Informe definitivo - Informe núm. 294, Junio 1994

Caso núm. 1730 (Reino Unido de Gran Bretaña e Irlanda del Norte) - Fecha de presentación de la queja:: 27-AGO-93 - Cerrado

1. 162. The Trades Union Congress (TUC) presented a complaint against the Government of the United Kingdom in a communication of 27 August 1993, alleging violations of Conventions Nos. 87 and 98. The Government sent its observations on the case by a communication dated 8 March 1994.
2. 163. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 164. In its communication of 27 August 1993, the complainant organization submits that the Trade Union Reform and Employment Rights Act, 1993 ("The Act"), violates Conventions Nos. 87 and 98. The complainant submits that section 13 of the Act in particular discriminates against trade union members and puts them at a disadvantage in their employment, and that the Government, through this piece of legislation, has taken strong action to undermine collective bargaining.
2. 165. Section 13 amended section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 which made it unlawful for an employer to take action short of dismissal against an individual with the purpose of preventing or deterring him or her from being, or seeking to become, a member of an independent trade union, or penalizing him or her for doing so. Measures such as denying a pay increase to employees who preferred to have their pay and conditions determined through collective bargaining and refused an employer's offer to accept an individual personal contract were treated as unlawful discrimination in the courts. This was confirmed in recent decisions of the Court of Appeal in Wilson v. Associated Newspapers and Palmer v. Associated British Ports. In the Wilson case the owners of the Daily Mail newspaper decided to withdraw recognition from the National Union of Journalists and to offer individual contracts to their employees instead of a collective agreement. The employers made it clear that only employees who signed a personal contract would receive a 4.5 per cent pay increase. The aim was similar in the Associated British Ports case.
3. 166. In the Wilson case, the decision of the Appeal Court came on 30 April. In open conflict with normal Parliamentary practice the Government said on 6 May that, at the third reading (the eighth and virtually final step of the legislative procedure) of the Trade Union Reform and Employment Rights Bill, it would introduce an amendment related to the decision. There was no indication in the White Paper published before the Bill that the Government would seek to legislate in this way and no consultation with the TUC or trade unions, which would have informed the Parliamentary discussion. The consequence is that the amendment was published at the latest possible opportunity on Thursday, 20 May, and passed on the following Monday, 24 May. Far-reaching legislative proposals escaped proper democratic scrutiny and a unanimous Court of Appeal decision was overruled without due consideration, even before the full terms of the judgement were available, though the Government had had opportunity since 1979 to propose changes to the law.
4. 167. The Government has denied that the amendment was intended to undermine trade unions by saying that its purpose was to enable employers to offer incentives to their employees to avoid collective bargaining. The industrial tribunal which first heard the case found that the employers' purpose was to so reduce the power of the union as to negate it totally. The Court of Appeal recognized that the employers' purpose was not in doubt - it was to end collective bargaining - and Lord Justice Dillon, a most senior judge, pointed out that that was the professed aim of the employers and that collective bargaining was not intended to be limited to pay. The tribunal decided that the employers were fully aware that by depriving the union of any function in the workplace (save on health and safety) they were effectively rendering the union powerless and thus membership pointless.
5. 168. The rapid action of the Government to overrule a judgement in a case brought under a section of the 1992 Act dealing with deterring an individual from union membership gives the lie to the statement by the Government that it intends that discrimination against individuals on grounds of trade union membership would remain unlawful. The whole purpose of the amendment in section 13 is that from now on industrial tribunals will be forbidden from holding an employer to have acted unlawfully if the consequence of the employer's action would be judged by that tribunal as being aimed at deterring an employee from being a trade union member. In case there was any remaining doubt about the Government's intention, its spokesperson in the House of Lords specifically rejected several proposals for amendment of section 13 which would have retained protection for individuals against anti-union discrimination, in particular a proposal that discrimination would be lawful provided that the evidence showed that the employer's principal purpose was not to discriminate against employees who were members of an independent union.
6. 169. The Government also said that one of its purposes in introducing the amendment was to clear up confusion in the law. The account given above demonstrates not that the law was unclear, but that it was all too clear for the Government's liking: they had the law changed in order to remove protection against discrimination on grounds of trade union membership. It will enable, and encourage, employers to tell trade union members that they may have a pay increase only if they sign away their trade union rights.
7. 170. The Government denies this and the Secretary of State for Employment made a distinction in the House of Commons between discrimination short of dismissal against those who seek to exercise the right to trade union membership, which he said would remain unlawful, and discrimination against employees who want to have protection through collective bargaining. The TUC believes that access to collective bargaining is a crucial element of the advantages to working people of trade union membership and that in practice the attempt to draw a distinction fails totally. This was in effect the decision of the Court of Appeal.
8. 171. Even if the distinction did have meaning the Government would still be violating Convention No. 98, Article 4 of which puts an obligation on States to encourage and promote the full development and use of machinery for voluntary negotiation between employers and trade unions. A further indication of the Government's attitude to collective bargaining and to the obligations on it arising from Convention No. 98 is provided by section 43 of the Act which removes from the functions of the Advisory Conciliation and Arbitration Service (ACAS) a requirement to encourage the extension, development and reform of collective bargaining. The legislation, however, merely openly states what has been the approach of the Government since 1979. The plain advice it has given to employers is to follow its practice and do all in their power to weaken unions, to avoid dealing with unions, and to terminate collective bargaining arrangements. The complainant points out that the ILO supervisory bodies, on many other occasions since 1984, have found British law and practice to be incompatible with ILO Conventions, particularly Conventions Nos. 87 and 98.

B. The Government's reply

1. 172. In its communication of 8 March 1994, the Government states in general that its employment law is entirely consistent with the requirements of ILO Conventions. United Kingdom legislation has long protected all employees against discrimination by their employer on grounds of union membership. It continues to do so, and thereby to satisfy the obligation to provide a right of freedom to associate appropriate to comply with ratified ILO Conventions. Indeed, the 1993 Trade Union Reform and Employment Rights Act made a particular change to the law concerning selection for redundancy which clearly enhanced this right. However, like ILO supervisory bodies, including the Committee on Freedom of Association, United Kingdom law has always recognized a distinction between such protection, and the quite separate issue of whether a union should be entitled to insist that an employer bargains (or continues to bargain) with it over employees' terms and conditions of employment. Collective bargaining has to be voluntary, and agreed by both the employer(s) and union(s) concerned. The Government then replies specifically to the complaint under two headings: protection of workers against prejudicial acts on grounds of union membership, and promotion of development and utilization of voluntary negotiation.
2. 173. On the first issue, the Government states that United Kingdom legislation provides wide-ranging, and effective, protection against discrimination in employment on grounds of union membership. That protection includes protection against dismissal, or action short of dismissal, on grounds relating to trade union membership in the Trade Union and Labour Relations (Consolidation) Act 1992, as amended. In particular, section 146 of the 1992 Act gives an employee "the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of: (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalizing him from doing so; (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalizing him for doing so." An employee who believes that his employer has acted unlawfully in this way may complain to an industrial tribunal and, if the complaint is upheld, obtain a remedy which can include "such compensation as ... (the tribunal) considers appropriate".
3. 174. The change made by section 13 of the Trade Union Reform and Employment Rights Act 1993 was to clarify the law to ensure that it could not be used against employers who take reasonable action to further a change in their negotiating arrangements. The Government believes that these changes are consistent with the protections required by Article 1.2(b) of ILO Convention No. 98.
4. 175. The Government stresses the illogicality of suggesting that action taken to change negotiating arrangements with a trade union amounts to action taken to deter workers from, or prejudice them for being, union members. Such a suggestion shows a fundamental confusion between, on the one hand, the right of workers to belong to a trade union and, on the other, the separate question of whether the trade union to which they belong is given collective representational rights by their employer.
5. 176. When a worker joins a trade union, the union may or may not have been granted such collective representational rights by the worker's employer. If it does not then have them, but is later granted them, the worker will secure the benefit of collective representation through the decision of the employer. It follows, necessarily, that the existence of collective representation results from that decision (i.e. from the employer's decision), and not from the worker's membership of the union. By the same reasoning it follows, indeed has to follow, that if the employer withdraws recognition from the union, or takes steps to encourage workers to cease being collectively represented by it, that act does not prejudice the worker by reason of his or her union membership. The worker is exactly as free to belong to the union as would be the case if the union had never been granted collective representational rights in the first place.
6. 177. It may be that some workers will choose to leave a trade union if they cease to be collectively represented by it. It is fallacious to reason, however, that because some workers may behave in that way, the employer's purpose in withdrawing recognition or in taking steps to encourage workers not to be collectively represented is necessarily to deter employees from, or prejudice them for being, union members. There are two reasons: first, the employer's immediate obvious purpose in these circumstances is to change negotiating arrangements, not to bring about the remote and uncertain result that workers may leave the union; secondly - and more importantly - it is for each individual employee to choose whether to continue in union membership or not. Given that this choice is an entirely free one (a position which United Kingdom law secures through the protections it contains against unfair dismissal on grounds relating to union membership and through section 146 of the 1992 Act itself), it cannot be said that the actions of the employer which relate to the presence or otherwise of collective representation deter union membership or otherwise prejudice workers by reason of their membership. The purpose of Article 1.2(b) of Convention No. 98 is to protect individual workers, not to prevent employers from taking steps to change their arrangements for collective representation.
7. 178. In addition, the complainants overlook the fact that the change in the law brought about by section 13 of the 1993 Act will equally protect employers who seek to change their negotiating arrangements to bring about collective representation, or to bring about a change from collective representation by one union to collective representation by another. The legal effect of the change is, therefore, neutral. Its effect is neither to "attack trade union membership rights", nor to assist only employers wishing to terminate arrangements for collective representation, but to secure that section 146 of the 1992 Act does not operate as an undesirable fetter on the ability of employers to change their negotiating arrangements.
8. 179. Turning to the particular points and arguments made by the complainants, the Government submits that:
   • (a) section 13 of the 1993 Act was made necessary by the Court of Appeal judgements in Wilson v. Associated Newspapers and Palmer v. Associated British Ports, which contradicted the previously widely-held interpretation of section 146 of the 1992 Act that nothing in the section limited an employer's actions so long as the employer's purpose in taking the action was not to prevent or deter union membership. As indicated above, the Government has not changed the law in order to remove protection against discrimination on grounds of trade union membership, but to ensure that a provision which protects against discrimination on that ground does not have the unintended side-effect of preventing employers from changing their arrangements for collective representation;
   • (b) the amendment is designed to enable employers to offer incentives, if they wish, to persuade workers either to give up collective representation, or to accept it, but had no bearing on union membership rights;
   • (c) if there is really no valid distinction between union membership rights and access to collective bargaining, it would follow that every worker who joined a trade union should have the "right" to collective representation. The TUC itself does not believe this because, in practice, that view is untenable. It would mean that the employer had to negotiate with every union which had one of his workers in membership - a view to which the TUC has never subscribed. Far from the distinction between access to collective bargaining and trade union membership rights being one which "fails totally", it is a distinction recognized by the TUC itself, and acknowledged by all serious commentators in the United Kingdom, regardless of their political affiliation.
9. 180. On the question of the meaning of section 146 of the 1992 Act prior to the Court of Appeal judgements, it should be noted that:
   • (a) during Parliamentary debate on the introduction of the original law in this area (1975, under a Labour government) it was made clear, by the government spokesman of the day, that this law was intended to deal "... with individual rights of employees, not collective bargaining issues"; and
   • (b) the Employment Appeal Tribunal, in its judgement on the Wilson and Palmer cases, came to a quite different interpretation of the law from the Court of Appeal, holding that the employers' action in those cases did not constitute an infringement of the law on action short of dismissal.
10. 181. Following the Court of Appeal judgements, it was therefore imperative that the Government took the first practicable opportunity to seek changes to the law to restore its effect to the position that had been understood to apply before the judgements of the Court of Appeal. This meant introducing the necessary amendments at a relatively late stage in the passage of the 1993 Act, but special Parliamentary procedures were adopted to enable extended debate on them to take place. Several amendments to the Government amendment were proposed by the Opposition, but were unacceptable to the Government because they detracted from the effectiveness of the main amendment. The effect of the particular amendment to which the complaint refers would have been to require a tribunal, when presented with more than one possible purpose for an employer's action, to decide which of these was the "principal purpose" before proceeding. To have accepted that amendment would have meant confusing tribunals to the extent that it would have offered no solution to the problem which the government amendment addressed - that is, the need to clarify the fact that when an employer genuinely takes action to seek to persuade employees to accept different representational or negotiating arrangements that action should not be held to have been taken for the purpose of deterring union membership. Industrial tribunals, which handle complaints under section 146 of the 1992 Act at first instance, are well able to make up their own minds, on the facts of any particular case, what an employer's purpose was. It also follows from general principles that where there is strong evidence of one purpose and some, but only a small, amount of evidence of another, a tribunal will recognize that the former evidence determines the purpose of the employer - and not the latter.
11. 182. The Government concludes on this aspect of the case that the complaint shows a fundamental confusion between the question of whether a union has the right to compel an employer to enter into, or maintain, collective bargaining or representational arrangements, and whether workers have rights to protection against discriminatory acts on grounds of union membership. On the first question, the Government notes that the Committee itself has repeatedly made clear that Convention No. 98 does not place a duty on a government to enforce collective bargaining by compulsory means (13th Report, Case No. 96; 75th Report, Case No. 334; 76th Report, Case No. 292; 138th Report, Case No. 728). It follows that the complainants must be incorrect, then, to assert that there is no meaningful distinction between access to collective bargaining and to union membership rights. Article 1.2(b) of Convention No. 98 is clearly intended to protect the latter, and not to oblige member States to compel employers to enter into, or maintain, particular arrangements for collective bargaining or collective representation.
12. 183. Further evidence to the distinction between union membership rights and access to collective bargaining and representation is the fact that it is estimated that there are around 1 million employees in the UK who choose to belong to a union - even though their employer does not have collective bargaining arrangements with that union. They obviously have other reasons for membership - for example, a wish to have the benefit of the union's financial, training, legal or individual representation services.
13. 184. It is also true that many workers are covered by collective bargaining or representational arrangements with their employer who are not members of the trade union in question. This occurs where, in practice, the terms and conditions of employment of all those of a particular grade or category of worker are settled by negotiation with a recognized trade union regardless of whether the individuals in that category are union members or not. The fact that this is possible (indeed, is common) again shows, beyond real argument, that there is a distinction between trade union membership rights and access to collective bargaining or representation. A worker in this position is free to join the union and so acquire the rights associated with union membership, whether or not the union continues to enjoy collective bargaining or representational rights.
14. 185. In summary, the Government believes that this particular aspect of the complaint should be rejected because it: (i) gives a misleading account of the true effects of the changes to the law made by section 13 of the 1993 Act; and (ii) wrongly asserts that no meaningful distinction can be drawn between the rights of the individual worker not to be deterred from membership of, or prejudiced for belonging to, a trade union, and the right of the union to be recognized for collective bargaining or representational purposes.
15. 186. On the alleged violation of Article 4 of Convention No. 98, the Government recalls that collective bargaining to settle terms and conditions of employment has long been a common feature of United Kingdom industrial relations. Under well-established common-law principles, terms and conditions agreed in collective bargaining can be incorporated into the binding individual contract of employment between workers and their employer - even though the workers themselves may not have been directly involved in the negotiation of the relevant agreement.
16. 187. The Government further submits that in the United Kingdom, collective bargaining has been, and continues to be, an option available to employers and to organizations of employers and workers, who freely wish to establish terms and conditions of employment by means of agreements reached through such negotiation. From the opinions of the Committee itself, it is clear that nothing in Article 4 of Convention No. 98 is to be taken to require legislation which would have the effect of forcing unwilling employers to bargain with unions to establish terms and conditions of employment for workers.
17. 188. As far as the provisions in section 13 of the 1993 Act are concerned, these could be as significant for the purposes of enabling the promotion and extension of collective bargaining as for any other purpose. Their effects ensure, for example, that an employer is free to offer inducements or incentives to employees in return for their consenting to any change in their relationship with the employer - in particular in respect of the way in which terms and conditions are to be settled. The provisions give an employer equal freedom to use such inducements or incentives not only to persuade workers to agree to individual settlement of terms and conditions of employment, but also to persuade workers covered by one collective agreement to be covered by another, or to have their terms and conditions settled by an agreement where this has not previously been the case. Indeed, without the changes made by section 13 of the 1993 Act, the novel interpretation of the law by the Court of Appeal in the Wilson and Palmer cases might have made it impossible for an employer to seek to develop or promote collective bargaining by such means.
18. 189. As regards the provisions in section 43 of the 1993 Act, the Act retains ACAS's general duty to promote the improvement of industrial relations, and this of course includes the improvement of collective bargaining machinery, where appropriate. ACAS therefore remains free to undertake the function of promoting the development and utilization of collective bargaining machinery in those circumstances where parties voluntarily wish to pursue this approach. Furthermore, ACAS's own publicity following the Trade Union Reform and Employment Rights Act confirms its enduring role in this area. In October 1993 ACAS produced a pamphlet entitled "Promoting the Improvement of Industrial Relations" which states that "recent legislative changes to (ACAS's) terms of reference do not affect the availability of ACAS's advice and conciliation on employment and workplace issues, including collective bargaining and trade union recognition". A copy of the pamphlet is attached to the Government's reply.
19. 190. Collective bargaining continues to be a feature of the establishment of terms and conditions of employment for the civil service, and for much of the public sector, and it is not possible to identify the source of the reference on which the TUC letter bases its statement that the Government has "given advice to employers ... to follow its practice and do all in their power to weaken unions, to avoid dealing with unions, and to terminate collective bargaining arrangements".
20. 191. In summary, the Government believes that this particular aspect of the complaint should be rejected by the Committee on Freedom of Association because it: (i) fails to acknowledge that the provisions in section 13 of the 1993 Act afford employers the necessary freedom to go about making changes to bargaining arrangements which could establish or extend collective bargaining; (ii) implies an exaggerated practical effect of the changes to ACAS's terms of reference made by section 43 of the 1993 Act; and (iii) otherwise rests on unsubstantiated and misleading assertions about government activities and policies.

C. The Committee's conclusions

1. 192. The Committee notes that the allegations in this case relate to the effect of section 13 of the Trade Union Reform and Employment Rights Act, 1993 (Chapter 19), which amended the provisions of the Trade Union and Labour Relations (Consolidation) Act, 1992 (Chapter 52) dealing with the protection granted to workers against action short of dismissal on grounds related to union membership or activities. The text of the relevant provisions is attached as Annex I.
2. 193. As these amendments were introduced in reaction to the unanimous judgement of the Court of Appeal in Wilson v. Associated Newspapers Ltd. and Palmer v. Associated British Ports, the Committee deems it necessary briefly to describe these cases and the decision of the Court, as well as the circumstances of the introduction of the amendment.
3. 194. The Committee first notes that the amendment in question was introduced with unusual alacrity at the Third Reading, merely five working days after the judgement of the Court of Appeal. Whilst appreciating the Government's wish "to take the first practicable opportunity to seek changes to the law", the Committee concludes that the hasty introduction of this amendment at such a late stage would unavoidably prevent serious consideration and discussion at the various stages of the regular legislative process. The Committee recalls in this respect that the principle of consultation and cooperation between public authorities and employers' and workers' organizations at the industrial and national levels is one to which importance should be attached, particularly where the authorities consider adopting legislative amendments which may profoundly and durably affect the role of these organizations. It invites the Government fully to take this principle into account in the future.
4. 195. On the merits of the case, the Committee does not wish to enter into somewhat theoretical considerations on the intended or perceived purpose underlying the amendment, but would rather concentrate on the effect of the latter in relation to the circumstances of the Palmer and Wilson cases.
5. 196. In Palmer, the workers were members of an independent union recognized by the employer for collective bargaining purposes. In February 1991, the employer offered personal contracts to manual staff in lieu of the former process of collective bargaining with the union. No one was compelled to accept the offer. Those who accepted it gave up the "right" to union representation which they had under the agreement with the union, and were granted a significant pay raise; those who did not accept the offer continued to be employed under their previous contracts with collective bargaining through the union as before, but the pay increment was not offered or paid to them. Some of the employees concerned complained to the competent Industrial Tribunal that this action violated section 23(1)(a) of the Act (now section 146(1)(a)). The Tribunal upheld their claim; the decision was reversed by the Employment Appeal Tribunal, and then re-established by the Court of Appeal.
6. 197. In Wilson, the National Union of Journalists (NUJ) had been recognized by the employer since 1912 for the purposes of collective bargaining over wages and conditions of service. There was in existence a house agreement updated by collective bargaining and which, as usual, was not legally enforceable; the enforceable individual contracts of the journalists incorporated the relevant provisions of the house agreement, including salary and other terms and conditions of employment. In 1990, the employer de-recognized the NUJ for all purposes (there is no dispute that the employer was legally entitled to de-recognize the union and to terminate the house agreement). The termination of the house agreement meant that it was necessary as a practical matter for the employers to make new contracts with the employees to cover the subjects previously dealt with through collective bargaining. Besides the new contracts, the employer offered a 4.5 per cent pay increase, backdated to 1 October 1989, to all journalists who signed their new contracts before 1 January 1990 (a date later extended); however, those who were not prepared to sign the new contracts would not get the pay raise. Mr. Wilson filed a complaint to the Industrial Tribunal which upheld his claim; the decision was reversed by the Employment Appeal Tribunal, and then restored by the Court of Appeal.
7. 198. So, the Court of Appeal had effectively interpreted section 146(1)(a) as meaning that an employer could not offer preferential pay rates to employees accepting individual contracts and relinquishing contractual terms agreed upon through collective bargaining. The Government immediately introduced statutory amendments which it says were necessary to clarify the situation and restore the law to the position that had been understood to apply before the Court's decision. The complainants submit that this amendment is clearly designed to overturn the Court's judgement and change the law in order to remove protection against discrimination on grounds of trade union membership.
8. 199. The Committee notes that section 13 of the 1993 Act directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the criterion mentioned in section 13(3)(a) - i.e. employer's purpose to further a change in his relationship with his employees - unless the tribunal considers that the action was such as no reasonable employer would take. In the Committee's opinion, beyond the rather complicated rationale and wording of the amendment, that section therefore limits considerably the margin of appreciation of a tribunal in examining whether a given employer's action does prevent or deter a worker from being or becoming a member of a trade union. This is due in particular to the fact that the wording "there is evidence that the employer's purpose was to further a change in his relationship with all or any class of his employees" is so wide and vague that such evidence could be adduced in virtually any situation, along with the other evidence mentioned in section 13(3)(b); in such case, the tribunal would then be practically compelled to reject a victimization complaint, save the extraordinary circumstances envisaged in section 13(3) in fine.
9. 200. In the particular circumstances of the Palmer and Wison cases, it is clear that, by proposing a substantial pay raise to the workers who accepted individual contracts and gave up collective representation, and refusing it to those workers who did not, the employers were offering a sweetener which removed much of the interest of being a trade union member. In Palmer, the Court of Appeal concluded in that respect: "I have no doubt that the purpose of Associated British Ports in offering extra pay to those employees who signed the new personal contracts was to persuade the employees to abandon union representation by making personal contracts so attractive that ... the union would "wither on the vine" (page 8).
10. 201. As regards the distinction between membership of the union on the one hand, and resorting to the services of a union to negotiate the terms of employment on the other, the Committee notes that even the Employment Appeal Tribunal (which, it must be remembered, dismissed the workers' complaints) rejected it:
    • We find ourselves unconvinced of that distinction. In our judgement the activities of a trade union officer in negotiating and elucidating terms of employment is ... the outward and visible manifestation of trade union membership. It is an incident of union membership which is, if not the primary one, at any rate a very important one and we see no genuine distinction between membership of a union on the one hand, and making use of essential services of a union on the other.
    • Were it not so, the scope of section 58(1)(a) (now 146(1)(a)) would be reduced almost to vanishing point since it would only be just the fact that a person was a member of a union without regard to the consequences of that membership that would be the subject-matter of that statutory provision, and it seems to us that to construe that paragraph so narrowly would really be to emasculate the provision altogether (quoted as "unquestionably correct" in the Court of Appeal's decision, page 5).
11. 202. Coming back to the amendment in dispute, inasmuch as its effect is indeed to prevent tribunals from redressing situations such as those in the Wilson and Palmer cases, where employees who refused to give up the right to collective negotiation were deprived of a pay raise, the Committee considers that that amendment raises significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1(2)(b) of Convention No. 98. In addition, such a provision can hardly be said to constitute a measure to "encourage and promote the full development and utilization of machinery for voluntary negotiation ... with a view to the regulation of terms and conditions of employment by means of collective agreements", as provided in Article 4 of Convention No. 98. The Committee therefore invites the Government, in consultation with the social partners, to reconsider the amendment introduced through section 13 of the 1993 Act. It refers the legislative aspects of this case to the attention of the Committee of Experts.

The Committee's recommendations

1. 203. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government fully to take into account in the future the principle of consultation and cooperation between public authorities and employers' and workers' organizations at the industrial and national levels, particularly where it considers adopting legislative measures which may profoundly and durably affect the role of these organizations.
   • (b) The Committee invites the Government, in consultation with the social partners, to reconsider the amendment introduced through section 13 of the 1993 Act.
   • (c) The Committee refers the legislative aspects of this case to the attention of the Committee of Experts.

Z. Annex I

• Trade Union and Labour Relations (Consolidation) Act, 1992
• (Chapter 52)
• Action short of dismissal
  146. 146 (1) An employee has the right not to have action short of dismissal taken
• against him as an individual by his employer for the purpose of -
  • (a) preventing or deterring him from being or seeking to become a member of an
• independent trade union, or penalizing him for doing so, ...
  148. 148 (1) On a complaint under section 146 it shall be for the employer to show
• the purpose for which action was taken against the complainant.
  2. (2) In determining any question whether action was taken by the employer or
• the purpose for which it was taken, no account shall be taken of any pressure
• which was exercised on him by calling, organizing, procuring or financing a
• strike or other industrial action, or by threatening to do so; and that
• question shall be determined as if no such pressure had been exercised.
• Trade Union Reform and Employment Rights Act 1993 (Chapter 19)
• Rights in relation to union membership
  13. 13 In section 148 of the 1992 Act (consideration of complaint of action short
• of dismissal), after subsection (2) there shall be inserted -
  3. (3) In determining what was the purpose for which action was taken by the
• employer against the complainant in a case where -
  • (a) there is evidence that the employer's purpose was to further a change in
• his relationship with all or any class of his employees, and
  • (b) there is also evidence that his purpose was one falling within section
    146. 146,
  • the tribunal shall regard the purpose mentioned in paragraph (a) (and not the
• purpose mentioned in paragraph (b)) as the purpose for which the employer took
• the action, unless it considers that the action was such as no reasonable
• employer would take having regard to the purpose mentioned in paragraph (a).
  4. (4) Where the action which the tribunal determines to have been the action
• taken against the complainant was action taken in consequence of previous
• action by the employer paragraph (a) of subsection (3) is satisfied if the
• purpose mentioned in that paragraph was the purpose of the previous action.
  5. (5) In subsection (3) "class", in relation to an employer and his employees,
• means those employed at a particular place of work, those employees of a
• particular grade, category or description or those of a particular grade,
• category or description employed at a particular place of work.