to the Government, it therefore follows that the rights of unions to discipline and expel members need to be balanced against the rights of individuals to acquire and retain their membership. The Government adds that, under the law of the United Kingdom, individuals are almost invariably breaking their contracts under which they work when they take any form of industrial action, irrespective of whether the action is official or unofficial, or whether the action is lawfully or unlawfully organized. These workers can therefore be sued on an individual basis by employers for damages. In contrast, unions cannot be sued for damages if they organize industrial action within the law. In these circumstances, the Government considers that individuals should be free to decide whether or not to take part in lawfully organized industrial action since the potential liability is the individual's and not the union's.

The Committee must, nevertheless, once again recall that Article 3 of the Convention concerns the rights of trade unions to, inter alia, draw up their constitutions and rules and to organize their activities and to formulate their programmes, without interference by the public authorities. The free choice to join a trade union can clearly be based on a careful consideration of the provisions in such constitutions and rules. Furthermore, the Committee would recall that the prohibition of such disciplinary measures carries with it heavy financial penalties. The Committee considers unions should have the right to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action, and that the financial penalties imposed by the legislation in this respect constitute undue interference in the right of workers' organizations to draw up their constitutions and rules freely and would therefore once again ask the Government to refrain from any such interference. As concerns the Government's argument in respect of the liability of individual workers, the Committee recalls the importance it attaches to the maintenance of the employment relationship as a normal consequence of the recognition of the right to strike.

(b) Immunities in respect of civil liability for strikes and other industrial action (section 224). The Committee recalls that its previous comments concerned the absence of immunities in respect of civil liability when undertaking sympathy strikes. It pointed 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.

The Committee notes that the Government reiterates its previous comments concerning secondary action and adds that permitting forms of secondary action would be a retrograde step and would risk taking the United Kingdom back to the adversarial days of the 1960s and 1970s when industrial action frequently involved employers and workers who had no direct connection with a dispute.

The Committee further notes the comments made by the Trades Union Congress (TUC) of 7 November 1996 that it is a common tactic of employers to avoid the adverse effects of disputes by transferring work to associated employers and that companies have restructured their businesses in order to make primary action secondary. The Government, while indicating that there is no official information collected to measure the extent of this phenomenon, considers that it is fully consistent with its legislation and the Convention for employers to mitigate the adverse financial consequences of a strike.

The Committee must note that, beyond the effects that these provisions may have in respect of secondary action, it would appear that the absence of protection against civil liability may even have a negative effect on primary industrial action. In these circumstances, the Committee can only reiterate its position that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful and requests the Government to indicate any developments in this regard.

3. Dismissals in connection with industrial action. In its previous comment, the Committee had drawn the Government's attention to paragraph 139 of its 1994 General Survey 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 notes with interest the Government's indication that it intends to allow in certain circumstances those dismissed for taking part in lawfully organized official industrial action to complain to a tribunal of unfair dismissal, even where all workers have been dismissed. The Committee intends to examine the progress made in respect of the Government's proposals in this regard under Convention No. 98.

The Committee is addressing a request directly to the Government concerning certain other matters.