Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

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

A Government representative recalled that this case arose from the action taken by the Government in 1984 in regard to the staff employed at a Government establishment known as Government Communications Headquarters (GCHQ) in Cheltenham. GCHQ was one of the security and intelligence agencies upon which the United Kingdom's national security depended. The staff were, however, all civilians, members of the Civil Service and were not subject to military discipline. It was in the interests of national security that the operations and activities of GCHQ be maintained at all times without interruption and interference. The work of the individual members of the staff was of vital importance to the operational effectiveness of GCHQ as a whole. The policy of sucessive governments had been to encourage membership of national unions among to staff of GCHQ, to recognise such unions where appropriate and to negotiate with them. However, between 1979 and 1981 industrial action had been taken at GCHQ on several occasions leading to a loss of over 10,000 working days. Most of this industrial action arose from disputes between the Government and national unions over the pay and conditions of service applicable to civil servants generally. This disruption to the work of GCHQ was co-ordinated and encouraged by national unions. Whenever a threat of industrial action existed, GCHQ sought informally to dissuade staff from taking action which would adversely affect the conduct of operations. In 1981 the national unions refused to co-operate. The Government was convinced that industrial disruption of the kind which took place could do real damage to national security and thus decided that the conditions of service of GCHQ staff should be brought into line with those for other staff engaged on security and intelligence duties. The Prime Minister therefore issued an instruction in January 1984 under Article 4 of the Civil Service Order-in- Council, 1982, providing that civil servants employed at GCHQ should not be members of any trade union other than a departmental staff association. Various rights under employment protection legislation were also disapplied. Existing staff were given the choice between remaining at GCHQ under the new terms and seeking a transfer to other suitable posts. This decision was reached after long and careful consideration of all aspects including obligations under ILO Conventions to which, it was concluded, there was no infringement. In discussion held with the national unions following the Government announcement, the trade unions proposed a no-disruption agreement. However, the Government had to reject these proposals as they did not provide sufficient guarantee that difficulties would not arise in the future. The Government representative further recalled that these measures were considered by the courts of the United Kingdom at three separate levels and the Government's decision was upheld. The European Commission of Human Rights concluded that no breach of Article 11 of the European Convention on Human Rights had occurred. The Government had explained to the Conference Committee in detail in 1985 why its actions did not represent a breach of Convention No. 87. The basis of the Government's position was that where a government had ratified two International Labour Conventions dealing with the same subject, the provisions of both Conventions must be considered when deciding whether the Government was meeting its obligations. In the present case the two relevant Conventions were No. 87 concerning freedom of association and protection of the right to organise and No. 151 concerning labour relations in the public service. Under Article 1(2) of Convention No. 151 the extent to which the guarantees concerning the protection of the right to organise applied to certain high level employees or to employees whose duties were of a highly confidential nature was to be determined by national laws or regulations. It was therefore clear that the protection, under Article 4 of the same Convention, against acts of anti-union discrimination should be a matter for governments to determine when employees in highly confidential work were concerned. The United Kingdom had exercised its rights under national laws to make regulations in respect of employees at GCHQ in the interests of national security and it had done so lawfully. In response to the Committee of Expert's request, the Government had regularly reported on developments in this matter, but there were no recent developments on this case.

The Worker representative of the United Kingdom pointed out the length of time this case had been before the present Committee. He stressed that any offence under Convention No. 87 was a grave offence to all workers throughout the world. This matter was particularly grave because if such a problem could not be solved in a country with an advanced economy and with a history as one of the birthplaces of trade unionism in the world, then what hope was there for workers in less developed countries, under military dictatorships or under martial law. He emphasised the difficulty in pursuing, in the Committee, a dialogue with a Government that listened but apparently had no intention whatsoever of complying with the requests of the Committee of Experts and the Committee on Freedom of Association. In his view, the Government spoke as though it had the right on its side and it was the Committee of Experts and the Conference Committee which year after year had been all wrong. Human rights could not be preached to the rest of the world without accepting the same human rights enshrined by Convention No. 87 in the United Kingdom. With respect to the history of this case he recalled that a group of civil servants employed, admittedly, on secret work at GCHQ were for more than a quarter of a century in membership of nationally recognised trade unions. They found no conflict between their work and their membership of trade unions, and trade unions found no difficulty in negotiating on their behalf. Indeed, trade union officers were given security clearance to examine part of the work, to ensure that the jobs were correctly graded and paid, to ensure that they were getting their full trade union rights. When they were originally recruited to membership of the trade unions, the Government never suggested at any stage during that period that there should be no-strike agreements. The industrial action which took place resulted from unilateral withdrawal by the Government of a 25-year standing pay agreement; this led to a series of one-day strikes in most civil service departments and a warning from employees at GCHQ that they were to take part in this action. Some years after the event the Government withdrew the right of national unions to organise at GCHQ. At this time the Government offered L 1,000 to those employees who would give up their trade union rights. If the employees decided to stay with the trade union they were threatened with dismissal or transfer to other parts of the country where their special skills could no longer be used. Those who stayed with their trade unions were denied rights and suffered discrimination. The company or house union which was established was not allowed to have contact with any other union or any national centre. Convention No. 87 was agreed by all to be a keystone to the standardsetting activity. In this case there was a deliberate and conscious infringement of this Convention. The question of the relationship of this case to Convention No. 151 had in fact been considered by the Committee of Experts, which had rejected the argument put forward by the Government. Under no circumstances did Convention No. 151 override Convention No. 87, which applied to employees at GCHQ, since Article 9 allowed only for the exclusion of the armed forces and the police. In its 235th Report, the Committee on Freedom of Association had stated in its Recommendations that steps should be taken by the Government to pursue negotiations with the civil servants' unions involved, with a view to restoring the rights of freedom of association as laid down in Convention No. 87. This was a simple request and it required a simple answer which this Committee had not received. The speaker thus requested the Government representative to state whether he had the authority of his Government to agree that discussions would be initiated by the Government urgently. If he had no such authority, then the United Kingdom had no intention of fulfilling its commitments under Convention No. 87 and thus would be a Government refusing a request both by the Committee on Freedom on Association and the Committee of Experts. Special paragraph procedures had been introduced for cases of this particular nature, and if the Government representative was unable to give assurances a special paragraph must be considered; otherwise the present Committee would be accused of discrimination.

The Employers' members noted that it was difficult to keep up with the details and committed positions in this dispute between the Government and the workers of the United Kingdom. It would be desirable if the two parties could find an internal solution to this problem as the Employers could not contribute much in this regard. The Government stated that GCHQ was part of military security, and that was why Convention No. 87 did not apply. With respect to the relationship between Convention No. 87 and Convention No. 151, the Committee of Experts had already commented upon this relationship. Previously it appeared that a practical solution had been found but this proved not to be the case. The Committee of Experts had requested the Government to report on new developments, and there was no doubt that this would be done. However, for the time being there were no new developments in this difficult case.

The Workers' members added that all the arguments restated by the Government representative had been before the Committee of Experts, which had squarely come to the conclusion that Convention No. 87 granted the right to organise and made exception only for members of the armed forces and the police. There was no exception for confidential employees, no matter how important they were. With respect to the relationship between Convention No. 151 and Convention No. 87, the Committee of Experts had concluded that Convention No. 87 guaranteed the workers, including those in public service, the right to freely establish and join organisations of their own choosing and that exceptions were not applicable to the present case. Moreover, the Committee of Experts had associated itself with the decision approved by the Governing Body in Case No. 1261 of the Freedom of Association Committee. The Committee of Experts pointed to the recommendation contained in that case, and reiterated it as their own, calling upon the Government to initiate negotiations with the trade unions of the public servants concerned.

The Government representative stated that the United Kingdom had always had, and he hoped would always have, total confidence in the integrity of the supervisory system of the ILO and that it had always tried to fully participate in that system. But any system was composed of individuals which were human beings, and on this one particular point the Committee of the Experts was not correct. His Government respected their view but its opinion differed from theirs. The United Kingdom could not accept that Convention No. 87 could or should be examined in isolation from Conventions Nos. 98 and 151. It was perfectly clear from the Preamble to Convention No. 151 that it was adopted with the two earlier Conventions in mind. Convention No. 87 should not continue to apply to the public service, where it would be incompatible with the purpose of the more specific Convention No. 151. Article 1(2) of Convention No. 151 meant what it stated, namely that it was for governments to determine by national laws or regulations the extent to which the guarantees provided for in the Convention applied to public service workers who were engaged in highly confidential work. The Court of Appeal in the United Kingdom specifically held that Article 1(2) of Convention No. 151 took precedence over Convention No. 87. This decision was at odds with earlier decisions of the Committee on Freedom of Association. The Committee of Experts, while not addressing these issues, had noted elsewhere that the interpretation of Conventions involved difficulties in respect of which the international Court of Justice might more appropriately be requested to provide an opinion. This was a recognition by the Committee of Experts that the interpretation of the Conventions by the Committee on Freedom of Association was not the only sustainable one and was not necessarily definitive. In its 1985 Report the Committee of Experts specifically referred to the Recommendations of the Committee on Freedom of Association. The Government representative noted that the Committee of Experts endorsed the view that, if appropriate negotiations with the national unions had taken place, the Government's objective of guaranteeing the uninterrupted operation of the work at GCHQ could have been achieved in an atmosphere of good industrial relations and without any need to consider the compatibility of government measures with ILO Conventions. It also drew attention to the limitations which might, in accordance with ILO principles, be placed on the rights of public servants to organise and on the means of action available to public servants. The Government noted this helpful and constructive suggestion from the Committee of Experts. The Government had seriously considered whether a solution to the GCHQ problem could be found through renewed negotiations and had decided that this would not serve a useful purpose. This position was reinforced by the trade unions' rejection of concluding a no-strike agreement. The Government concluded by stating that giving the most careful consideration to the comments both of the Committee on Freedom of Association and the present Report of the Committee of Experts, the Government remained firmly of the view, regretfully, that further negotiations with the unions would serve no useful purpose.

The Worker member of Argentina noted that this was a problem which had already been discussed in depth by a body with the highest standing in the Organisation, the Governing Body Committee on Freedom of Association. There, the matter had been studied and conclusions had been reached which were being followed up by the Committee of Experts. This case involved a Government which, after many years' collective bargaining, one day changed the entire system and prevented staff from having any trade union rights. The Government representative of the United Kingdom had clearly stated that his Government was not going to accept any conclusion other than their own interpretation. The workers in the United Kingdom were protected by Convention No. 87, Convention No. 151 was there to protect the right to organise of public servants who are not covered by Convention No. 87. The Government of the United Kingdom was trying to apply a restrictive clause contained in Convention No. 151 over the vested rights of workers under Convention No. 87. He regretted the position taken by the Employers' members that an internal solution should be found to this problem, and that they could not contribute much. If this position were taken each time public servants were involved the ILO tripartite supervisory system would no longer be operative.

The Workers' members noted that the Government representative had stated his Government's open disagreement with the Committee of Experts on this case. Therefore there was no other recourse than to highlight this as an important case presenting great difficulties in a special paragraph in the Report.

The Worker member of Austria pointed out, as a member of the Committee on Freedom of Association, that the Committee, with the support of the Governing Body, had for the past three years asked the Government to start negotiations with the trade unions in connection with GCHQ and Convention No. 87. From the outset, the Government had questioned the applicability of Convention No. 87 as compared with Convention No. 151, and the Committee on Freedom of Association had asked the Committee of Experts to bring more light into this question, which indeed was treated very clearly in their Report. The present Committee could not continue dialogue or expect to make any progress in this case when the Government representative stated that the opinion of the Committee on Freedom of Association and of the Committee of Experts was a mistake. A special paragraph would be appropriate in this case.

The Worker member of Spain noted that there should not be a national solution which contradicted the standards clearly expressed in the Convention. Convention No. 87 entitled civil servants to create and join trade unions. In this case a rather suspect interpretation with a suspect criterion such as national security was being applied at the national level, as was done in countries lacking democracy. The Committee on Freedom of Association had clearly stated that public service officials could enjoy freedom of association although there may be restrictions on the exercise of the right to strike. Therefore, in order to restrict the right to strike, the Government could not suppress freedom of association, which was what the United Kingdom Government had done. Convention No. 87 expressly prohibited this type of interference and the conclusion of the present Committee should be that either the Government representative should accept the negotiations as proposed by the Worker member of the United Kingdom or the Committee would have to adopt the special paragraph.

The Employers' members declared their abstention on the proposal that the conclusions should be contained in a special paragraph. They stated that, on this proposal, they did not hold the same opinion as the Workers' members and sometimes such small differences of view had an effect on the subsequent procedure, as would perhaps be seen next year.

The Workers' members expressed their deep regret over the Employers' members abstention. A failure to mention this case in a special paragraph could give the unfortunate impression that there were two standards operating: one for the less developed countries and another for rich European countries. They could see no point in having the Committee vote on their proposal.

The Committee noted the information supplied by the Government representative, as well as the detailed discussion within the present Committee. It noted with concern that, despite the time which had elapsed, no measures had been taken to implement fully the right to organise of workers without distinction whatsoever, as provided by the Convention. It expressed the firm hope that discussions would be commenced rapidly between the Government and the unions concerned so as to enable solutions to the legislative and factual situation to be found. It trusted that the Government's next report to the Committee of Experts would contain information on positive developments in this respect.