Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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 notes the observations made by the Trades Union Confederation (TUC), received on 31 August 2022, which refer to the issues examined by the Committee below.

The Committee had previously requested the Government to comment on the allegations relating to police surveillance of trade unions and trade unionists submitted by the TUC in 2018. The Committee notes the Government’s indications that the exercise of covert investigatory powers under the Investigatory Powers Act, 2016 (IPA) and the Regulation of Investigatory Powers Act, 2000 (RIPA) are subject to numerous stringent safeguards and robust independent oversight, and are carried out only if they are necessary for specific statutory grounds, proportionate to the outcome sought, and the information required cannot be reasonably obtained through less intrusive means. The Government points out that it would therefore never be necessary and proportionate to use investigatory powers merely to interfere with legitimate trade union activity. The Government adds that the RIPA grants victims of improper exercise of covert investigatory powers recourse to the Investigatory Powers Tribunal (IPT) for redress. The Government further informs that there is an Investigatory Powers Commissioner who exercises independent oversight over investigatory powers and has the mandate to audit, inspect and report the use of such powers by the authorities. The Committee notesthe Government’s indication that an Undercover Policing Inquiry was established in 2015 to inquire into and report on undercover police operations conducted in England and Wales since 1968 and their effects upon individuals in particular and the public in general. A number of trades unions and trades unions members have been granted core participant status in the Inquiry. The Committee expects that the inquiry will be concluded in the very near future and requests the Government to provide information on any conclusions arrived at in relation to the abovementioned allegations.

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 (eballoting) for industrial action ballots. The Committee notes both the TUC’s and the Government’s indications that the review of eballoting conducted in 2017 resulted in certain recommendations, including pilots of eballoting in non-statutory areas as a first step. According to the Government, round table consultations on the recommendations were held both with experts and with trade unions. The Government indicates that details will be provided after the finalization of its consideration of the recommendations. The Committee trusts that this work will be finalized without further delay and that the Government will provide information thereon in its next report.

The Committee had also requested the Government to review section 3 of the Trade Union Act, 2016 with the social partners to ensure that the requirement of support by 40 percent of all workers for strike ballot did not apply to the education and transport sectors. The Committee notes the Government’s indication that the Act, including the ballot thresholds, will be reviewed with the social partners in the future. The TUC indicates that the imposition of the ballot threshold of 40 percent to the two abovementioned sectors imposes a requirement of 80 per cent voting support if only 50 percent of the members vote and poses a significant barrier to union members exercising their right to strike. The Committee urges the Government to review section 3 of the Trade Union Act with the social partners without further delay in order to ensure that the support of 40 percent of all workers is not required for a strike ballot in the education and transport services.

In its previous comment, the Committee had requested the Government to provide information on the practice of notifying the police of the identity of activists; the details of any complaints regarding the handling of this information or its impact on lawful industrial action; and information on the blacklisting of individuals engaged in lawful picketing. The Committee notes the Government’s indication that the Trade Union Act, including provisions on picketing requirements, will be reviewed in the future, and the Government will take into consideration the comments of the Committee. The Government indicates that it does not have any information on the blacklisting of individuals engaged in lawful picketing but adds that claims against blacklisting could be pursued before the Employment Tribunal within three months of the commission of the offence, or longer at the discretion of the Tribunal. The Government adds that the usage of personal data is protected by the Data Protection Act, 2018, with breaches of the Act being investigated by the Information Commissioners Office. The Committee takes note of the TUC allegation that additional restrictions are being planned. The Committee once again requests the Government to provide information on the application of this notification in practice, including any complaints 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. It also requests the Government to provide information on the additional restrictions planned, if any.

The Committee had further requested the Government to review the impact of sections 16-20 of the Trade Union Act with the social partners to ensure that the expansion of the role of the Certification officer does not interfere with the rights of workers’ and employers’ organizations under Article 3 of the Convention. The Committee notes the Government’s indication that the Certification officer reforms were implemented in April 2022, after engaging with the social partners in June and July 2021, in addition to the 2017 consultations on the levy. The Government indicates that no consultation was needed in relation to the proposed new investigatory powers since these were contained in the Trade Union Act. While noting the Government’s indication that the new legislation would bring the powers of the Certification Officer in line with other regulators and provide confidence both to union members and the wider public, the Committee notes the TUC’s indication that the changes would render trade unions vulnerable to interference by non-members including hostile employers or campaign groups, particularly during legitimate industrial disputes. The TUC adds that the consultation in 2017 was a general consultation inviting input from the general public and not a specific review with the social partners. The Committee notes the TUC’s concerns that the changes obstruct and hinder trade unions in their core functions, since they grant the Certification Officer undue discretion in exercising the powers while the threshold for the exercise of the powers is extremely low and their scope is uncertain. The changes vest in the Certification Officer the power to act upon a third-party complaint, which, according to the TUC, could create a risk of interference in the functioning of trade unions; and to demand documents with sensitive information which are protected by data protection laws. The TUC further indicates that the changes allow unduly high financial penalties to be imposed for statutory breaches, and that there is no ceiling imposed on the newly introduced levy which requires unions to cover the majority of the costs of the Certification Officer. The Committee requests the Government to provide its comments on the TUC observations, as well as detailed information on the reform implemented with regard to the Certification Officer’s new investigatory powers, financial penalties that may be imposed, the amount of any penalties that have been imposed since April 2022, and the ceiling on the levy introduced.

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