Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

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 welcomed the opportunity to inform the Committee on the revisions made to the Trade Union Bill since it was considered by the Committee of Experts and before it was passed into law on 4 May 2016. The Government was confident that the Trade Union Act, which aimed to promote a more effective and collaborative approach to resolving industrial disputes, complied with its international obligations on trade union rights. The ILO Governing Body, the Governmental Committee of the European Social Charter and the European Court of Human Rights had previously accepted its legislative approach to strike the right balance between trade union rights and legitimate interests of others affected by their actions. The Government had maintained this balanced approach in its proposals to implement its commitments to trade union reform that had received democratic support at the last general election. For example, the introduction of ballot thresholds addressed the fact that industrial action affected large numbers of the public who did not have a say in a strike ballot. In view of the widespread adverse consequences of industrial action in public services, the Act required that strikes in “important public services” received the support of 40 per cent of those who voted, in addition to a 50 per cent turnout, to ensure the necessary democratic legitimacy and clear majority support. The 40 per cent threshold was meant to apply to services extremely significant to the public and the initial use of the term “essential” was not connected with any existing definition. To avoid confusion, the term “important public services” was now used. Other reforms in the Act included the extension of the notice for strike action from seven to 14 days, so as to allow more time to prepare, though a seven-day notice could still be agreed with the employer. The Act also established a duration of strike ballot mandates of six months, extendable by agreement to nine months, to avoid strikes on outdated mandates. It required more clarity on ballot papers on the matters in dispute, as well as on the type of proposed industrial action. In relation to picketing, after consultation and concerns in Parliament, the Government had not taken forward the idea of requiring protest plans to be published weeks in advance. Instead of introducing a new criminal offence related to picketing, it had focused on modernizing the Code of Practice on Picketing. Concerning electronic balloting, the Government needed to be satisfied that it allowed all those entitled to vote to do so, that votes were secret and secure, and that risks of intimidation or malpractice were minimized. To that end, the Act required an independent review of electronic balloting within six months. The Trade Union Act modernized the union regulator, by giving to the certification officer updated powers in line with similar authorities. It introduced a partial levy to share with taxpayers the cost for regulating trade unions and employers’ associations. It also required public sector employers to publish information on facility time for union officials and that payroll deductions of union dues be administered only where the cost was not funded by the public purse. Measures in the Act had been subject to extensive democratic scrutiny during the passage of the Bill and three large public consultations with trade unions, employers and members of the public. The Government was still considering its response on the proposal to repeal the ban on hiring agency workers during strike action and would announce its position in due course. During the consultations and extensive scrutiny by both Houses of Parliament, it had made revisions in light of evidence put forward. For example, it had revised proposals on the duration of strike ballot mandates, from four to six months, and allowed their extension by agreement to nine months. It had modified its initial proposal to ban check-off arrangements in the public sector to allow them to continue where they were at no cost to the public purse. Specific aspects relating to union political funds had been scrutinized by a Select Committee in the House of Lords; as a result, the Act established that the requirement to opt-in applied only to new union members, which was welcomed by all political parties. In conclusion, the Government was confident that the provisions in the Trade Union Act were reasonable, proportionate and based on a balanced approach, and that they were in line with its international obligations; they did not intend to prevent industrial actions, but to ensure they enjoyed a reasonable level of participation and support, to the benefit of everyone.

The Worker members pointed out that the Trade Union Bill had been introduced by the Government in July 2015 to severely restrict the right of workers to undertake industrial action, including pickets and strikes. The situation had been worsened by a proposed amendment to the 2003 Regulations on employment agencies to allow the use of agency workers as strike breakers. In addition, the Government had been allowed to interfere in voluntarily concluded collective agreements on trade union facilities – including time facilities related to health and safety, members’ representation, consultation on redundancies and negotiations on pay and working conditions. The Act also granted to the certification officer significantly expanded powers to engage in highly intrusive investigations into trade union activities at the behest of employers and other groups. The Government had failed to put forward any compelling arguments for the reforms introduced. The current laws already heavily regulated industrial action and did not need further tightening. The reforms, which ignored international obligations under the Convention and other instruments, would undermine rather than improve industrial relations. The Committee of Experts had examined the proposed legislation and made a number of observations with regard to the additional ballot requirements for industrial action in certain sectors, the limitation on the methods of strike balloting, and the use of agency workers to replace strikers. Other matters had been referred to the Government for further information by means of a direct request. Concerning ballot thresholds, the Bill proposed higher minimum levels of participation for lawful industrial action. In all sectors, such action would be lawful only if 50 per cent of those entitled to vote did so, and that if a majority of those voting supported the action. For six sectors deemed “important public services” – namely: health services; education; fire service; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security – an overall 40 per cent vote in favour was required. Thus, in the case of a participation of 50 per cent, 80 per cent of those voting would be required to support the proposed action. The Committee of Experts had expressly urged the Government to ensure that education and transport would not be covered by the new higher threshold, as they were not essential public services in the strict sense of the term. As to the ballot methods, unions had to comply with complex notice requirements and to hold a postal ballot to ascertain support for the proposed action; they were prohibited from using other means such as allowing for strike votes at the workplace or electronically. The Government had opted for means to suppress strikes rather than to increase turnout for strike votes, if indeed its concern was that strikes were not sufficiently supported by membership. After the House of Lords had voted by a large majority, amendments requiring the Government to commission an independent review into the use of electronic voting and to publish a strategy to roll-out electronic voting, the Government had introduced amendments to ensure that it would be under no obligation to act following the review. The extent to which social partners would be a part of the review process remained unclear.

The use of agency workers to replace workers on strike had been banned since 1973 and there was no defensible reason to repeal that ban now or at any time. Allowing it could have no other purpose than to weaken strikes and ultimately to prevent workers from exercising their right to take strike action. As with other proposals, this would only worsen industrial relations, by making it far more difficult for parties in a dispute to resolve differences. It would create resentment among workers, which would last long after the dispute had ended. It would also put agency workers in a difficult if not impossible position. It had to be recalled that many employment agencies, including those affiliated to the International Confederation of Private Employment Agencies (CIETT), had agreed with unions not to use agency workers to break strikes, creating the space for less professional and accountable agencies to supply strike-breakers. Even the enterprises affected by a strike would stand to lose, as the agency staff would be inadequately trained, resentful and far less productive. In some occupations, the lack of adequate training would likely involve health risks. The ILO was unequivocal in condemning the use of replacement workers and had condemned countries such as the United States, Chile and Zimbabwe for allowing the hiring of replacement workers. In particular, the Committee on Freedom of Association had explained that “the hiring of workers to break a strike in a sector which could not be regarded as an essential sector in the strict sense of the term constituted a serious violation of freedom of association”. The Government had not yet announced whether it would go ahead with its plans to introduce regulations lifting the ban on the use of agency workers to replace striking workers. The Trade Union Bill had also introduced several limitations on picketing, a power to cap union facilities, even where arrangements would have resulted from voluntary negotiations between employers and unions, and enhanced the powers of the certification officer. These matters were not addressed in the observation of the Committee of Experts but were instead referred to the Government in a direct request for further information. In these areas, some important concessions had been made in the legislative process. Taken together, the various proposals amounted to an unprecedented assault on the right to take industrial action. They were in clear breach of the Government’s obligations under international labour law, including the jurisprudence of the ILO supervisory system over several decades. Indeed, in February 2015, the Government group, including the Government of the United Kingdom, had issued a unanimous statement in which it recognized “that the right to strike was linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government group specifically recognized that without protecting a right to strike, freedom of association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests, could not be fully realized”. Of course, the right was not absolute, and no one had ever claimed that. However, the Trade Union Bill struck at the heart of that right, rendering it difficult if not impossible to exercise it lawfully.

The Employer members thanked the Government representative for the information provided and noted with interest the process of consultation in relation to the drafting of the Trade Union Bill. The application in the United Kingdom of this fundamental Convention had been the subject of observations from the Committee of Experts on 12 occasions since 1995. Its observation of 2013 dealt with the right of unions to draw up their rules and formulate their programmes without interference from the authorities, in particular with regard to the expulsion of individuals on account of their membership in an extremist political party with principles and policies repugnant to the trade union. It also raised the need for fuller protection of the right of workers to exercise legitimate industrial action, including the issue of immunities from civil liabilities. That observation was not discussed by the present Committee. The latest observation took note of the Trade Union Bill tabled in July 2015 and of the concerns expressed by the Trade Union Congress (TUC) in relation to the Government’s legislative proposals. This raised two primary concerns for the Employer members. First, it was clear that when the Committee of Experts made its observation, it was commenting on a draft Trade Union Bill, which was still subject to social dialogue, a democratic process of discussion, debate and review; its comments were therefore premature. Revisions had been made since, hence the said comments did not reflect the current situation. The basis and status of the observation were unclear and needed clarification. Second, the observation contained a number of comments on issues such as picketing, strike ballot and quorum requirements, use of replacement workers in the event of strike, that is, issues which were all related to the regulation of strikes. The position of the Employer members that the Convention did not include the right to strike was well known and did not need to be repeated. It sufficed to say that there was no consensus in the present Committee on the issue. Since the Worker members had referred to the statement made by the Government group in February 2015, but only to quote its paragraph 4, it was useful to recall that the following paragraph of the same statement also noted “that the right to strike, albeit part of the fundamental principles and rights at work of the ILO, was not an absolute right”, that “the scope and conditions of this right were regulated at the national level” and that “the document presented by the Office described the multifaceted regulations that States had adopted to frame the right to strike”. The Employer members had heard the Government explain the complex issues and the act of balancing competing rights when considering these issues and looked forward to continuing the discussion.

The Worker member of the United Kingdom underlined the far-reaching restrictions of the Trade Union Act on trade union activities. The Trade Union Act provided the certification officer with wide-ranging powers to investigate union affairs and access confidential records, including the names and addresses of union members. In addition, the Trade Union Act curtailed the freedom of the unions to decide on the use of their funds and empowered the Government to restrict the ability of public sector unions to represent their members. Unions were required to appoint picket supervisors whose contact details had to be given to the police. These changes exposed the unions to an increased risk of legal challenges and to punitive financial penalties. Politicians from all major parties had spoken publicly against the Trade Union Act. Non-profit organizations had warned that the Bill would render the right to strike illusory. The devolved Scottish and Welsh Governments had both publicly opposed the Bill. Regarding the high voting thresholds, the Trade Union Act introduced a new requirement for a 50 per cent turnout. The Government assessed that 45 per cent of ballots in the last five years would not have been valid under this new rule. The Chartered Institute of Personnel and Development (CIPD), the leading human resources body in the United Kingdom, had called the thresholds “outdated” and had pointed out that in the last 20 years, the number of workdays of strike actions had fallen by more than 90 per cent. In parts of the public sector qualified as “important public services”, the Government would additionally require unions to meet a 40 per cent favourable votes of all those entitled to vote. When analysed together, the two voting requirements entailed that a 50 per cent turnout on a ballot would require an approval rate of 80 per cent. This Act would permit much wider restrictions to freedom of association than the ones allowed by ILO standards. This Act would also have a disproportionate gender impact, considering that an estimated 73 per cent of the workers in these “important public services” were women. The Secretary of State had justified the inclusion of education and transport in the list of “important public services” by the inconveniences caused by stoppages in those areas, and not for reasons of public safety and security. The Minister had also said that the thresholds ensured that strike actions could only be carried out with a “reasonable” level of support. There were no other areas in which a requirement for up to 80 per cent support was considered reasonable, least of all when related to exceptions to fundamental democratic rights. The process for industrial action was already long and highly regulated. The Trade Union Act not only added further complex procedural requirements, including a doubling of notice periods for action, and extensive additional information to be included in the voting paper, it also provided that a ballot for action would expire after six months and thus had to be repeated if the dispute had not yet been resolved. The postal ballot process had to be simplified and modernized to allow for electronic voting. The Government also intended to undermine any future action by allowing striking workers to be replaced by agency staff. This replacement of strikers was not desired by the employment agencies, as it was against the spirit of the European Union (EU) Temporary Agency Worker Directive (2008/104/EC), and contrary to the European sector’s professional code of conduct. It also constituted a serious violation of freedom of association and aggravated potential disputes between employers and employees. The Worker member concluded by highlighting that the Trade Union Act constituted a serious interference with the rights of United Kingdom workers under the Convention and called on the Committee to request the repeal of the Trade Union Act and to discuss with the social partners on how to develop a legal framework adequate to the challenges of the twenty-first century.

The Employer member of the United Kingdom recalled that trade unions had been declared lawful by the Trade Union Act of 1871, long before the creation of the ILO and that the United Kingdom had not had a problem ratifying the Convention in 1949. Before its enactment the Trade Union Bill had received a high level of tripartite engagement and parliamentary scrutiny. Following the Conservative Party’s election, the new Government had announced package reform measures, as promised during the electoral campaign, that included the Trade Union Bill and three consultation papers on the use of agency workers, ballots thresholds and intimidation picketing. Following the consultations, the Confederation of British Industry (CBI), the United Kingdom’s leading business organization, and the TUC, an organization comprising 52 unions, had given oral evidence. The Bill had later been read by the House of Lords where all the main political parties were represented and where sat, among others, 16 former union leaders and 70 former union members. Subsequently, the Government had taken into consideration the outcome of the consultations and had amended the Bill to: remove the extension of the 40 per cent threshold to auxiliary workers; apply the 40 per cent threshold to private sector union members carrying out a specific important public service; and require ballots to be run under the 40 per cent threshold where a majority of workers involved were carrying out an important public service. The Government also concluded that the ILO definition of essential services was not definitive and confirmed the six identified important public sectors. The legislative process had followed its course and, later on, the CBI had given further written evidence, the House of Lords report had been published and several amendments had been proposed and adopted. On 4 May 2016, the Bill had received Royal Assent and had become the Trade Union Act 2016. The Government still had to draft secondary legislation for some parts, including on the use of agency workers, and had to consult on other parts. This meant that more parliamentary and public scrutiny would come and that it was unlikely to be a speedy implementation process. The speaker supported the consensus between the social partners, as expressed in their joint statement of February 2015, that: “[t]he right to take industrial action by workers and employers in support of their legitimate industrial interest is recognized by the constituents of the ILO”. There was no consensus that the Convention included the right to strike and its modalities. The consensus position of the Government group, as expressed in February 2015, confirmed: “that the right to strike, albeit part of the fundamental principles and rights at work of the ILO, is not an absolute right. The scope and conditions of this right are regulated at the national level”. The situation was problematic on many levels with regards to the Convention and the issue of the right to strike remained unresolved both legally and politically. The recent difficulties were appreciated and lessons had been drawn from the dramatic events in 2012 and 2014. The Director-General, in opening this Conference, had highlighted: “So facing up to the responsibilities which the ILO’s mandate for social justice imposes upon each one of us means adjusting our actions, our behaviour, our decisions to ensure that the undoubted opportunities of transformative change at work are realized. So that all – not just the few – can look to the future not with fear but with confidence, not with an eye only to individual advancement but also with a real sense of common purpose”. The Director-General had also recalled the crucial role of the Conference Committee in finding a way forward despite the underlying divergences of opinions and had emphasized the importance of a strong, authoritative and relevant standards system for an effective and influential ILO. The speaker wanted to constructively engage to help the ILO find lasting and harmonious resolutions of these divergences. A more private forum would help build the understanding necessary to find those resolutions. To conclude, the speaker expressed the hope that the conclusions on the case would be in accordance with the guidance of the Director-General and would respect the tripartite consensus.

The Government member of the Russian Federation expressed concerns over the adoption by the Government of a series of measures to reform the labour laws which might adversely affect the realization of the workers’ rights of association guaranteed by the Convention. Actions that would affect the basic labour rights had to be the object of discussions with the social partners and, where appropriate, the ILO should be consulted to assess whether such measures would be in conformity with the international labour standards.

The Employer member of the United States emphasized that the present case was not ripe and as such should not be heard by the Committee. Under the ILO Constitution, the Committee was a committee in charge of examining whether a member State was applying its domestic law in a manner that was consistent with the Conventions it had ratified. The legislation that had been under scrutiny was a draft that had never been implemented. At the time of the adoption of the comment of the Committee of Experts, the legislation was a draft Bill that had not even passed one House of Parliament. Instead of reviewing a Bill, the Conference Committee should dedicate its precious time to hearing more important cases that had been left off the list. It was unlikely that governments would allow the Committee of Experts to interfere with their internal legislative processes. To conclude, the speaker questioned the decision of the Committee of Experts to formulate an observation on a draft Bill, especially when its subject matter, the right to industrial action, was extremely controversial.

The Worker member of New Zealand, also speaking on behalf of the Worker members of Australia, Canada, Fiji, Kingdom of Tonga and the United States, addressed the voting mode for industrial action in the United Kingdom. A mandate for strike action had to be sought by secret postal ballot, the costs of which appeared to be almost £200,000 per ballot and had to be borne by the union. The Trade Union Act significantly increased the requisite frequency of balloting. Moreover, there were new threshold requirements for strikes and the possibility for employers to either seek injunctive relief to halt a strike action, or to use agency workers to replace striking workers. The laws on industrial action were widely regarded as some of the strictest in Europe with the United Kingdom being an outlier even among the so-called “Anglo” countries (that is, Australia, Canada, New Zealand and the United States). The Committee of Experts and the Committee on Freedom of Association had been clear that procedural rules which substantially attenuated the right to strike might violate the Convention. In paragraph 170 of the 1994 General Survey on freedom of association and collective bargaining, the Committee of Experts indicated that, in relation to member authorization for industrial action, “the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice”. Similarly, the Committee on Freedom of Association, in paragraph 547 of the 2006 Digest of decisions and principles of the Freedom of Association Committee indicated that: “[t]he conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations”. Recalling that the Members of the House of Lords had requested an independent review into the use of electronic voting in industrial action ballots to which the Government had not yet given any follow-up, he called on the Government to work with the social partners to permit electronic voting and workplace voting as soon as possible.

The Employer member of Argentina reiterated the Employers’ position on the right to strike and the Convention. Every State was legitimately entitled to adopt laws regarding the right to strike in order to allow the exercise of this right. However, in the case of the United Kingdom the Committee of Experts was raising questions about a Bill that had been adopted since then, that regulated specific aspects of the right to strike, such as the voting procedure, restrictions on picketing and the replacement of striking workers. In doing so the Committee of Experts was raising issues that were not within its mandate. All States regulated the right to strike, which was not an absolute right, and although they had to consider the possible exercise of that right they also had to ensure that it was compatible with other rights, such as those relating to the employer’s property, freedom of movement and, above all, the right of workers who wanted to work. Despite the fact that the number of such workers might exceed that of workers in favour of taking forceful action, they might not be able to work because of the picketing. One could not possibly argue that employers should be the ones financing trade unions and pickets.

An observer representing the International Transport Workers’ Federation (ITF) commented on sections 2 and 3 of the Trade Union Act, namely the new requirement of a 50 per cent participation quorum in strike ballots and the requirement of 40 per cent support of all workers in “important public services”. The critical economic role of the transport sector was being used as a pretext to defend the free movement of passengers and goods over the rights of workers involved in transportation. Crackdowns of strikes in the transport sector had been occurring across the world in recent years. While the Trade Union Act did not ban strikes in the sector outright, the additional requirement of 40 per cent support would in fact deprive transport workers and all other workers in charge of “important public services”, from their right to strike, as they would not be protected through compensation guarantees. This negative result would be further aggravated by the existing legal mechanisms available to employers to obtain injunctions to cease actions. The additional 40 per cent requirement for important public services implied that 50 per cent of the members plus one member had to vote in a ballot and that 80 per cent of votes had to be in favour of an industrial action for such action to be lawful. The request of the TUC for electronic balloting had to be considered in the international context. In Germany, where some unions voluntarily laid down ballot thresholds in their rulebooks, ballots were held in workplaces rather than by post, producing higher turnouts. In Australia, a highly prescriptive system of strike ballots, it was possible to permit workplace and electronic voting. The Committee of Experts indicated clearly in its comments that the new ballot threshold would contravene with Article 3 of the Convention. The ILO supervisory bodies had held that the right to strike could only be restricted in the public service for those exercising authority in the name of the State or in essential services in the strict sense of the term. Transport occupations listed by the Government, namely local bus services, passenger railway services, airport security services and port security services, could not be considered essential services. The right to strike was a human right protected by the Convention and constituted international customary law. To conclude, the observer urged the Government to comply with the request formulated by the Committee of Experts to abandon the heightened requirement of support of 40 per cent of all workers in education and transport services.

The Employer member of France said that the case warranted the Committee’s attention. Based on observations by the TUC, the Committee of Experts requested the Government to review the Bill with the social partners with a view to its amendment. However, since it had been examined, the Bill had been extensively amended, which meant that the Conference Committee faced the difficult task of considering a text that was going through the stages of a national standard-setting procedure. The Convention provided a framework for the exercise of freedom of association and the protection of trade union rights. In doing so it placed two restrictions on the public authorities. By virtue of these restrictions, set out in Article 3(2) and Article 8(2) the public authorities must refrain from any interference which would restrict the right of workers’ and employers’ organizations to establish and join trade unions freely and the law of the land must not be such as to impair, nor be so applied as to impair, the right of employers and workers to establish workers’ and employers’ organizations. The Bill did not in fact run counter to either of those restrictions. None of the provisions referred to by the Committee of Experts came within the purview of the Committee since, it should be remembered, governments alone were competent to determine the rules governing the suspension of work contracts in the eventuality of a dispute. Finally, the Committee of Experts did not establish that there was any violation of the Convention, which was solely concerned with guaranteeing the freedom to establish employers’ and workers’ organizations.

The Worker member of Italy stressed that, in addition to the measures contained in the Trade Union Act, the Government proposed to authorize the recruitment of agency workers to replace strikers. This proposal infringed workers’ freedom of expression, and rights to organize and protest. The proposal would also have severe detrimental effects on recruitment agencies, which have expressed their opposition to the replacement of strikers with agency workers. Furthermore, the proposal would increase tensions between employers and workers, and would lead to employees seeking new employment opportunities, thus reducing productivity and causing an increase in recruitment and training costs. The Committee on Freedom of Association had found that the hiring of workers to break a strike in a sector which could not be regarded as an essential sector constituted a serious violation of freedom of association. In 2015, the Government of Italy and the trade unions issued a joint statement in which they called for the reaffirmation of the right to strike in all national and international forums in which the fundamental rights of people and workers were protected. The joint statement read as follows: “[t]he Treaty of Lisbon recognizes this right as one of the EU fundamental rights and defines a sort of joint European notion of this right, in addition to the national ones, by considering it a universal right. The ILO Committee of Experts, entrusted with the task of analysing national reports and detecting the infringements of Convention No. 87 signed by all EU Member States, has operated along these same lines. Said Convention, together with the other seven fundamental Conventions, contributes to define the minimum level of protection to be ensured to the rights recognized by the EU Charter of Fundamental Rights”. In reaction to the criminalization of strikes by the Italian fascist regime, the right to strike had been recognized as a fundamental right protected under the Italian Constitution. The right to strike, by giving to trade unions an economic leverage, also guaranteed freedom of association. To conclude, the speaker called on the Government to reconsider its proposal to authorize the recruitment of agency workers to replace strikers and engage in a dialogue with the social partners.

The Employer member of Denmark stated that the modalities of industrial action had to consider diverse elements of the national labour market. The obligations in respect of industrial action had been clearly reflected in the Government group statement of February 2015, which should be the basis for the work of the Committee of Experts and the Conference Committee. According to this statement, the scope and conditions of industrial actions should be regulated at the national level. He therefore noted with concern that the comments of the Committee of Experts dealt almost entirely with the aspects of industrial action in draft legislation. Emphasizing that the Committee of Experts had exceeded its mandate, the employer member refrained from commenting further on these comments.

The Worker member of Germany said that he was very worried about the freedom of association of British workers. The attack on these rights was reminiscent of a very dire period of British social policy, that is, the Thatcher era, during which all rights of workers had been severely curtailed. As a result of that policy, industrial relations had not recovered until today. While the provision concerning the explicit permission of the use of agency staff to replace striking workers had been removed from the Bill upon extreme pressure, the strike-breaking by agency workers remained of major importance for the Government. However, permitting the use of strike-breakers had wide-reaching consequences: not only did it compromise or render impossible the right to strike of trade unions, but – coupled with the minimum notification of two weeks prior to the strike – enterprises could take all their time to employ agency workers and any strike would be pointless. In addition, agency workers were generally poorly paid and suffered deplorable working conditions. The balance of powers would be shifted in favour of the employer and the bargaining power of workers would be lost completely. Therefore, such a situation would not only be contrary to Convention No. 87, but also to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). During the consultation procedure concerning the Bill, there had been criticisms not only from trade unions, but also from think tanks, law firms and recruitment agencies. It had also been found that British employers already had many means to replace striking workers. In conclusion, he claimed that strike-breaking should be prohibited as had been successfully done in the United Kingdom in 2003.

The Employer member of Turkey stressed that the case relied solely on the observations of the Committee of Experts and emphasized that the issues surrounding the right to strike modalities were not within the scope of the Convention. Conflicts, such as the one witnessed in 2012 and following years, had been settled with the tremendous efforts of the tripartite constituents. The outcome of the settlement on the matter, while not definitive, had to be taken into serious consideration by the Committee of Experts. The issues raised by the Committee of Experts, such as essential services, strike ballots and picketing related to highly contentious strike restrictions which had no legal basis in the Convention and could lead to further conflicts within the ILO system. Furthermore, the comments of the Committee of Experts in this case predominantly referred to a draft Bill which had not yet been implemented. This approach contradicted the rationale behind the existence of the Conference Committee and its fundamental mission to supervise the actual implementation of the Conventions instead of reviewing draft laws.

The Worker member of Zimbabwe expressed his serious concern over the recent changes to the legislation in the United Kingdom concerning freedom of association and was shocked to see that the Government had now started to adopt the same strategies as the Government of Zimbabwe. Some provisions in the Trade Union Act were very similar to the provisions in the legislation of Zimbabwe, which had contributed to mass violence and economic downfall. In 2008, a Commission of Inquiry had been established with an overwhelming majority in the Governing Body to examine the situation in Zimbabwe. The Commission of Inquiry had found that the list of essential services (including fire and health services as well as transport) was excessive in depriving workers from their right to strike. The United Kingdom had now created additional barriers for workers in essential public services (including health, education, fire, transport and nuclear services) concerning their right to strike in the form of a 40 per cent threshold of all workers entitled to vote with respect to strike ballots. Moreover, the notice period for taking industrial action in the United Kingdom had now been increased from seven to 14 days, a period similar to the one required in Zimbabwe, which had substantially undermined the right of workers to take industrial action. Indeed, the Commission of Inquiry found that the procedure for the declaration of strikes was problematic and explicitly confirmed that the right to strike was an intrinsic corollary of the right to organize protected by the Convention. He emphasized that even though Zimbabwe had been operating under similar provisions to those recently adopted by the United Kingdom that had not led to more jobs or economic security. On the contrary, Zimbabwe had one of the highest unemployment rates in the world. In conclusion, he expressed the firm belief that promoting fundamental rights and most importantly the right to freedom of association was the only way to create decent jobs and shared prosperity.

The Government representative reiterated that the approach throughout the legislative process on the Trade Union Act had been to strike a reasonable, proportionate and careful balance between the rights of trade unions and their members, and the legitimate interests of others affected by their actions. The measures in the Act had been subject to extensive democratic scrutiny. In addition, there had been three public consultations: on the scope of the 40 per cent support ballot threshold for important public services; on whether the legal framework for picketing had to be strengthened; and on a proposal to repeal the ban on hiring agency workers during strike actions (a measure that had not been included in the Trade Union Act). The Government had listened to the views expressed on specific measures during consultations and scrutiny by both Houses of Parliament, and had made revisions in the light of all the evidence put forward. For example, the Government had revised proposals concerning the duration of strike ballot mandates. It had also modified proposals to ban check-off arrangements in the public sector. Indeed, uniquely there was a separate independent Select Committee set up during the passage of the legislation through Parliament on the proposals regarding the contribution mechanism for union political funds. The Government had accepted the vast majority of the recommendations of that Committee and the requirement to opt-in to a union’s political fund now only applied to new union members. This had been welcomed by all political parties. Concerning the new powers of the Certification Officer, this agency was independent from the Government and trade unions could appeal any decision. With regard to electronic voting, the Government had to assess certain issues and would provide information in this regard in due course. Finally, the Trade Union Act had only received Royal Assent on 4 May 2016 and key provisions were yet to come into effect, including through secondary legislation. Observing that there was a wide range of views concerning the perception on industrial action among ILO constituents, the Government remained confident that the Trade Union Act struck a fair balance between the rights of unions and their members and their responsibilities towards the rest of society to everyone’s benefit – and that it fully complied with its international obligations.

The Worker members indicated that the discussion had reflected the Government’s determination in adopting the legislation. The Trade Union Act did not enjoy the support of the people, did not enjoy support among elected representatives of all parties and would put the United Kingdom on the far fringes of industrial relations systems in Europe. Moreover, the Act also contravened well-settled observations and conclusions of the ILO supervisory bodies that had enjoyed decades of tripartite support. The United Kingdom appeared to be associating itself more with countries that had been identified by the ILO supervisory bodies for their non-compliance with freedom of association rights. The Trade Union Act would mean that workers would face even greater limitations to stand up for decent services and safety at work, or defend their jobs or pay. The legislation appeared to be motivated wholly by ideological considerations without forethought as to its social and economic consequences. And the issues were not limited to the right to strike. The Act also granted to the certification officer significantly expanded powers to engage in highly intrusive investigations into trade union activities and obtain records at his own initiative, even without any complaint from a union member. The certification officer would thus have an insight into the internal organization and access to confidential union records (including correspondence between unions and members, membership records, including members’ names and addresses). The certification officer would also be able to investigate all such information in employers’ organizations and even in companies – as they were also a party in collective bargaining agreements. In the view of the Worker members, this very serious case, like many others cases discussed, deserved to be included in the list. The Government was seeking to effectively eliminate by law the fundamental right of freedom of association. Furthermore, the case had been included in the list in consensus with the Employer members. In conclusion, the Government should be urged to: (1) immediately repeal the Trade Union Act and organize full consultation and dialogue with the social partners on any preparation of legislation relating to industrial relations; (2) amend secondary regulation in full compliance with the Convention, including by: (i) withdrawing the proposal to remove the ban on the use of agency workers during strikes; and (ii) remove references to the transport and education sectors from the draft regulations regarding the 40 per cent threshold for strike balloting; (3) in consultation with the social partners, develop and introduce legislation to permit the use of forms of ballots other than postal ballots, including electronic ballots and workplace balloting; (4) with the social partners, review new restrictions on picketing, on union political freedoms and the greater overall control of trade unions through enhanced powers of the certification authority, in order to bring them into conformity with the Convention; (5) refrain from interference in the collective bargaining agreements which have been voluntarily agreed between employers and unions; (6) refrain from interference into trade union activities and into the internal organization of trade unions; and (7) provide a detailed report on progress to the Committee of Experts.

The Employer members welcomed the Government’s commitment to continue the constructive engagement and debate with both employers’ and workers’ organizations. Moreover, the information on the process of consultation and dialogue in the drafting process and on the proposed opt-in clause for union member contributions to political funds was welcomed. The Government also referred to the complexity of the issues and the need to balance competing rights. Acknowledging the constructive attitude of the Government, the Employer members requested more information on: (1) the status of the proposed abolition of a dues check off across all public sector organizations; (2) the status of the proposed opt-in clause with limited time validity for union members’ contributions to political funds; (3) the status of the proposal to increase the powers of the certification authority, including information on how it may limit employers’ and workers’ organizations to organize their programme in accordance with their own rules. Finally, there was a lack of consensus in the Committee on the relationship between the Convention and the right to strike. The Employers’ group was of the view that the issue of strike action could be regulated at national level, in line with the Government group statement of February 2015. Therefore, the Government should not be requested to repeal the Act or amend its strike regulations. This position, which diverged from the views of the Committee of Experts should be reflected in the record of proceedings of the Conference Committee.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted the Government’s indication that secondary legislation was still under discussion and noted with interest the Government`s comments regarding the engagement of the social partners in this ongoing process.

Taking into account the discussion of the case, the Committee requested the Government to:

• - respect the rights of workers and employers organizations to establish and join organizations of their own choosing without previous authorization;
• - define the power of the certification authority in such a way that it will not be in contradiction with the provisions of Convention No. 87 and provide information regarding the status of the proposal to increase the powers of this Authority;
• - provide information regarding the status of the opt-in clause with limited time validity for union members’ contributions to political funds accompanied by reporting obligations; and
• - report to the Committee of Experts before its next session in November 2016.

The Government representative thanked the Committee for its careful and thorough examination. He took due note of the conclusions and undertook to report back to the Committee accordingly.