Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1950)

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and acts of interference. The Committee has noted in previous comments the Trades Union Congress (TUC) assertion that, where the incumbent trade union is non-independent, a request for derecognition can only be made by an individual worker and not by an independent trade union, and that the independent trade union has no right of access to the workplace and no right to communicate with the workforce while derecognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the derecognition process. With regard to the first point, the Committee notes the Government’s indication that there is nothing to prevent the non-incumbent union from assisting the workers involved in making the application for derecognition and that the Government does not believe that it is appropriate for a non-incumbent trade union to be able to make a request of its own volition (the Government refers to its report for the period 2006–08 where it considered the issue of inter-union disputes). As to the second point, the Government indicates that its previous report is again relevant – specifically, the explanation about the importance of avoiding the destabilization of industrial relations through inter-union disputes. The Committee takes note of the TUC’s comments on these Government observations: (1) an individual worker who initiates a request to derecognize a non-independent staff association (the very existence of which is a violation of ILO Convention No. 98, Article 2), runs the risk of dismissal or other sanctions, a risk that could be relieved if a bona fide trade union with members in the workplace could make the request (the TUC considers that the only reason that explains that a trade union should be denied this power is to discourage requests from being made); (2) the Government does not explain why such a request would be inappropriate; and (3) the TUC notes that in the law of unfair practices introduced in 2004, a complaint may be made by a trade union against the employer and that the creation of a non-independent trade union to deny bargaining rights to a genuinely independent trade union is another form of unfair practice and recognized as such in other ILO member States. The Committee requests the Government to reply to these comments.

In its previous observation, the Committee noted with satisfaction that, in order to try to combat the practice of some employers and employment agencies of using “blacklists”, the Employment Relations Act 1999 (Blacklists) Regulations 2010 were introduced by the Government and came into force on 2 March 2010. The Committee notes that, in its 2010 communication, the TUC expressed its concern as to the narrow scope and limited range of the regulation. In particular, it alleged that: (1) there is no right not to be blacklisted per se; (2) there is no definition of what is meant by trade union activities for the purposes of the regulations; and (3) no provision is made to compensate victims of blacklisting, a practice which has been exposed to have taken place over the last 30–40 years. The Committee notes that these concerns are echoed in the International Trade Union Confederation’s (ITUC) 2010 and 2011 communications. The Committee notes the observations of the Government with regards to the TUC’s comments.

As to the first comment, the Government indicates that the regulations define a prohibited list (i.e. a blacklist) and prohibit the compilation, dissemination and use of prohibited lists. They also make it unlawful for organizations to refuse employment, to dismiss an employee or otherwise cause detriment to a worker for a reason related to a prohibited list. Finally, the regulations make it unlawful for an employment agency to refuse a service to a worker for a reason related to a prohibited list. The Government believes that this constitutes an effective, targeted and proportionate response to combat blacklisting and has seen no evidence that convinces it that a blanket right is necessary.

With regard to the second aspect of the TUC comment, the Government indicates that the term “trade union activities” is widely used in trade union law in the United Kingdom but has not been defined in statute or as a result of case law. It explains that it was felt that it would have been confusing to introduce a definition in the regulations, and the Government does not consider, in any case, that it would be appropriate for this to apply to unofficial industrial action as such action is especially disruptive since it is not sanctioned and controlled by a trade union. The Committee notes that the TUC indicates that: (1) the Government’s response acknowledges concerns that the term “trade union activities” is limited and confirms that the TUC is right to be anxious about the narrow scope of the Regulations; and that (2) many of the blacklisted workers identified in 2009 by the Information Commissioner’s Office were blacklisted because of trade union-related activities (usually exposing health and safety abuses on worksites) which were not necessarily sanctioned by their trade union.

Concerning the third aspect of the TUC’s comment, the Government considers that there are already protections under the Data Protection Act 1998 – for example, under section 13 of the Act, individuals are able to sue the data controller for damages and distress as a consequence of any failure by the data controller to comply with the Act’s provisions. It is a well-established principle in the United Kingdom that new regulations are not given retrospective effect. The Committee takes note of the TUC’s comments that: (1) it understands that the Data Protection Act 1998 does not make provision for compensation, which is why a number of blacklisted workers have been making what in most cases have been forlorn attempts to use other avenues of legal redress and that, in any event, some of the losses were incurred before the Data Protection Act 1998 came into force in 2000. The TUC is not convinced that provision cannot be made retroactively to compensate victims. The Government in 1982 introduced a retroactive compensation scheme to compensate workers who had been dismissed between 1974 and 1980 because they were not members of a trade union. The TUC queries why the same could not be done today for workers who were on the blacklist and therefore refused employment because they are members of a trade union or engaged in trade union-related activities.

The Committee takes note of the Government’s observation on the ITUC comments that the Government is unaware of any problems following the implementation of the Regulations and is satisfied that they deal appropriately with the issues originally identified.

The Committee requests the Government to reply to the TUC’s additional comments and to indicate any consultations undertaken with the social partners with a view to considering measures for compensating past victims of blacklisting.