Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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 31 August and 4 September 2018, and the Government’s comments thereon, referring to the issues raised by the Committee below. The Committee notes with concern the TUC’s allegation of cases of surveillance of trade unions and trade unionists by the police, to which the Government has not replied, and therefore requests the Government to provide comments in this regard.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comment, the Committee had requested the Government to provide information on the measures taken to facilitate electronic balloting in the context of the new requirements set out in the Trade Union Act 2016. The Committee notes the TUC’s and the Government’s indication that the latter commissioned a review which was published in 2017 and whose main recommendations are: (i) e-balloting for industrial action ballots would only be capable of retaining public confidence if it were seen to be as secure and reliable as the current postal approach, particularly, it would need to be able to meet the required standard set out in section 54 of the Employment Rights Act 2004, that is, to ensure that those entitled to vote have an opportunity to do so; (ii) a test of e-balloting on non-statutory ballots is necessary as preliminary step and that this would potentially be the basis for the Secretary of State to decide the matter; (iii) e-balloting should be introduced for selected non-statutory ballots across England, Scotland and Wales with the aim of evaluating, among other things, the operation and effectiveness of voter verification; and (iv) the providers of any systems used to trial e-balloting must be able to demonstrate that they are able to withstand cyber-attack/hacking from those who wish to cause disruption. While noting the TUC’s allegation that to date the Government has not published a response to these recommendations, the Committee notes the Government’s indication that before responding to the recommendations it must, according to section 4(4) of the Trade Union Act, consult relevant organizations, including professionals from expert associations to seek their advice and recommendations. The Government is currently assessing the best means of obtaining this advice which will enable it to take properly informed and transparent decision about the risks associated with electronic balloting, and therefore whether such a system should be rolled out. The Committee requests the Government to provide updated and detailed information on the developments in this regard.

The Committee had previously requested the Government to review section 3 of the Trade Union Act with the social partners concerned and to take the necessary measures so that the requirement of support of 40 per cent of all workers for a strike ballot in important public services does not apply to education and transport services. The Committee notes that the TUC is concerned about the 40 per cent support threshold in the other four sectors to which it applies. The Committee recalls that it had previously observed that a number of the services set out in section 3 fall within the Committee’s understanding of essential services in the strict sense of the term or provided by public servants exercising authority in the name of the State, in which restrictions on industrial action are permissible. The Committee had noted, however, that a restriction on education services in particular would touch upon the entire primary and secondary education sector, and a restriction on all transport services would have a similarly sweeping and overbroad effect, and the Committee considers that such restriction is likely to severely impede the right of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference. The Committee further notes the TUC’s indication that the Government have made no serious attempt to amend section 3 of the Act. The Committee notes with regret that the Government reiterates its previous position on the need to maintain the 40 per cent threshold in education and transport services. The Government indicates that as the Trade Union Act balloting did not come into effect until 1 March 2017, it is, in any case, far too early for the Government to consider any amendments in this respect. The Committee recalls from its previous comments 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. 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 requirement of support of 40 per cent of all workers for a strike ballot does not apply to education and transport services.

In its previous comment, the Committee had noted 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. Accordingly, it had requested the Government and the TUC to provide information on the impact of the application of this notification in practice, including any complaints that may have been 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. The Committee notes the Government’s indication that where a picket supervisor’s contact details are passed to the police, safeguards are in place in the way the information is handled and that the confidentiality of personal details is protected by the Human Rights Act 1998 and Data Protection 2018, which are in conformity with the European Convention on Human Rights. Furthermore, the Government affirms that complaints regarding data handling can be brought to the Independent Police Complaints’ Commission, if the data was mishandled by the police, or to the Information Commissioner, who deals with complaints specific to data protection matters. Taking due note of this information, the Committee once again requests the Government to provide information on the application of this notification in practice, including any complaints that may have been made in relation to the handling of this information or its impact on lawful industrial action, and any information on the blacklisting of individuals engaged in lawful picketing.

In its previous comment, the Committee had expressed its concern that the Trade Union Act appear to significantly expand the investigatory and enforcement powers of the Certification Officer, including in cases where no application has been made and had invited the Government to review the impact of the expanded role of the Certification Officer in sections 16–20 of the Act 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 notes the Government’s reiteration that none of the Certification Officer reforms affects the workers’ freedom of association and their right to organize, to establish and to join a trade union, rather they enhance transparency for the benefit of union members and the wider public. The Committee notes, however, the TUC’s allegation that no steps have been taken to respond to the Committees’ invitation to review the powers of the Certification Officer with the social partners. The Committee invites once again the Government to review the impact of sections 16–20 of the Trade Union Act 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. It requests the Government to provide information on the outcome of the consultations.

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