Direct Request (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 2 of the Convention. The Committee’s previous direct request concerned comments made by the Trades Union Congress (TUC) to the effect that union representatives do not enjoy a general right of access to workplaces and that this has been an issue of particular concern in the merchant shipping sector. The TUC had stated that there is no general right for union representatives to access workplaces, carry out union activities and inform workers of the benefits of union membership in workplaces where unions are recognized, but rather limited facilities in relation to consultation rights during collective redundancies and transfer for undertakings.

The Committee takes note of the detailed information provided by the Government on the system applicable in the United Kingdom, which is very decentralized. It notes that pursuant to a review carried out with trade union participation in 2006 and 2007, work is under way on revising the code of practice on time off for trade union duties and activities issued by the Advisory, Conciliation and Arbitration Service (Acas). The Government also acknowledges that full-time trade union officials enjoy few legal rights to enter the premises of employers and that such matters are usually determined by agreement between an employer and a trade union. One particular provision assigns access rights to union officials in the framework of the statutory recognition procedure introduced by the Employment Relations Act, 1999/Employment Relations (Northern Ireland) Order, 1999. Under that procedure, a union’s application for recognition may be determined by a ballot and the union may send officials to the employer’s premises in advance of the ballot to explain the union’s case for recognition to the relevant workforce. These entitlements apply to merchant shipping, provided that the ships and seamen involved are within the United Kingdom’s territorial jurisdiction.

The Committee notes that according to the TUC’s latest comments, a trade union has no right of access to speak to a worker it may be accompanying in a disciplinary or grievance hearing, and indeed the employer can deny the union the right of access to the workplace even in these circumstances, by conducting the hearing off-site. Limited rights of access are granted only in the regulated context of recognition ballots under the statutory recognition procedure and even then, ultimately the employer cannot be required to allow access, so powerfully are property rights recognized in British labour law.

The Committee recalls that under Article 3 of the Convention, trade unions should have the right to organize their administration and activities in full freedom with a view to defending all of the occupational interests of their members, while respecting the law of the land. This includes in particular the right to have access to places or work and to carry out any activity involved in the defence of members’ rights (General Survey of 1994 on freedom of association and collective bargaining, paragraph 128). The Committee requests the Government to indicate in its next report any measures taken or contemplated to enhance the possibility of trade union access to the workplace in particular in the context of disciplinary or grievance hearings.

Article 3. In its previous direct request, the Committee noted the TUC’s indication that, under section 223 of the Trade Union and Labour Relations Act (TULRA), disputes designed to secure the reinstatement of workers who have been dismissed for taking part in an unofficial strike are unprotected, and that this lack of protection applies regardless of the cause of the unofficial action. The Committee notes that according to the Government, unofficial industrial action is typically very disruptive and the legal framework has been designed to dissuade employees from it. Consequently, there is no protection for individual employees against being dismissed when taking unofficial action under sections 237 of the TULRA and 143 of the Employment Rights (Northern Ireland) Order, 1996. Also, trade unions do not enjoy immunity if they organize industrial action to seek the reinstatement of any individuals so dismissed (sections 233 of the TULRA and 116 of the 1996 Order). The Committee recalls that workers’ organizations should be able to have recourse to legitimate means of defending their economic and social interests and that restrictions on the right to strike are acceptable only in certain limited circumstances (essential services in the strict sense of the term and public servants exercising authority in the name of the State). The Committee therefore requests the Government to indicate any measures taken or contemplated so as to amend section 223 of the TULRA with a view to ensuring the protection of official industrial action as long as it is organized in conformity with the law, even if it is aimed at securing the reinstatement of workers dismissed for taking part in an unprotected strike.