Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee takes note of the observations of the Trades Union Congress (TUC) received on 1 September 2016 and the Government’s comments thereon, as well as the TUC’s further observations of 26 October 2016. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 concerning the application of the Convention. The Committee observes that the Conference Committee noted the Government’s indication that secondary legislation was still under discussion in relation to the matters raised and noted with interest the Government’s comments regarding the engagement of the social partners in this ongoing process. It further notes that the Conference 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 and to define the power of the certification authority in such a way that it would not be in contradiction with the provisions of the Convention.

The Committee notes generally from the Government’s statement to the Conference Committee and its report that it is confident that the provisions of the newly enacted Trade Union Act were justified and proportionate, and fully comply with its international obligations on trade union rights. The Act aimed to balance the rights of people who take industrial action with those who are affected by that action, and will modernize industrial relations, while promoting a more effective, collaborative approach to resolving industrial disputes.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls its previous comments in which it requested the Government to review the Trade Union Bill with the social partners concerned with a view to its modification so as to ensure that the heightened requirement of support of 40 per cent of all workers for a strike ballot in important public services (section 3 of the Bill), does not apply to education and transport services. The Committee notes that the TUC raises this point again and also states that it considers that the Committee’s views on a 50 per cent quorum are not fairly applied. On this latter point, the Committee does not share the assessment that has been made by the TUC concerning a country’s legislation which also referred to a 50 per cent quorum. Moreover, the Committee considers it important to point out that there is no hard and fast rule relating to the fixing of a reasonable quorum. It recalls in this respect its views in its 1994 General Survey that the conditions established in the legislation of different countries relating to strike ballots vary considerably and their compatibility with the Convention may also depend on factual elements such as the scattering or geographical isolation of work centres or the structure of collective bargaining (by enterprise or industry), all of which require an examination on a case-by-case basis (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 170.)

The Committee further notes the concerns raised by the TUC that the quorum established by the Trade Union Act operates in the context of outmoded balloting methods, which tend to diminish participation levels. The Committee notes the observations by the Government that the Trade Union Act requires it to commission a review of electronic balloting within six months of Royal Assent and that the chair of this review was announced on 3 November 2016. The Committee trusts that the review will yield results in the near future and requests the Government to provide information on the progress made and the measures taken to facilitate electronic balloting in the context of the new requirements set out in the Trade Union Act.

On the 40 per cent requirement, the Committee notes the Government’s statement to the Conference Committee that, in view of the widespread adverse consequences of industrial action in public services, this requirement was important to ensuring necessary democratic legitimacy and clear majority support in services extremely significant to the public. The Committee recalls from its previous comments, however, that a requirement of support of 40 per cent of all workers effectively means a requirement of 80 per cent voting support where only the 50 per cent participation quorum has been met. In light of the concerns expressed above in relation to the challenges attached to the current balloting method and with a view to ensuring the rights of workers’ organizations to organize their activities in full freedom, the Committee once again requests the Government to review section 3 of the Trade Union Act with the social partners concerned and take the necessary measures so that the heightened requirement of support of 40 per cent of all workers for a strike ballot does not apply to education and transport services.

As regards picketing, the Committee notes the TUC’s observations that the additional conditions for lawful picketing raise a number of concerns: the requirement to notify the police of the identity and contact details of activists may expose individuals to blacklisting; the union is automatically liable for any failure; and these requirements are discriminatory as they only affect pickets organized by trade unions but not those organized by other groups. The Committee notes the Government’s comments that it recognizes peaceful picketing as a legitimate and lawful activity; however, there is worrisome evidence of intimidation during picketing. The Government assures, however, that the police is bound by the Human Rights Act and Data Protection Act when handling picket supervisors’ contact details. The Committee requests the Government and the TUC to provide information on the impact of the application of this notification requirement in practice, including any complaints that may be made in relation to the handling of this information or its impact on lawful industrial action, and any information regarding the blacklisting of individuals engaged in lawful picketing.

As regards the expanded role of the Certification Officer in sections 16–20 of the Trade Union Act, the Committee notes that the TUC raises concerns that: there is no guarantee that the Certification Officer will be genuinely independent; the Certification Officers’ new powers will expose unions to the risk of constant harassment; the new responsibilities of investigation, adjudication and enforcement violate basic legal principles; and the introduction of a levy towards the cost of the Certification Officer. The Committee further notes the Government’s indication that the powers granted to the Certification Officer in the Act are comparable to those of many other regulators, many of which are also funded by a levy on the organizations that they regulate. The Government considers that this regulation is proportionate and entirely consistent with the Convention. Finally, the Government adds that the Certification Officer has always carried out her or his functions independently and will continue to so do, as provided in section 16 of the Act. The Government adds that, with the exception of the investigative powers in relation to a union’s financial affairs and membership records, the Certification Officer does not have any general authority to investigate the internal affairs of trade unions, except where a complaint from a trade union member has been made in relation to breaches of certain trade union rules or statutory obligations. Among others, the Act updated the investigatory powers of the Certification Officer in relation to political funds, union mergers and internal leadership elections and introduced a new financial penalty scheme. The precise amounts that may be imposed will be set by regulations upon which the Government would be consulting the unions and which would be subject to further parliamentary scrutiny. This is also the case with respect to the partial levy to fund the costs of the Certification Officer, while the Government will still fund some of the running costs. Finally, the Government indicates that the Act ensures that these new powers are used proportionately and appropriately, unions have the opportunity to make representations before any decision is made and there will continue to be a right of appeal. The Committee expresses its concern that the Act does appear to significantly expand the investigatory and enforcement powers of the Certification Officer, including in cases where no application has been made. The Committee invites the Government to review the impact of these provisions with the social partners concerned with a view to ensuring that workers’ and employers’ organizations can effectively exercise their rights to organize their administration and activities and formulate their programmes without interference from the public authorities.

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