Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1949)

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee’s previous comments concerned the need to ensure more fully the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, and in particular when they intend to exclude or expel individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. The Committee welcomes the Judgement of the European Court of Human Rights (ECHR) reached in the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007) which refers to Articles 3 and 5 of the Convention and which found that section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) violated Article 11 of the European Convention on Human Rights on freedom of association in that it did not strike a proper balance between the rights of individual members and those of the trade union.

The Committee notes from the Government’s report that pursuant to this decision, it acted with the necessary degree of urgency to amend the relevant provisions of the TULRA in consultation with the social partners. The Government made legislative proposals to the United Kingdom Parliament to amend section 174 and the related provisions concerning remedies in section 176; these proposals are currently contained in clause 19 of the Employment Bill, introduced in the House of Lords on 6 December 2007. The Bill completed its passage in the House of Lords and on 3 June 2008 was introduced into the House of Commons. The Government expects the Bill to gain Royal Assent in the autumn of 2008.

On the substance of the amendments, the Committee notes that according to the Government, clause 18 of the Employment Bill provides wider scope for trade unions to expel or exclude a person on grounds of political party membership, as well as safeguards aimed to ensure that exclusion or expulsion on these grounds is lawful only in cases where membership of the political party concerned is contrary to a rule or objective of the union and where the union has followed fair procedures when taking its decision to exclude or expel. With regard to Northern Ireland in particular, the Government indicates that public consultations were launched in June 2008 on proposals to amend similar provisions to TULRA (article 38 of the Trade Union and Labour Relations (Northern Ireland) Order, 1995). The consultation will run until 30 September 2008 and any legislative amendments will be taken forward in an Employment Bill through the Northern Ireland Assembly in 2009.

The Committee takes note of the detailed comments on the Government’s report made by the Trades Union Congress (TUC) in a communication dated 1 September 2008, as well as the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008. The Committee notes that while the TUC welcomes the introduction of the Employment Bill into Parliament, it has reservations about the detail introduced in clause 18 which was heavily amended in the House of Lords. The TUC considers that if clause 18 is enacted in its present form, a trade union would be able lawfully to expel someone because of membership of a political party, only if this is in accordance with the rules or objectives of the union, but in the latter case, only if the objective is accessible to the individual in question; even if the decision is taken in accordance with the rules or objectives of the union, it would still be unlawful if certain procedural obligations were not complied with first, and if representations made by the individual were not considered fairly; the TUC believes that these provisions are unnecessary and disproportionate given that there is already protection at common law for those expelled from a trade union without authority under the rules, to which these amendments add another layer of regulation; the TUC adds that even if these substantive/procedural obligations were met, it would also be unlawful to exclude or expel if to do so would cause the individual to lose his or her livelihood or suffer “exceptional hardship”; this term is not defined and it is difficult to anticipate its meaning given that there is already statutory protection from discrimination or dismissal because of non-membership of a trade union. If the union does not comply with these rules it will be liable to pay a minimum award of compensation to the individual concerned (currently £6,900). Finally, the TUC contends that the new legislation’s complexity is likely to lead to unjustified and vexatious litigation. It adds that section 174 of the TULRA should be repealed as a whole to reinstate unions’ rights to freedom of association.

The Committee requests the Government to reply to the concerns expressed by the TUC, and to indicate in its next report the measures taken or envisaged to ensure that the amendments to section 174 of the TULRA fully guarantee the right of unions to draw up their constitutions and rules without interference by the public authorities.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). The Committee’s previous comments concerned the need to protect the right of workers 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, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government’s indication that it has no plans to change the law in this area as it considers it essential under its system of decentralized industrial relations that it should remain unlawful for a trade union to organize any form of secondary industrial action. The Committee notes that according to the TUC, the decentralized nature of the industrial relations system makes it more important for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, by transferring work, or by hiving off companies. In this connection the Committee recalls once again that workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to social and economic matters which affect them, even though the direct employer may not be a party to the dispute, and requests the Government to indicate in its next report any measures contemplated to amend sections 223 and 224 of the TULRA in keeping with this principle.

Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee took note of the TUC’s indication that the Employment Relations Act of 2004 (ERA) amends the TULRA (by adding subsection 7B to section 283A) so as to make it unlawful for an employer to dismiss an employee for taking part in a lawful strike for the first 12 weeks of the strike. The Committee notes from the Government’s report that protection against dismissal for employees who break their contracts of employment in the framework of official and lawfully organized industrial action, is now greater than at any other time in the country’s history pursuant to new protections introduced in the Employment Relations Acts 1999 and 2004 and the Employment Relations (Northern Ireland) Orders of 1999 and 2004. The new protections take two forms: first, it is unlawful to dismiss on the grounds of a person’s participation in industrial action, where the action took place within a period of 12 weeks (covering the vast majority of official industrial action); second, a dismissal is unfair if the employer has failed to follow all reasonable procedural steps to resolve the dispute with the union; this condition applies to official and lawfully organized industrial action beyond the 12-week period. The Government adds that it does not support the view that the employer must never dismiss employees under any circumstances when they take industrial action.

The Committee notes, however, that in its latest comments, the TUC lists a number of defects in the protection for striking workers in the United Kingdom: (i) it remains a breach of contract at common law for workers to take part in strike action, and recent legislation simply gives some protection from the consequences of the common law position in certain circumstances instead of changing this position; (ii) trade union members are protected from the common law consequences (dismissal) only when the trade union has immunity from liability, i.e. when the strikes are in contemplation or furtherance of a “trade dispute” which, as previously indicated by the Committee of Experts, allows for industrial action in narrow circumstances (see above); (iii) even where the protection against dismissal does arise, it is not unlimited but applies only for the first 12 weeks of the dispute and any extension is conditional and not guaranteed; (iv) even where the protection applies and someone is unfairly dismissed, the unfairly dismissed employees have no right to return to work if the employer objects.

The Committee is of the view that for the right to strike to be effectively guaranteed, the workers who stage a lawful strike should be able to return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the employer’s consent constitute, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes an essential means for workers to promote and defend the interests of their members. The Committee therefore requests the Government to indicate any measures taken or contemplated so as to amend the TULRA with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action.

Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226–235 of the TULRA and 104–109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard.

The Committee is raising additional points in a request directly addressed to the Government.