Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

1. Further to its observation, the Committee notes the comments made by the Trades Union Congress (TUC) in its communication dated 24 December 1993 that section 14 of the Trade Union Reform and Employment Rights Act, 1993, violates the Convention by imposing on trade unions an obligation to admit to membership individuals or groups whether the unions want to accept them or not. Section 14 provides that trade unions may exclude or expel individuals from membership only: if they no longer meet an enforceable membership requirement in the trade union rules ("enforceable" being limited to: (a) employment in a specified trade, industry or profession; (b) occupational description (including grade, level or category of appointment); and (c) possession of specified trade, industrial or professional qualifications or work experience); if the union deals with only one employer or group of employers and the member concerned works elsewhere; and if the exclusion or expulsion is entirely the result of the member's conduct. According to the TUC, conduct does not cover membership of another union nor does it permit union rules which exclude members of racist or totalitarian political organizations. A worker who believes his or her rights to be infringed as a result of expulsion or exclusion may receive up to 17,500 from the union if the claim is upheld.

The Government states that the effect of section 14 is simply to open up membership of unions to individuals who might otherwise be denied such membership on grounds which are clearly irrelevant to trade union membership - including membership of any particular political party. It considers that this small degree of interference in the ability of trade unions to enforce membership rules is fully justified to achieve a significant improvement in the protection which the national legislation affords to individuals against unfair discrimination.

While the Committee has previously noted that the right of organizations to draw up their constitutions and rules must be subject to the need to respect fundamental human rights and the law of the land and that this means that it would not be inconsistent with the requirements of the Convention to require that union rules not discriminate against members or potential members on grounds of race or sex, it seems that section 14 of the 1993 Act limits union rules beyond such fundamental considerations and leaves little room for union members to determine the make up of their organization in accordance with its objectives. The Committee requests the Government to give consideration to narrowing the limitations placed upon trade unions in section 14 to ensuring only that individuals not be excluded or expelled from a trade union because of rules which would discriminate against individuals in violation of their fundamental human rights. It also invites the Government, and the TUC, to provide the texts of any judicial decisions involving the application of this provision.

2. The TUC has also indicated that section 22 of the 1993 Act further inhibits legitimate industrial action by opening up the possibility for legal action against a strike for any individual who is deprived or likely to be deprived of goods or a service by unlawfully organized industrial action. According to the TUC, such individuals may apply for interlocutory injunctions to restrain strikes and the balance of convenience test normally applied by the British courts invariably works to the disadvantage of trade unions.

In its reply, the Government states that this provision does not remove any part of the statutory protection available under the law for the organization of industrial action, but simply creates a new individual right which ensures that there is a legal remedy for anyone deprived of goods or services because of unlawfully organized industrial action. As concerns the interlocutory court order, the Government explains that this is necessary to avoid such proceedings from being decided at full trial, after many months during which such potentially unlawful action could continue. The Government also points out that the use of the long-established balance of convenience test does not mean that the proceedings invariably result in an award of an order against the trade union and gives a recent example of where the courts refused to award such an interlocutory order.

While noting the Government's explanations for the creation of this new individual right, the Committee can only consider that this "third-party right", in so far as it may result in injunction orders against strikes, provides yet another obstacle to the exercise of the right to strike by opening the industrial action of trade unions to constant attack from an infinite number of potentially deprived third parties and requests the Government to give consideration to repealing section 22 of the 1993 Act.

3. The Committee notes that section 18 of the 1993 Act now requires in the pre-ballot information to be provided to the employer a description of the employees who it is reasonable for the union to believe will be entitled to vote in the ballot, thus enabling employers to put the case against taking industrial action to those employees. If this new provision is interpreted to require unions to precisely identify those individuals by name, it might render the ballot requirement - unreasonably difficult for unions to fulfil and the slightest error could mean that the industrial action in question would lose the protection afforded by the statutory immunities. The Government is therefore requested to indicate in its next report whether the requirements in section 18 can be fulfilled by merely describing the group or class of employees to be balloted or whether the individuals must be identified by name.