Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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 Government’s report. It further notes the detailed comments and information provided by the Trades Union Congress (TUC) in a communication dated 28 October 2010, which raised a number of issues on the application of the Convention in law and in practice that have been the subject of the Committee’s comments for many years now. The Committee requests the Government to reply to these comments in its next report.

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 right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, particularly as regards the exclusion or expulsion of individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. Following the judgment 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 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 Government had informed the Committee that relevant amendments contained in an Employment Bill were then before the Parliament.

The Committee had also noted the detailed comments made by the TUC which set out certain reservations in respect of the proposed amendment both as regards what it saw as a degree of legal uncertainty around its meaning and the perception of excessive complexity in the new legislation. The Committee takes due note of the detailed observations made by the Government in its latest report in reply to these concerns. In particular, the Government informs that section 19 of the Employment Act of 2008 has now amended section 174 of the 1992 Act and significantly extends the scope for trade unions to exclude and expel individuals on the grounds of their political party membership. The Government states that it attempted to balance competing human rights about freedom of belief and freedom of association in its drafting of these amendments. It therefore included safeguards concerning the essential elements of natural justice, due process and transparency which aim to ensure that: (a) membership of the political party concerned is contrary to a rule or objective of the union; (b) the union has taken the decision to exclude or expel in accordance with its rules; and (c) the union has followed fair procedures when taking that decision, and the individual does not lose his livelihood or suffer other exceptional hardship for loss of union membership. As regards this last point, the Government indicates that, since “closed shop” is already unlawful in the country, a loss of union membership is very unlikely to produce hardship on this scale. As regards the TUC allegation that the complexity would lead to unjustified and vexatious litigation, the Government states that there is no evidence to support that such mischievous litigation has been indulged in since the amendments came into force in April 2009. The Government adds in this respect that a compensatory award for unlawful exclusion would only apply where the trade union refused to admit or re-admit the individual and where membership of the political party is not contrary to a rule or objective of the trade union, whereas in the Government’s understanding, the rules or objectives of British trade unions often specify that membership of certain political parties, or xenophobic or racist behaviours associated with such parties, are incompatible with union membership. The Government concludes that these amendments do not breach the Convention and are necessary in a democratic society for the protection of the rights and freedom of others.

The Committee requests the Government to reply to the further concerns expressed by the TUC in its latest comments and to provide any available information on the practical application of the amendments to section 174 of the TULRA.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised 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 reiteration that it has no plans to change the law in this area. The Committee emphasizes that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. The Committee therefore recalls 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 and requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the progress made in ensuring respect for this principle.

The Committee further recalls that, when reviewing the comments made by the British Airline Pilots’ Association (BALPA), the International Transport Federation (ITF) and Unite the Union, the Committee had observed with serious concern the practical limitations on the effective exercise of the right to strike of the BALPA workers in the case at hand. The Committee observed that the omnipresent threat of an action for damages that could bankrupt the union, possible in the light of the Viking and Laval judgments issued by the European Court of Justice (ECJ), created a situation where the rights under the Convention could not be exercised. While noting the Government’s statement that the impact of the ECJ judgments was limited, the Committee referred to the likelihood of such issues becoming more frequent within the current context of globalization, particularly in certain sectors of employment, like the airline sector and considered that the doctrine being articulated in these ECJ judgments was likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention.

In its latest report, the Government points out that, even if there were an international dimension to a United Kingdom trade dispute, it was far from clear that the industrial action involved would fail to meet the legitimacy and proportionality requirements laid down in the ECJ case law. In any event, the Government indicated that in so far as the proportionality tests might apply to United Kingdom industrial action, these tests were derived from EU treaties, to which the Government is obliged to give effect. The Government therefore considers that amendment of the TULRA would not have any impact on the proportionality tests set out in these judgments. As regards the threat of unlimited damages, the Government observes that it has not been proven that these ECJ judgments would have the effect of nullifying the limits on damages for unlawful industrial action that are set out in the TULRA, but even if they did, the Government maintains that it could not change this impact through any unilateral action on its part. The Government concludes that the effect of the ECJ judgments on United Kingdom industrial action has not been established as no United Kingdom court has decided a case in this area and, in any event, any effect would probably be limited to the small minority of disputes which have the necessary international dimension. For these reasons, the Government considers that it is not necessary to review the TULRA or take other national measures.

The Committee wishes once again to recall the serious concern it raised as to the circumstances surrounding the BALPA proposed industrial action, for which the courts granted an injunction on the basis of the Viking and Laval case law and where the company indicated that, should the work stoppage take place, it would claim damages estimated at £100 million per day. The Committee recalls in this regard that it has been raising the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice and considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for this fundamental right, which is an intrinsic corollary of the right to organize. While taking due note of the Government’s observations in relation to its obligations under EU law, the Committee considers that protection of industrial action in the country within the context of the unknown impact of the ECJ judgments referred to by the Government (which gave rise to significant legal uncertainty in the BALPA case), could indeed be bolstered by ensuring effective limitations on actions for damages so that unions are not faced with threats of bankruptcy for carrying out legitimate industrial action. The Committee further considers that a full review of the issues at hand with the social partners to determine possible action to address the concerns raised would assist in demonstrating the importance attached to ensuring respect for this fundamental right. The Committee therefore once again requests the Government to review the TULRA, in full consultation with the workers’ and employers’ organizations concerned, with a view to ensuring that the protection of the right of workers to exercise legitimate industrial action in practice is fully effective, and to indicate any further measures taken in this regard.

Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee recalled 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 constituted, 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 requested the Government to indicate any measures taken or contemplated with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action.

The Committee notes that the Government reiterates that those participating in lawfully organized, official industrial action are protected against dismissal for action which lasts 12 weeks or less. Dismissing a worker for taking industrial action during this period is considered to be automatically unfair. Virtually all industrial action in the United Kingdom lasts less than 12 weeks and therefore this protection extends to virtually all workers who stage official and lawfully organized strikes. In addition, regardless of the duration of the industrial action, an employer cannot dismiss a worker for taking industrial action if the employer has failed to take reasonable procedural steps to resolve the dispute with the trade union (i.e. agreed procedures for dispute resolution). The Government however maintains that it is not appropriate to support the view that an employer must never dismiss employees under any circumstances when they take protected industrial action. In any event, the sacking of strikers is very rare in the United Kingdom.

The Committee recalls the importance it attaches to the maintenance of the employment relationship as a normal legal consequence of the recognition of the right to strike (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 139). While provisions that enable employers to dismiss workers during or at the conclusion of an industrial action on the grounds of illegitimate or unlawful action may be in conformity with the provisions of the Convention, it considers that restricting the right to maintain the employment relationship to industrial action of twelve weeks or less places an arbitrary limit on the effective protection of the right to strike in a manner contrary to the Convention. The Committee therefore once again requests the Government to review the TULRA, in full consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on the steps taken in this regard.

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 from the Government’s report that it held discussions with the TUC about these issues during the reporting period, but that no agreement was reached. The Committee requests the Government to continue to provide information on developments in this regard, as well as any relevant statistics or reports on the practical application and effect of these requirements.

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