Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

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 Government's report. It also notes the extensive discussion which took place in 1991 at the Conference Committee concerning the issue of the Government Communications Headquarters (GCHQ), as well as the comments made by the Trades Union Congress (TUC) and the Council of Civil Service Unions (CCSU) in several communications in 1991 and 1992.

I. Dismissal of workers at the GCHQ

In its communication of 10 January 1992, to which is attached a series of letters to and from the Government, the CCSU and itself, the TUC states that following the debate at the Conference Committee in 1991 it wrote to the Prime Minister proposing discussions on this issue in the light of the recommendations made by the Committee of Experts and the Conference Committee. The TUC had referred then to the readiness of the trade unions to accept arrangements meeting the Government's requirements, and to the possibility to take the issue to the International Court of Justice, which is open to the Government under the ILO Constitution. According to the TUC, the CCSU intend to raise the issue of the GCHQ workers at the earliest opportunity with the Head of the Home Civil Service, but are pessimistic about a positive outcome in view of the attitude of the Government which has declared it found it difficult to see that any useful purpose would be served by such discussions.

In its report, the Government basically reiterates the arguments put forward at the Conference Committee in 1991, and asks the Committee of Experts to reconsider their views in light of the following points:

- GCHQ is part of the national security and intelligence service;

- under Convention No. 151 there would be no problem of interpretation;

- in many other countries the same activities would be carried out entirely within the military apparatus and would therefore be exempt, even under Convention No. 87;

- out of all the workers involved only 13 eventually did not accept the revised conditions or alternative employment, and they were given generous financial compensation;

- other international bodies concerned with fundamental human rights have ruled in the UK Government's favour; and

- workers at GCHQ are able to join an effective and indeed active trade union organisation, and the majority of staff have in fact done so.

Whilst reiterating that the trade unions concerned may raise the issue at any of their regular meetings with the Head of the Home Civil Service - an offer they have not taken up so far according to it - the Government reaffirms its belief that its action in respect of GCHQ was in line with its obligations under the ILO Conventions.

Having carefully examined the Government's report and the comments made by the trade unions, the Committee is bound to note that it was not provided with any new element which might lead it to modify its previous observation on the merits of this issue. The Committee further notes that the Conference Committee was almost unanimous as to the necessity of a renewal of the dialogue. Since then, while reiterating that the trade unions could raise the issue at their regular meetings with the Head of the Home Civil Service, the Government indicated twice to the TUC (letters of 25 June and 20 December 1991) that it found it difficult to see that any useful purpose would be served by such discussions, which probably explains why the issue was apparently not raised during these regular meetings.

The Committee deplores that it has been unable to note any tangible progress on this question or even a resumption of discussions, despite the very broad consensus that has emerged in the supervisory bodies.

It recalls that the only exclusions provided for in the Convention concern the armed forces and police, that workers have the right to establish organisations of their own choosing, and that the right to organise does not prejudge the right to strike.

The Committee consequently urges the Government to resume in the very near future constructive discussions calculated to lead, through genuine dialogue, to a compromise acceptable to both sides.

II. Article 3 of the Convention

General

In its observation of 1991, the Committee had made a number of comments concerning the Employment Acts of 1980, 1982 and 1988 and the Trade Union Act of 1984. These comments concerned the following issues:

- unjustifiable discipline (section 3 of the Act of 1988);

- indemnification of union members and officials (section 8 of same Act);

- immunities in respect of civil liability for strikes and other industrial action;

- dismissals in connection with industrial action; and

- complexity of the legislation.

The Committee notes the extensive observations communicated by the Government on these issues, both at the Conference Committee and in its report. It further takes note of the comments of the TUC in its communication of 22 January 1992, concerning the Employment Act of 1990.

1. Unjustifiable discipline (section 3 of the Act of 1988)

In its previous observation, the Committee concluded that those parts of section 3 which deprive trade unions of the right to discipline their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action, constituted an impermissible incursion upon the guarantees provided by Article 3. While recognising that the guarantees provided by Article 3 are conditioned by respect for fundamental human rights, the Committee considered that it is not compatible with the Convention to prevent the members of a trade union from freely adopting rules which provide for the imposition of disciplinary sanctions upon members of the union who refuse to comply with or seek to subvert democratic decisions by members of the union to take lawful industrial action. The Committee therefore requested the Government to revise its legislation so as to permit unions and their members to adopt and implement such rules if they so choose.

The Government stated at the Conference that provisions are needed to ensure that trade union members are free to "make up their own minds and follow their own consciences without fear of disciplinary action by their union". In addition, in its report, the Government:

(a) states that it is unable to reconcile the Experts' observations on section 3 with the agreed principle that unions' freedom to make their own rules is not absolute and is subject to the need to respect the fundamental human rights and the law of the land;

(b) emphasises that the provisions of section 3 of the 1988 Act impose no limitation on what may or may not be included in a union's own rules;

(c) observes that unions are still able, if they wish, both to have rules which allow them to discipline members for refusing to take part in industrial action and to implement those rules - as is demonstrated by a number of instances, since the adoption of the 1988 Act, in which members have been disciplined in this way;

(d) believes none the less that it is a fundamental human right of every trade union member to be able to refuse to break his contract of employment - even if called upon to do so by his trade union, and no matter what procedures have been followed before making such a call - and that such a refusal cannot be characterised as being improper in any way;

(e) maintains that the law of the land should provide a remedy for union members who suffer penalties or discrimination imposed on them by their union because of their exercise of this right, or their encouragement of others to exercise it;

(f) argues that to allow a union to be able to impose a disciplinary penalty on an individual member for deciding to honour his commitments to his employer, without providing a remedy for the member if he sought it, would amount to a failure of the law of the land to secure the member's fundamental human rights.

Accordingly, the Government sees no grounds for believing that the provisions of section 3 of the 1988 Employment Act are in fact incompatible with any guarantee afforded by the Convention.

The Committee notes that, according to the Government, section 3 of the 1988 Act imposes no restrictions as to the provisions or prohibitions that may be included in the internal rules of trade unions and that the unions retain in particular the option of adopting and applying rules enabling them to impose disciplinary penalties on those of their members who refuse to participate in a strike; this appears actually to have happened since the adoption of the Act.

In order to be able to take a fully informed decision, the Committee requests the parties to supply it with details on the specific scope of that provision and in particular on the option that unions would retain of adopting and applying rules enabling them to impose disciplinary penalties on those of their members who refuse to participate in a strike. It also requests the parties to provide it with examples of the way the provision is applied in practice.

2. Indemnification of union members and officials (section 8 of the Act of 1988)

Section 8 of the 1988 Act makes it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence or for contempt of court. In its 1991 observation, while recognising that section 8 does not expressly state that unions may not adopt rules to this effect, the Committee had concluded that it appears to achieve the same effect by virtue of the fact that any payments made in accordance with any such rule may be recovered in accordance with subsections (2) and (3) of section 8. Accordingly, the Committee considered that the legislation should be amended so as to allow the adoption and implementation of rules which permit the indemnification of members or officials in respect of legal liabilities they may have incurred on behalf of the union.

In its report, the Government:

(a) points out that section 8 only applies to fines or other financial penalties imposed on an individual for a criminal offence or contempt of court - conduct which is self-evidently in breach of the law of the land;

(b) points out that where an individual merely acts as a passive "agent" of a trade union, any penalty is likely to be imposed on the union, but that where a penalty is imposed on an individual this would imply a clear finding of wilful and unlawful action by that individual;

(c) having regard to Article 8(1) of the Convention in particular, cannot accept that provisions which declare unlawful the application of union funds or property to indemnify such individuals from the consequences of their own unlawful acts, and the consequential right of recovery of the money or property paid over, amount to a denial of any guarantee in the Convention.

Accordingly, the Government cannot agree that there is any need to amend the legislation as suggested by the Committee, since its present terms are not incompatible with any guarantee afforded by the Convention.

The Committee notes that, according to the Government, these provisions apply in extreme cases, i.e. cases in which a person is sentenced by a tribunal to a fine or another financial penalty for an illegal and wilful act manifestly constituting a breach of the national law (a criminal offence or contempt of court); in other cases, the penalties would probably be imposed on the trade union.

The Committee considers that indemnification of union members or officials in respect of legal liabilities they may incur on behalf of the trade union should be possible.

In order to be able to take a fully informed decision, the Committee asks the parties to supply it with information on the practical application of these provisions, in particular by providing the texts of quasi-judicial or judicial decisions issued in these matters.

3. Immunities in respect of civil liability for strikes and other industrial action

In its 1991 observation, whilst recognising that British legislation provides a significant measure of protection against common law liability for individuals and trade unions who organise or participate in certain forms of industrial action, and that workers cannot be ordered to return to or remain at work, the Committee maintained that some of the legislative changes which have been introduced since 1980 have had the effect of withdrawing statutory protection from various forms of industrial action which, in its opinion, ought not to attract legal liability. Therefore, it repeated its request that the Government introduce legislation to enable workers and their unions to engage in industrial action in the circumstances discussed in detail in the Committee's 1989 observation.

In its report, the Government:

(a) points out that UK law (i) continues to provide special protection against civil law liability that would otherwise arise wherever a trade union or any other person calls on workers to break contracts in contemplation or furtherance of a trade dispute with their employer; and (ii) provides a wide-ranging definition of "trade dispute" for this purpose;

(b) observes that no change since 1979 to the law relating to the organisation of industrial action has in any way affected the position of workers - who remain free to choose to engage in industrial action whether in relation to a trade dispute with their employer, or in support of other workers or of some other objective;

(c) cannot find in the provisions of the Convention any authority for the Committee of Experts' conclusion that the Convention requires that calling for, or otherwise organising, the particular forms of industrial action which it mentions ought to have legal protection.

Accordingly, the Government cannot accept that there is any need for further legislation concerning protection against civil liability for acts of calling for, or otherwise organising, industrial action on the grounds that this is necessary to ensure compliance with any guarantee afforded by the Convention.

The Committee is bound to note that no new arguments have been submitted to it that are likely to affect its previous comments; it continues to consider that some amendments to the law introduced since 1980 have had the effect of reducing or withdrawing legal protection against liability for various forms of strike and industrial action which ought not to give rise to legal liability. It refers in particular to the detailed observations it made on this question in its 1989 and 1991 reports, and again asks the Government to amend its legislation so as to enable workers and their organisations to take the forms of industrial action in question without incurring civil liability at common law.

In its communication of 22 January 1992, the TUC also submits that section 4 of the Employment Act of 1990 removes immunity in tort from all secondary action other than that arising in the course of peaceful picketing by workers at their own place of work.

Since the Government did not reply on this point which had already been raised in its 1991 observation, the Committee would ask it once again to provide full details on the objective and the effects of this provision in its next report.

4. Dismissals in connection with industrial action

In its 1991 observation the Committee had asked once again the Government to introduce legislative protection against dismissal and other forms of discriminatory treatment in connection with strikes and other industrial action so as to bring law and practice into conformity with the requirements of the Convention. In addition, adopting the conclusions of the Committee on Freedom of Association in Case No. 1540, it invited the Government to modify section 62A of the Employment Protection (Consolidation) Act (inserted by section 9 of the 1990 Act).

In its communication of 22 January 1992, the TUC emphasises that section 62A enables an employer to dismiss selectively those taking part in unofficial action; thus, persons dismissed during an unofficial strike, even if they had not participated in the action, would have no right to complain of unfair dismissal. In addition, section 6 of the 1990 Employment Act (which amended section 15 of the 1982 Employment Act) widens the definition of what constitutes official action and extends unions' liability in tort; unions could now be held responsible for actions of their members over which they have no control.

In its report, the Government points out that Convention No. 87 is concerned with protection of the freedom to form employers' and workers' organisations and the rights of such organisations, but that the treatment of individual workers (including the matter of dismissal or disciplinary penalties being imposed by an employer) is a matter dealt with expressly in other Conventions notably Convention No. 98 - and are, accordingly, unable to see how the law relating to such dismissals or discipline of individuals falls to be covered by Convention No. 87.

The Government however replies on the merits and gives the following details on the law and practice:

(a) it has always been the case that an employer is entitled to impose disciplinary penalties on workers who choose to take industrial action, including for example, denying them payment to which they would have been entitled if they had worked during the period they in fact took such action - and there appears to be no basis in the provisions of Convention No. 87 to deny employers' freedom to respond in this way to industrial action;

(b) UK law has never included the principle for which the Committee of Experts contend, namely that any employer should be prevented from dismissing or imposing a penalty on workers during industrial action; since the UK law on unfair dismissal was introduced in 1971 it has always contained an exception relating to dismissals during industrial action;

(c) UK law does not permit workers to be ordered, in any circumstances, to return to or remain at work; this freedom to decide whether to take industrial action - which, by its nature, must always be an individual decision on the part of any employee - applies regardless of the nature or scale of the effect of that action on their employers' business (either in absolute terms or in relation to the nature of the issues involved in the dispute);

(d) moreover, where employees are taking part in official industrial action - that is to say, action which is called for or otherwise organised by their trade union - an employee who is discriminated against by being dismissed while others taking part in the action are not dismissed can complain of unfair dismissal to an industrial tribunal; the same is true if all employees are dismissed but some are offered re-engagement within three months while others are not;

(e) in addition, UK employment law provides special protection for any employee who takes strike action by preserving any "qualifying period of employment" which the employee may have accumulated prior to taking such action - thereby protecting his or her future entitlement to many statutory employment rights (for example to redundancy pay), even though the employee has chosen to go on strike in breach of the terms of his employment contract;

(f) while workers' terms and conditions may be established by collective agreements made between employers and trade unions, in the UK there are not known examples of collective agreements legally enforceable between a union and an employer - which leaves UK employees free to decide to take industrial action without having to take into account potential consequences for their union in terms of its contractual obligations;

(g) it has long been a fundamental principle of UK arrangements that courts or tribunals should not be asked to adjudicate on the merits of a particular industrial dispute - and there is nothing in the provisions of any Convention ratified by the UK which would require different arrangements to apply in this respect.

Accordingly, the Government cannot accept that there is any justification for an argument that legislation along the lines suggested by the Committee of Experts is necessary to ensure that UK law is compatible with either (i) guarantees afforded by Convention No. 87, or (ii) respect for "the principles of freedom of association" in so far as these are identifiable in the provisions of that Convention itself.

The Committee must note in this connection as well that no new element has been brought forward and, in view of the fundamental importance of this question, remains convinced that conformity with the Convention requires that workers should enjoy real and effective protection against dismissal or any other disciplinary measure taken by reason of their participation, whether actual or proposed, in strikes or other forms of industrial action. It again invites the Government to amend its legislation on these lines. Furthermore it repeats its recommendation that section 62A of the Employment Act of 1990 be amended.

5. Complexity of the legislation

In its previous observations the Committee expressed its concern at the volume and complexity of legislative change since 1980 in relation to the matters covered by the Convention, and suggested that some reconsideration of the form and contents of the legislation would be advantageous.

In its report the Government confirms that it is willing to bring forward a "consolidation" measure as and when resources and the legislative timetable permit. Recalling the distinction between such a consolidation and a measure which would effect substantive changes to the present law, the Government reiterates its belief that nothing in UK general employment law is incompatible with any guarantee afforded by any ILO Convention ratified by the UK. Accordingly, it rejects the suggestion that there is any need for such a "consolidation" measure to include provisions which would effect substantive changes to the present law applying to industrial relations and trade union affairs.

The Committee notes that the Government is prepared to adopt measures of codification of the law on industrial relations and invites it to keep it informed, in its future reports, of the measures taken or contemplated in that respect.

The Committee refers to its foregoing comments with regard to the substantive provisions that present a problem in relation to the Convention.