Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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The Committee notes the observations made by the Trades Union Congress (TUC), received on 8 September and 20 October 2023, which refer to the issues examined by the Committee below.

Follow up to the conclusions of the Committee on the Application of Standards (111th Session of the International Labour Conference, June 2023)

The Committee notes the discussion on the application of the Convention held in the Conference Committee on the Application of Standards in June 2023. In its conclusions, the Conference Committee noted the centrality of social dialogue to freedom of association and thus to the meaningful application of the Convention. Taking into account the discussion of the case, the Conference Committee requested the Government to provide information to and facilitate the dialogue between and with the social partners with a view to: (i) report on the results of the 2015 Undercover Policing Inquiry and the 2018 TUC allegations regarding surveillance of trade unions and trade unionists; (ii) ensure that existing and prospective legislation is in conformity with the Convention; (iii) limit and define the investigatory powers of the Certification Officer to ensure that these powers do not interfere with the autonomy and functioning of workers’ and employers’ organizations; (iv) facilitate electronic balloting (e-balloting); and (v) improve consultation of the social partners on legislation of relevance to them. The Conference Committee invited the Government to avail itself of technical assistance of the ILO and requested the Government to provide information on progress made on all the above issues by 1 September 2023.

The Committee also notes that the Committee on Freedom of Association (CFA) has referred to it the legislative aspects of Case No. 3432 (404th Report of the CFA, October–November 2023, paragraphs 610–651). The Committee takes due note of the CFA recommendations and trusts that, as requested, the Government will provide information on the measures aimed at addressing the matters raised in this case and the outcome achieved with its next report.

Interim results of the 2015 Undercover Policing Inquiry. The Committee recalls that its previous comment concerned the allegations relating to police surveillance of trade unions and trade unionists submitted by the TUC in 2018 and the Government’s reply relating to the Undercover Policing Inquiry (UCPI) established in 2015. The Committee notes the Government’s latest indication that the interim report of the UCPI, dealing with historic matters, was published on 29 June. The Committee expects that a final report and any recommendations will be issued in the very near future and requests the Government to provide information in this regard.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. Electronic balloting. The Committee recalls that it has been requesting the Government to provide information on the measures taken to facilitate electronic balloting (e-balloting) for industrial action ballots for several years now, including in respect of the pilots for e-balloting recommended in the review conducted in 2017. The Committee regrets to note that the Government has not provided any information on the progress made in this regard while the TUC indicates that it remains forbidden for unions to use electronic balloting in statutory ballots such as for union leadership roles or for industrial action and provides an example where this has caused a problem due to a narrowly missed 50 per cent turnout threshold required in a ballot for industrial action when the vote coincided with disruption to postal services. Along with the Conference Committee, the Committee firmly urges the Government to take measures to facilitate electronic balloting without further delay and to provide information on the steps taken in this regard with its next report.

Minimum services legislation. The Committee takes note of the detailed discussion in the Conference Committee in relation to the minimum services Bill. The Committee notes the Government’s indication that the Bill was passed by Parliament and has received Royal assent (Strikes (Minimum Service Levels) Act 2023, hereinafter the Strikes Act). The Government explains that, for the remainder of this year, it will be focused on finalizing regulations setting out the detail of minimum service levels in a number of priority areas while seeking to ensure that the implementation of the legislation is in conformity with all its international obligations. The Government adds that it will fully engage with UK social partners, unions and employer groups during any review of the Trade Union Act to ensure that it takes account of any evidence they wish to bring to its attention. The Committee notes however the very detailed views of the TUC in relation to this legislation, which in the TUC’s view requires minimum service levels that are unacceptable in addition to the highly restrictive anti-strike laws already in place. In this respect, the TUC refers to the fact that the list of sectors in which minimum service can be imposed are largely the same as those created under the Trade Union Act 2016 which has already been commented upon by the Committee. In addition, the Strikes Act 2023 defines the education sector even more extensively. The TUC alleges that the Act: i) grants wide power to the Secretary of State to determine the scope of these services without any guidance from Parliament; ii) authorizes employers to issue work notices to a trade union in relation to a strike where minimum service regulations apply and; iii) imposes a duty on trade unions to take reasonable steps to ensure that union members who are identified in a work notice comply with its terms, all in a manner contrary to the Convention. The Committee notes that some of the services set out in the Act, may be considered essential services in the strict sense of the term where industrial action may be restricted or even prohibited. It recalls, however, that “education services” and “transport services”, also included in the list, have been the subject of concerns it expressed in a previous Observation (2019) within the framework of the restrictions on strike ballots in the 2016 Trade Union Act.

The Committee observes that the Secretary of State is in the process of drafting the regulations for the Strikes Act adoption. According to the TUC, the consultations conducted by the Government on the introduction of minimum service levels in the ambulance service, fire service, passenger rail and border security were extremely light on detail, giving no suggestion of how the intended minimum service level would be structured or applied and the likely level of staffing required. As regards the work notices to be issued by the employer, the TUC alleges that while there is a duty to consult the trade union about the number of people to be identified and the work to be specified in the work notice, there is no obligation to seek an agreement with the trade union on minimum service levels, or to introduce a work notice only after an agreement has been secured. A draft non-statutory guide for employers, trade unions and workers issued by the government on 24 August 2023 stated clearly that the employer does not need to agree with the union on the number of workers and the work within the work notice as part of this consultation. This is particularly concerning as the Act expressly withdraws legal protection for unfair dismissal in cases of non-compliance with the work order and provides that the trade union must take “reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice”. Finally, the TUC alleges that the government published its consultation paper on a draft statutory code on “reasonable steps” required from the union when a work notice has been issued, over-reaching the legislation. The TUC contends that the consultation paper seeks to place a series of additional requirements on trade unions, which could have wholly disproportionate consequences such as an injunction for the entire strike, significant damages, loss of protection against unfair dismissal for all participating workers and possible legal liability for the trade union.

The Committee notes these developments with serious concern. The Committee is especially concerned by the potentially wide-spread application of a series of new restrictions on workers and their organizations when considering industrial action in the transport and education sectors, accompanied by far-reaching consequences on them. While recalling that in its previous comments it had indicated that recourse might be had to negotiated minimum services for transport and education, as appropriate, the Committee must nevertheless recall that a minimum service should meet at least two requirements: (i) it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. Moreover, any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties. (see the 2012 General Survey on the fundamental Conventions, paragraphs 137 and 138). The Committee observes that in its current state the Strikes Act does not assure any of these elements. The Committee expects that, in preparing its regulations and other guidance, including codes of practice, the Government will ensure that any minimum services imposed on industrial action in the transport and education sectors are indeed minimum, ensure the participation of the social partners in their determination, and where no agreement is reached, ensure that they are determined by an independent body which has the confidence of the parties. The Committee requests the Government to provide detailed information on all developments to ensure that the legislation is in full conformity with the Convention and on the steps taken to ensure that the social partners are fully consulted throughout the process.

Requirement for strike ballot. In its previous comments the Committee had 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 per cent of all workers for strike ballot did not apply to the education and transport sectors. The Committee takes due note of the Government’s indication that it intends to fully engage with UK social partners, unions and employer groups during any review of the Trade Union Act. As regards the centrality of social dialogue referred to by the Committee on the Application of Standards, the Government states that, while there are already regular meetings, at both Ministerial and official level, with trade unions and bodies representing employers, it accepts that there may be some benefit in putting these on a more structured footing and also ensuring that there are more opportunities for genuinely tripartite discussion. The Governments states that it will discuss possible approaches with its social partners over the coming months with a view to updating the Conference Committee next year on how it is responding to the feedback in this area. The Committee trusts that these discussions will give rise to improved consultations with the social partners, including with respect to section 3 of the Trade Union Act. Noting that the education and transport sectors are now restricted both by this section’s requirements and those to be regulated in relation to minimum services, the Committee urges the Government to take the necessary measures without delay to ensure that the support of 40 per cent of all workers is no longer required for a strike ballot in these services.

Blacklisting. 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 or blacklisting of individuals engaged in lawful picketing. While noting that the Government reiterates its previous information in this regard, the Committee expresses its concern at the additional allegations of the potential impact of the Strike Act further weakening protection against blacklisting. The Committee once again requests 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 or lawful picketing, including any complaints made in this regard, as well as any plans for improving protection.

The role of the Certification officer. 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 it is committed to review the Trade Union Act 2016 and associated secondary legislation and will consider this matter more fully as part of this review. The Committee recalls the TUC’s concerns that the changes to the Certification Officer’s powers implemented in 2022 grant the Certification Officer undue discretion while the threshold for the exercise of the powers is extremely low. In addition, the scope of these powers is uncertain and unduly high financial penalties are allowed to be imposed for statutory breaches. While the TUC informs that the Certification Officer said she had not found any reason to use these new powers over the last year, the TUC maintains that they remain a threat to trade union rights. The Committee therefore once again requests the Government to provide a detailed reply to the TUC observations and provide information on any use by the Certification Officer of its new investigatory powers and financial penalties imposed.

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

[The Government is asked to reply in full to the present comments in 2024.]