Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

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 said that the Committee of Experts had raised two issues concerning the United Kingdom's application of Convention No. 87. The first concerned section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, which limited the ability of trade unions to exclude or expel an individual from membership on the grounds of his or her membership of a political party.

Section 174 had been significantly amended by the Employment Relations Act 2004, which had had the effect of increasing the ability of trade unions to lawfully expel or exclude individuals on the grounds of their political party activities. However, the amendments retained the restrictions on the ability of trade unions to expel or exclude individuals simply on the grounds of political party membership. That distinction was important as it protected the basic right of a person to belong to a political party, while also enabling trade unions to ensure that those who actively articulated political views contrary to the unions' objectives and principles were denied membership. The 2004 Act also changed the compensation regime that applied when an individual was unlawfully excluded or expelled. The minimum level of compensation (currently set at £6,600) no longer applied in many situations of a person being unlawfully excluded or expelled on the grounds of political party membership.

The changes were intended to address the concerns of trade unions regarding the activities of far-right political parties and their desire to infiltrate union ranks. The changes had been introduced following detailed discussions with the Trades Union Congress (TUC). Although the changes did not go as far as the TUC had wished, there was general consensus that they were welcome and greatly helped trade unions in dealing with political extremists.

When making the above changes to section 174, the Government had been extremely conscious of the need to maintain a balance between different human rights: on the one hand, the rights of trade union members to design their own rules of membership and association, and on the other, the rights of individuals to belong to lawful political parties and to participate in political activities without suffering any sanctions as a result. Trade union membership was important in the United Kingdom, and the loss of the entitlement to belong to a trade union was detrimental to people who wished to exercise their democratic rights by engaging in political activities.

Although the TUC referred to the activities of certain extreme political parties, most of the country's political parties belonged to the mainstream and the law had to apply equally to all lawful political parties. Nevertheless, the Government was considering whether the present law struck the correct balance. In May 2007, it had issued a consultation document that it had circulated widely to all trade unions and employers' organizations, asking for their views on the matter. The consultation period would end in August 2007.

The initiative had been prompted by a recent judgement by the European Court of Human Rights in the case of ASLEF v. The United Kingdom. While the Court had recognized that United Kingdom law aimed to protect the rights of individuals to exercise their political freedoms without hindrance, it had ruled that aspects of section 174 had violated Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). The Government had therefore concluded that section 174 needed to be amended. Its consultation document suggested two ways in which that could be achieved. One option was to remove all statutory limitations on trade unions regarding their ability to expel or exclude an individual on the grounds of his or her political party membership or activities. Once it had considered the responses to the consultation, the Government would change the law at the earliest opportunity.

He said that the consultation was a major development. The Government's swift response to the Court's judgement indicated the seriousness with which it considered the issue and the importance that it attached to human rights. The Government would keep the Committee informed of subsequent developments through the usual reporting arrangements.

The second issue raised by the Committee of Experts concerned section 224 of the same 1992 Act, which in effect made it unlawful for trade unions to organize secondary industrial action. The Committee of Experts was of the opinion that trade unions should be free to organize sympathy strikes in situations where the initial strike was organized lawfully. However, his Government was of the view that that Convention No. 87 permitted member States to set legal restrictions on the taking of industrial action. Virtually all member States had enacted legislation in this area that reflected their domestic arrangements and industrial relations traditions. For example, some member States limited the ability of trade unions to undertake industrial action during the life of a collective agreement. His country did not impose such a limitation as its collective agreements were not legally enforceable.

Nevertheless, in the United Kingdom, it was unlawful for trade unions to organize any form of secondary action and the Government believed that there were good reasons why this should be so. The United Kingdom had historically operated a highly decentralized system of industrial relations, with many thousands of separate bargaining arrangements. The Government believed that such a system had its advantages. However, without the right legal framework, it could easily become anarchic and grossly inefficient. Throughout much of the post-war period, secondary action had been widespread in the country and it had had an extremely damaging impact on national prosperity. It had undermined the livelihoods of businesses and their employees.

Secondary action was particularly disruptive. It drew in employers and employees that had nothing to do with the original industrial dispute. It spread industrial conflict far and wide. In the United Kingdom, it made sense for such types of industrial action to be strongly discouraged. That had been done by removing the immunity from civil liability from trade unions that organized this type of action. In the Government's view, that restriction was necessary in the United Kingdom and struck the correct balance. In general, trade unions had fully adjusted to the law. They retained a strong bargaining presence, and the threat of taking primary industrial action had major force in the country. Thus, the strike weapon remained potent and effective, when used responsibly.

He added that there was no legal prohibition on individual workers taking sympathy action. Indeed, the law explicitly prevented courts from compelling any worker to work. However, the standard protections against dismissal for taking strike action did not apply in such circumstances, which ensured that unofficial industrial action was discouraged.

The Government believed that Convention No. 87 needed to be applied flexibly to take account of national conditions and traditions. The Convention did not deal explicitly with industrial action and did not therefore prohibit the regulation of strike activity. It was appropriate for the health of the United Kingdom economy and the stability of the country's complex system of industrial relations to deter sympathy and secondary strikes. The Government therefore had no plans to change the law in that area.

The Worker members indicated that the United Kingdom, like Romania, had not been able to resist the temptation to subject the right to strike and the right to bargain collectively to strict and detailed regulations. For that reason, both the Conference Committee and the Committee on Freedom of Association had frequently examined the incompatibility of certain provisions of United Kingdom legislation and certain national practices with the principles of Conventions Nos 87 and 98. In that respect, it was necessary to highlight the current trend towards deregulation, a trend that could be observed in almost all areas except that of industrial relations, where the rule seemed to be over regulation. The present case concerned the right of trade unions to draw up their own constitutions, elect their representatives in full freedom, organize their administration and activities and to formulate their programmes, as provided for in Article 3 of Convention No. 87. The provision also placed the obligation on the authorities to refrain from any action that might limit that right or hinder its lawful exercise.

One of the essential elements of the right to freedom of association was the power to freely define the criteria for the admission of new members and to freely exclude certain members from the trade union. Taking into account the frequent moves by far-right political parties to infiltrate free and democratic trade unions with a view to corrupting their structures and actions with intolerable ideologies, these two aspects were even more important for workers' organizations. Infiltration was not only to be observed in the United Kingdom, but also in other European countries. In order to defend themselves against the risk of infiltration, it was extremely important for workers' organizations to have at their disposal tools and guarantees that could also be used in court. National policies that jeopardized the ability of organizations to defend themselves before the courts were unacceptable.

However, in the United Kingdom, the current legislation did not offer sufficient protection against the attempts by the British National Party (BNP) to infiltrate trade unions. Moreover, the Associated Society of Locomotive Engineers and Firemen (ASLEF), a union affiliated to the Trades Union Congress (TUC), had been obliged by the courts to reverse its exclusion of a BNP militant on the basis of the national legislation, notably the Trade Union and Labour Relations (Consolidation) Act 1992. It had to be stressed that the BNP's ideology was purely neo-fascist and racist and that ASLEF had expelled a well-known party militant following allegations that he had threatened and harassed people distributing anti-Nazi leaflets and anti-Islamist brochures. It was extremely regrettable that ASLEF had finally been forced to refer the matter to the European Court of Human Rights to obtain justice and recognition of the union's right to expel such people. In a recent and very important ruling of 27 February 2007, the European Court of Human Rights, citing Convention No. 87, had clearly stated that trade unions were free to choose their members:

Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership (...). Unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union (...) Trade unions (...) are not bodies solely devoted to politically-neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues.

In view of the ruling of the European Court of Human Rights and its interpretation of Convention No. 87, the United Kingdom had no choice but to amend its legislation. And that was the hope of the British trade unions, of all the workers present in the Conference Committee and of the Committee of Experts. It also appeared to be the intention of the Government to do so, as it had admitted that the amendments made in 2004 were insufficient. Although it was not up to the Conference Committee to discuss the details of these amendments, they should be negotiated with national trade unions. It was essential for the Committee to urge the Government, in consultation with the national social partners and with the support of the ILO if necessary, to bring its legislation into line with the letter and spirit of Convention No. 87, and with the ruling of the European Court of Human Rights as soon as possible. The struggle against the far right, racism and xenophobia also made it necessary for trade unions to have the right to protect themselves against ideologies reminiscent of the darkest periods of the twentieth century.

The Worker members also noted that, although the Committee of Experts had not taken into account in its observations the right of trade unions to be able to take disciplinary measures against their members, it was still an important point. It was vital, in a situation where a member refused to respect the democratic decisions of his or her organization concerning industrial action, for the trade union to be in a position to take the measures needed to prevent individuals from damaging the collective interest.

Regarding the second point dealt with by the Committee of Experts - the right of workers to take part in strikes that affected them even if, in certain instances, the strikes did not concern their direct employer, and the amendment of sections 223 and 224 of the Trade Union and Labour Relations (Consolidation) Act - the Worker members requested that the issue be included in the conclusions of the Conference Committee. Trade unions were increasingly confronted with situations in which workers had different employers but worked in the same place. Depriving trade unions of the right to undertake joint industrial action on the basis of common interests or for reasons of solidarity, even if the action did not concern a dispute with their direct employer, ran counter to the right to strike and the right of freedom of association. On that point, they expressed their disappointment at the position of the Government, which was in contradiction with that of the Committee of Experts.

The Employer members said that this was an old case that had been debated on numerous occasions and concerned two points.

With regard to Article 3 of Convention No. 87 on the right of workers' organizations to draw up their constitutions and rules without interference by the public authorities, they reiterated that the 2004 amendment to section 174 of the Trade Union and Labour Relations (Consolidation) Act allowed unions to exclude or expel individuals on account of conduct which consisted of activities undertaken by an individual as a member of a political party. It did not allow for expulsion relating solely to membership and brought into play automatic compensation if a member was indeed expelled for being a member of a political party. They referred to the case of ASLEF v. The United Kingdom, in which the European Court of Human Rights had recently ruled that the Government was in contravention of Article 11 of the European Convention on Human Rights. In view of these recent developments, they noted the information provided by the Government representative and welcomed the process of consultation that was under way with the relevant parties, which constituted a major development.

In relation to immunities in respect of civil liability for strikes and other industrial action, they said that the matter had been considered on numerous occasions since 1989 and had resulted in the same outcome each time. In the view of the employers nothing had happened to warrant any change this time. They recalled that in 1991 the Committee of Experts had acknowledged that British legislation provided a significant measure of protection against common law liability for individuals and trade unions that organized and participated in certain forms of industrial action, and that those workers could not be ordered to return to or remain at work. Nevertheless, the Committee of Experts had continued to question the lack of protection for secondary industrial action and had repeatedly requested the Government to introduce legislation to enable workers and their unions to engage in industrial action such as protests and sympathy strikes.

In response to previous observations, the Government had continually raised the following points. First, United Kingdom law still provided protection against civil law liability that would otherwise arise wherever a trade union or any other person called on workers to break contracts in the contemplation or furtherance of a trade dispute with their employer, and it provided a wide-ranging definition of "trade dispute" for that purpose. Second, no change since 1979 to the law relating to the organization of industrial action had in any way affected the position of workers, who remained free to engage in industrial action, whether in relation to a trade union dispute with their employer or in support of other workers or of some other objective. Third, there was nothing in Convention No. 87 that indicated that there should be legal protection for sympathy strikes. The Government accordingly did not accept that there was any need for further legislation concerning protection against civil liability for acts of calling for, or otherwise organizing, industrial action on the grounds that this was necessary to ensure compliance with the Convention.

In later submissions, the Government had added that permitting forms of secondary action would be a retrogressive step and would risk taking the country back to the adversarial days of the 1960s and 1970s, when industrial action frequently involved employers and workers who had no direct connection with a dispute. The Employer members did not deem it necessary to comment on this hypothesis because, in their view, the current situation did not contravene Convention No. 87. They agreed that it was up to the Government to decide whether it wanted to provide civil protection for sympathy strikes and, until it did so, they believed that the status quo should be maintained.

The Worker member of the United Kingdom turned first to the way in which the right to associate was restricted by the law. Section 174 of the Trade Union and Labour Relations (Consolidation) Act forced trade unions to accept into their membership people who were members of extreme right political parties, whose views the majority found fundamentally abhorrent. Trade unions were not allowed to expel those people unless they had actively conducted themselves in a way which contravened union rules or policies. Moreover, any progress on the matter, as reported by the Government, had been forced by the ruling of the European Court of Human Rights. Indeed, the Government's proposals were for only limited change, which would not resolve the problem and would not meet the requirements of full compliance with Convention No. 87.

Article 3 of the Convention provided that unions could draw up their rules without interference from the public authorities. The Government was seeking to maintain the position that a trade union could not take disciplinary action against a member who refused to follow the democratic decision of the union to take industrial action. This was a grave and important breach of Convention No. 87 in that it attacked the primary purpose of any independent trade union - to promote and protect the collective interests of its members. Those collective interests were pursued following democratic decisions involving those affected. For a union not to be able to protect those decisions by discipline or expulsion of those who refused to abide by them was a fundamental attack on its powers to operate effectively.

Under United Kingdom law, no associations other than trade unions were required to admit into membership those who espoused views fundamentally contradictory to those of the association and its members. She gave an example of an animal charity with a policy against hunting that had decided to exclude from its membership all those who were in favour of hunting. The charity had been unsuccessfully challenged in the courts. There was no justification for treating trade unions differently under the law from any other membership organization.

One effect of the current law was to provide, albeit unintentionally, the far right with a weapon with which to attack trade unions. In January 2003, a far right magazine had urged its readers to infiltrate trade unions specifically in order to be thrown out and then sue for hefty compensation.

She added that the right to strike was particularly limited in the United Kingdom. It was not lawful for workers to take action in support of others if they had a different employer, and members of the same union could not call upon one another to take sympathy action unless they were employed by the same body. Even workers that had an interest in, and might be affected by, the outcome of a dispute could not lawfully be called upon to take supportive action. This was important not only in the private sector, but increasingly so in the public sector. Many central and local government functions were now subcontracted to private or tertiary-sector organizations.

Sympathy strikes were not the only limitations in respect of the right to organize. Unions needed to be able to prove that a dispute related to one of a defined list of workplace or contractual issues. Industrial action relating to something outside that list could never be lawful. In addition, there was a very complex set of laws that regulated calls for action by trade unions. A union first had to give notice to the employer that it intended to hold a ballot and provide the employer with a copy of the ballot paper that it would distribute. After the ballot, it had to inform the employer of the ballot result, and finally, at least seven days before calling on any members to take action, it was obliged to tell the employer the sort of action that it would be. Furthermore, the union had to supply employers with details regarding the numbers and categories of workers and the workplaces affected by the ballot or action. In the United Kingdom, a spontaneous walk-out was allowed only if the workers were in danger for health and safety reasons. Trade unions were prevented from taking action in furtherance of their members' interests owing to difficulties in meeting highly technical and complicated legal requirements. The attention of those involved in the dispute was therefore transferred from the injustice and breach of rights that prompted the dispute to the details of the formal legal requirements.

The Committee of Experts had previously asked the Government to keep it informed of developments regarding the right to take sympathy action. The Government had not been able to provide such information, as it had declined to take any steps. She said that the Government had delayed far too long in meeting its obligations under Convention No. 87. She therefore urged the Committee to call on the Government to take further action as a matter of urgency to ensure compliance with the Convention.

The Employer member of the United Kingdom said that, with regard to the right of workers' organizations to draw up their constitutions and rules without interference from the public authorities, he welcomed the decision by the Government to enter into a period of formal consultation regarding proposals to amend section 174 of the Trade Union and Labour Relations (Consolidation) Act in light of the decision of the European Court of Human Rights in the ASLEF v. The United Kingdom case. In relation to the issue of immunity in respect of civil liability for sympathy strikes and other industrial action, he said that there was nothing in Convention No. 87 that required special protection to be accorded in the case of proceedings that concerned the organization of industrial action among workers who had no dispute with their own employer. He therefore supported the position outlined by the Government representative on this matter.

The Worker member of Senegal said that the Committee of Experts had emphasized in its report that problems still remained as regards section 174 of the Trade Union and Labour Relations (Consolidation) Act (TULRA). Although amended in 2004, the Act still gave individuals the possibility of invalidating the basic provisions governing the protection of trade union rights. By authorizing the infiltration attempts of extremist political parties in the trade union movement, the offending legal provisions allowed individuals to damage the autonomy of the trade union movement. In that manner, the Act misrepresented the mission of the trade union movement.

The TUC denounced the automatic compensation of former members excluded by trade unions on account of their membership of an extremist political party. That system meant that trade unions could do little in relation to individuals whose practices were incompatible with trade union activism. The TUC should be able to protect itself against extremism. The statutes of trade unions were their constitution, and they should not be weakened. The freedom of an individual should not challenge that of trade union organizations. Obliging a trade union to pay compensation to an excluded member seemed to be the best means to encourage prejudicial action.

Referring to sections 223 and 224 of the TULRA, he said that they infringed the principle of solidarity, which constituted the basic foundation of trade unionism. The fact that workers could participate in sympathy strikes constituted their real means of resistance. The limitations contained in those sections were contrary to Convention No. 87 and to the right to organize. The Government should therefore take the necessary measures to ensure that the guarantees provided by Convention No. 87 were not rendered ineffective. The authority of Conventions was at stake. Real reforms were needed, as the status quo was not a viable solution. He concluded by calling on the Government to restore effective dialogue with the TUC.

The Worker member of the United States said that sympathy strikes were becoming an increasingly frequent and important tool because of economic globalization and delocalization. The Committee on Freedom of Association had found that the prohibition of sympathy strikes was abusive and that such strikes should be allowed if the original strike was lawful.

The Committee of Experts considered that the restrictions imposed by the Trade Union and Labour Relations (Consolidation) Act violated ILO standards and had repeatedly asked the Government to take the necessary measures to amend Sections 223 and 224 of the Act. However, the Government had refused to do so. According to the legislation, strikes were lawful only if they related to the primary employer, a term which had a narrow legal definition. It referred only to the work site, and did not extend even to subsidiaries of a parent company. The restrictions ignored the legitimate interests of workers and had led many British companies to divide their workforce artificially in order to create buffer companies.

The restrictions on sympathy strikes were having a documented negative effect on freedom of association in the United Kingdom. One such example was the case of 670 staff of Gate Gourmet, an airline catering company, who had been dismissed following a lawful strike relating to the employment of casual staff. Some 100 airline employees had embarked on a two-day strike in sympathy with their close industry colleagues, who had been employed by a different company but with whom they had shared the same workspace. The company had acknowledged that it had drawn up a plan to deliberately provoke industrial action so as to give itself an excuse to dismiss staff and replace them with cheaper labour. Although it also claimed that that plan had been rejected, the dismissals had occurred and the unions had not been able to negotiate the workers' reinstatement.

It was therefore clear that the law in the United Kingdom severely restricted the ability of workers to act collectively and to exercise the rights protected by Convention No. 87.

The Government representative thanked all those who had contributed to the debate, and particularly those who had expressed support for the Government's efforts regarding the future amendment of section 174 of the Trade Union and Labour Relations (Consolidation) Act, 1992, in relation to the ability of trade unions to exclude or expel an individual on the grounds of his or her membership of a political party.

In relation to the issue of the legality of secondary industrial action, he said that the case of Gate Gourmet was not a typical example. Dismissals for strike action were extremely rare and the situation in the country should not be judged on the basis of a single case. In view of the specific industrial relations situation in the United Kingdom which he had described earlier, it would be particularly harmful if there were to be a large number of sympathy strikes.

He said that the Government would respond to the issues raised by the Committee of Experts and the Conference Committee in its next report under the Convention.

The Employer members said that, in relation to the right of workers' organizations to draw up their constitutions and rules without interference by the public authorities, there should be due and proper recognition of the statement by the Government representative that a process of consultation was under way and that the Government intended to amend the law. The Committee could not ask for more than that.

With regard to sympathy strikes, although noting the comments that had been made, they said that those arguments should be taken up within national legal structures which was where they could be debated correctly. Nothing in Convention No. 87 required legal protection for sympathy strikes. Regarding the sympathy strike in the Gate Gourmet case, they pointed out that the courts had found that the industrial action had been unlawful.

The Worker members said that in their view four essential points had to be included in the Committee's conclusions. Firstly, the Committee had to recognize that the right to freely determine the membership criteria for new trade union members and to exclude members from the trade union, or take other disciplinary measures against members who refused to comply with decisions taken in a democratic manner, were essential elements of the right of workers to organize, particularly to protect trade unions against infiltration by members of associations whose ideas were incompatible with the values and social and democratic model espoused by the trade union movement.

Secondly, they noted that the Government had expressed its willingness to amend the legislation and admitted that the amendments made in 2004 did not fully address the concerns relating to freedom of association, and that further steps were necessary. It was essential for any further amendments made to the legislation to be discussed with the social partners so as to create a legislative framework that was in full conformity with Convention No. 87 and the jurisprudence of the European Court of Human Rights. That should be done in close collaboration with the ILO.

Thirdly, as had been emphasized by the Employer and Worker members of the United Kingdom, the current legislation did not respect the right of trade unions to take disciplinary measures against their members. The Worker members had requested the Committee of Experts to examine this issue, taking into account the additional information that the Government would provide, so as to ensure that the legislation was in full conformity with Convention No. 87.

Finally, they called on the Government to recognize the right to participate in sympathy strikes. Such recognition necessarily implied the amendment of sections 223 and 224 of the TULRA, which should be done in collaboration with the national social partners. Addressing the Government and the employers, the Worker members recalled the principle that the Committee on Freedom of Association had laid down on several occasions that the right to organize sympathy strikes was part of the right to strike.

The Committee took note of the statement made by the Government representative and the debate that followed. The Committee observed that the Committee of Experts' comments referred to several legislative provisions impacting upon the right of workers' organizations to draw up their constitutions and rules and to organize their activities without interference by the public authorities.

The Committee noted the Government's statement according to which it has issued consultation documents, widely circulated to all UK trade unions and employers' organizations, suggesting possible amendments to section 174 of the Trade Union and Labour Relations Act (TULRA), including the removal of all statutory limitations on trade unions regarding their ability to expel or exclude individuals on the grounds of their political membership or activities. The Government indicated its intention to change the law in this respect at the earliest opportunity.

The Committee noted the recent judgement of the European Court of Human Rights which, making explicit reference to Articles 3 and 5 of ILO Convention No. 87, found the application of section 174 of the TULRA to be contrary to Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It welcomed the Government's commencement of a consultation process proposing possible approaches to the amendment of section 174 and expressed the hope in this regard that the TULRA would be amended in the near future so as to ensure that workers' organizations may draw up their constitutions and rules without interference by the public authorities.

The Committee further requested the Government to engage in full consultation with the national workers' and employers' organizations concerned with a view to reaching a consensus on the other matters raised in the debate. It requested the Government to provide detailed information on the progress made in the consultation process and on all proposed legislative changes in its next report to the Committee of Experts. The Committee trusted that the Committee of Experts would pay particular attention to the discussion that took place on this case.