Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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

The Committee notes the Government's report, including the Employment Relations Act, 1999 attached thereto, which came into force on 27 July 1999.

1. Article 1 of the Convention. In response to the Committee's previous request for information from the Government concerning the denial of employment on the grounds of trade union membership or activities, the Government states that, although there is little evidence that the practice of "blacklisting" is widespread, the Employment Relations Act, 1999, contains powers to enable the Government to make regulations to prohibit the compilation, dissemination and use of lists which contain information about trade union membership or activities with a view to their being used by employers or employment agencies in recruitment, or used to discriminate against trade unions in employment. The Government states further that the Data Protection Act, 1998, places restrictions on the holding and use of information concerning an individual's trade union membership, although this will not fully apply to manual data until 2007. The Committee notes with interest that pursuant to section 3 of the Employment Relations Act, the Secretary of State may make regulations prohibiting blacklisting on the basis of union membership or activities. The Committee expresses the hope that such regulations will rapidly be adopted and requests the Government to keep it informed in this regard.

2. The Committee notes that it has in the past commented that workers should enjoy real and effective protection against dismissal or any other disciplinary measure taken by reason of their participation, whether actual or proposed, in legitimate forms of industrial action. The Committee notes the Government's indication that the Employment Relations Act contains provisions to increase the protection of those taking lawfully organized, official industrial action. Pursuant to Schedule 5, an employee is deemed to have been unfairly dismissed if the principal reason for the dismissal is that the employee took protected industrial action, but only if the dismissal takes place within eight weeks from the date on which the employee started taking protected industrial action (paragraph 3). The Government states that this eight-week period will allow a reasonable time for the parties to enter detailed and serious discussions in an attempt to resolve the dispute and, therefore, avoid the dismissals. The Committee is of the view, however, that the level of protection remains insufficient, in particular since the legislation allows a worker to be dismissed for taking part in lawful industrial action after eight weeks. The Committee notes in addition that the broad scope of what constitutes unofficial industrial action, resulting from the combination of sections 224 and 237 of the Trade Union and Labour Relations (Consolidation) Act, 1992, and sections 7 and 17 of the Trade Union Reform and Employment Rights Act, 1993, which the Committee has commented upon in the past, has been retained. The Committee requests the Government to take the necessary measures to further amend the legislation to ensure full compliance with Article 1 of the Convention.

3. Article 4 of the Convention. The Committee notes with interest that the Employment Relations Act contains provisions for trade union recognition for the purposes of collective bargaining. The Committee notes that the recognition procedure is only available with respect to an employer employing at least 21 workers (Schedule 1, paragraph 7). The union may apply to the Central Arbitration Committee (CAC) to decide whether a proposed bargaining unit is appropriate and whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit. If the CAC is satisfied that a majority of the workers in the bargaining unit are members of the union, it must issue a declaration that the union is recognized as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit (Schedule 1, paragraph 22). If the CAC is not satisfied that a majority of the workers in the bargaining unit are members of the union, a secret ballot is held (paragraph 23). In order to gain recognition following a ballot, the union must be supported by a majority of the workers voting and at least 40 per cent of the workers in the bargaining unit (paragraph 29).

4. Recalling that if no union receives the requisite level of support, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own workers, the Committee requests the Government to specify in its next report how voluntary collective bargaining is promoted where (i) a majority of the workers are not members of a particular union or the union does not secure 40 per cent support of the workers in the bargaining unit; or (ii) there are less than 21 employees. The Committee also requests to be kept informed of any changes in the degree of support made pursuant to paragraph 29(5) or paragraph 121(6). As recognition rights appear to be granted for a period of three years (and can cease to have effect in other circumstances), the Committee requests the Government to provide information concerning the applicability of a collective agreement that does not expire at the same time as the period of recognition.

5. With respect to the Schoolteachers' Pay Review Body, the Committee notes that the Government has not responded to the comments made by the TUC and the NASWUT in this regard, and requests it to do so in its next report.