Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1950)

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative of the United Kingdom reminded the Committee that when it last examined in 1994 the question of statutory protection for individuals against discrimination on trade union grounds, the Government had provided details of the comprehensive legislative provisions which explicitly outlawed discrimination on grounds of trade union membership and which provided appropriate remedies. On that occasion, members of the Committee had recognized that there were extensive procedures to ensure that the legislation protecting individuals from discrimination were implemented and that genuine and effective remedies were available to those who considered that they had cause for complaint under that legislation. The Committee had concluded by noting certain developments with regard to the strengthening of protection against anti-trade union discrimination and had offered no observations to the contrary in its conclusions, and therefore the Committee had acknowledged that the United Kingdom was satisfying its obligations under this Convention. He was therefore disappointed and somewhat puzzled to learn that the Committee of Experts still had concerns and was even suggesting that the Government should review its legislation with a view to amending it.

The Government had noted that the Committee of Experts had referred to the conclusions of a case which had been considered by the Committee on Freedom of Association concerning section 13 of the Trade Union Reform and Employment Rights Act, 1993 (TURER). In this case, the Committee on Freedom of Association had concluded that section 13 raised problems of compatibility with the principles of freedom of association, while the Committee of Experts had commented that it was likely to discourage rather than encourage collective bargaining, in contravention of Article 4 of the Convention. The speaker explained that the change made by section 13 of the Act had been merely to clarify the existing law, to enable employers to take reasonable action to further a change in their negotiating arrangements and to make plain that the right not to be discriminated against on trade union membership grounds did not include or imply any right to have one's terms and conditions negotiated by collective bargaining. The law had always been intended to deal with individual rights of employees, not collective bargaining issues, as was confirmed by the House of Lords in its judgements in the Wilson and Palmer cases. He stressed that the Government had not introduced section 13 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 did not have the unintended side-effect of preventing employers from changing their arrangements for collective representation. In the Wilson and Palmer cases there had been no evidence showing that the purpose of withholding the pay increase was to deter the applicant from remaining a member of the union. Furthermore, section 13 had no implications for the legislation under which individuals remained protected against refusal of employment, dismissal and action short of dismissal on trade union membership grounds.

The speaker stated that section 13 did not contravene Article 4 of the Convention. Given the United Kingdom's national conditions and voluntarist traditions, it would be wrong to use the law on union membership to restrict the ability of employers to freely determine their bargaining systems. Convention No. 98 was intended to protect individual workers from discrimination, which the United Kingdom legislation continued to do, and not to compel employers to enter into particular arrangements for collective bargaining. The law, as clarified by section 13, allowed employers to offer incentives to employees in return for their consenting to any change in their relationship with the employer, particularly in respect of the way in which terms and conditions were to be settled. The provisions thus equally protected employers who sought to change their negotiating arrangements to bring about collective representation, and therefore were neutral in that it permitted employers to encourage the spread of collective bargaining. The speaker reassured the Committee that section 13 was not intended as an attack on trade union rights, as had sometimes been suggested, nor to discourage collective bargaining, but merely ensured the unfettered ability of employers to change their negotiating arrangements.

The speaker mentioned that the United Kingdom had a long tradition of collective bargaining based on the voluntarist principle and that collective bargaining remained a major feature in industrial relations. Nearly 50 per cent of the workforce had their pay and conditions determined at least partly by collective bargaining. He recalled that employers and unions in the United Kingdom wished to preserve the free and voluntary nature of bargaining and he cautioned against an interventionist approach to encourage either individual or collective bargaining. He contended that under Article 4 of Convention No. 98, legislation which attempted to force unwilling employers to recognize and bargain with a union would not only be unnecessary in the United Kingdom but also undesirable in the national context.

The speaker recalled that the Committee of Experts had expressed doubts about the adequacy of the legislative protection against acts of anti-union discrimination and had suggested that the action taken to change negotiating arrangements was tantamount to anti-union discrimination since it prevented workers from making use of a union's essential services, namely collective bargaining. In particular, they had expressed concern that section 146 of the Trade Union and Labour Relations (Consolidation) Act, 1992, might contravene Article 4 of the Convention in that it did not protect the use of a union's essential services (e.g. collective bargaining) from acts of anti-union discrimination. The Government, however, was convinced that this section was consistent with the protections required by Convention No. 98. Under section 146 of the Trade Union and Labour Relations (Consolidation) Act, 1992, an employee had the right to be protected from acts short of dismissal intended to prevent him from being a union member, including the withholding of a pay increase, discrimination in promotion, or threats of dismissal or redundancy. An employee who believed that his employer had acted unlawfully in this way could complain to an industrial tribunal and, if the complaint was upheld, the tribunal could make an order for reinstatement or make an award of compensation.

The speaker believed that it was unreasonable to suggest that action taken by an employer to change negotiating arrangements with a trade union was tantamount to action taken to deter workers from becoming, or prejudice them for being, union members. Such a suggestion showed a fundamental confusion between, on the one hand, the right of workers to belong to a trade union and, on the other, the separate issue of whether the trade union to which they belonged had been given collective representational rights by their employer. When a worker joined a trade union, the union might or might not have been granted the right to collective representation by the employer. The existence of collective representation thus resulted from the employer's decision and not from the worker's membership of the union. It therefore followed that, if the employer took steps to encourage workers to cease being collectively represented by the union, that act did not prejudice the worker by reason of his or her union membership. The worker was 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.

Similarly, for two reasons it was wrong to suggest that the employer's purpose in taking steps to encourage workers not to be collectively represented was necessarily to deter them from, or prejudice them for being, union members. First, the employer's immediate purpose in these circumstances was simply to change negotiating arrangements, not to bring about the remote and uncertain result that workers might leave the union. Second, and more important, it was for each individual employee to choose whether to remain in the union or not. Finally, on this point, the speaker did not agree that collective bargaining was an inherent right included in the right of trade union membership. There was a valid distinction to be made between union membership rights and access to collective bargaining. If this were not the case, every worker who joined a trade union would have the right to collective representation. This had never been the case in the United Kingdom and would be totally at odds with its tradition of voluntarism. Many workers chose to belong to a union even though their employer did not have collective bargaining arrangements with that union and many workers were covered by collective bargaining who were not members of a trade union.

The speaker concluded by reiterating that not only did the United Kingdom legislation ensure the free exercise of trade union rights by prohibiting acts of anti-union discrimination, but that there were also ample remedies, both in the civil courts and through the industrial tribunals, available to those who had been unfairly discriminated against on grounds of trade union membership and activity. He assured the Committee that all of the information requested by the Committee of Experts, would be provided in the next report on this Convention.

The Workers' members said that they would concentrate on Parts 1 and 3 of the case. With respect to Part 2, the TUC and its affiliated teachers' unions would be submitting further evidence on the malfunctioning of the School Teachers' Pay Review Body to the Committee of Experts, for its next session.

It was stated that the law of the United Kingdom discouraged collective bargaining in favour of individual bargaining. It allowed discrimination against union members and discouraged working people from joining unions. The Committee of Experts had indicated quite clearly that section 13 of the legislation was likely to result in a situation wherein collective bargaining was easily and effectively discouraged instead of being encouraged, and had requested the Government to review and amend section 13 so that it would not result in effective discouragement of collective bargaining in contravention of Article 4 of the Convention. This was an extraordinarily strong and clear statement from the Committee of Experts and should therefore be persuasive in the Committee's deliberations.

Concerning anti-union discrimination, they stressed that the United Kingdom law permitted employers to discriminate against workers both in hiring and in pay. The law had not been revised despite previous conclusions of ILO bodies and was particularly problematic because it permitted discrimination at the time of recruitment on the basis of past trade union membership and activity, thus discouraging trade union membership generally.

Concerning the issue of pay, the law now in effect permitted individual contracts to exceed those that were collectively bargained, which not only discouraged collective bargaining, but encouraged discrimination against union members in pay and benefits. The Committee of Experts had clearly and firmly requested the Government to amend the legislation to bring it into conformity with Articles 1(2)(b) and 4 so as to ensure effective protection of workers from any action taken by the employer or omission to act, which would result in penalizing workers for attempting to regulate their terms and conditions of employment through collective bargaining. They proposed that the Committee request the Government to change the law.

The Employers' members noted that this case before the Committee involved first whether there was adequate protection of trade union activists against discrimination; and second, the question of whether collective bargaining was adequately encouraged or, on the contrary, discouraged. The Wilson and Palmer cases mentioned by the Government representative had a long legal history and were widely written about, and as a result of these decisions the legislation had been changed. In this regard, having examined this amendment in a complaint, the Committee on Freedom of Association had concluded that in future, the United Kingdom should discuss beforehand such important amendments to the law with the social partners. The Employers' members strongly endorsed this recommendation.

The Employers' members noted that the Committee on Freedom of Association had urged the Government to re-examine this matter very carefully one more time, but also had stated in its conclusions that the legislative aspects should be looked at by the Committee of Experts, suggesting that not everything was absolutely clear. They also noted the Government representative's statement that there was a big difference between protection against anti-union discrimination on the one hand and promotion of collective bargaining on the other, especially within the British tradition of individual rights. They agreed with the Committee of Experts that national legislation was a very complicated and intricate structure and that it was not possible to examine one item in isolation and come to a clear conclusion. They recalled the Committee of Experts' recommendation that the legislation on this issue be simplified, but that such advice was not binding, and that it was to be expected that legislation in countries with a long legislative tradition would be very complex. The Employers' members noted that the Committee of Experts, upon the request of the Committee on Freedom of Association, had analysed the legislative situation and had come to a very cautious conclusion - that the amendment probably did not encourage collective bargaining but rather appeared instead to discourage collective bargaining. The phrasing of the statement clearly indicated their uncertainty. Likewise, the Committee of Experts had said rather vaguely and indecisively that protection against discrimination "seemed" to be insufficient, and that a particular interpretation of the legislation "might" contravene Article 4 of Convention No. 98. Yet at the end of the report the Committee of Experts had requested both that the Government amend its legislation and also that it provide further information. The Employers' members noted that the representative of the Government had promised to provide further information, but they did not expect that the Government would amend the legislation. They hoped that the Government would maintain the dialogue with the Committee of Experts and with this Committee, to the extent necessary, but they did not think that the conclusions should be more stringent than those of the Committee of Experts.

The Workers' member of the United Kingdom emphasized that the case under consideration raised a number of outstandingly serious issues, such as the dismissal of workers on grounds related to industrial action and blacklisting. However, she focused her comments on section 13 of the 1993 Trade Union Reform and Employment Rights Act. While thanking the Government representative for his full and complex comments, she noted that the issues underlying the case were basic and straightforward. Even before the Committee had had the opportunity to discuss the case, the Government had demonstrated its obdurate refusal to accept the authority of the ILO supervisory bodies. In this connection, she quoted a letter from the Secretary of State for Education and Employment to the Trades Union Congress (TUC), stating that there was no question of the amendment made by the 1993 Act allowing employers to discriminate against union members with regard to pay and conditions. The letter further stated that the law continued to protect employees against discrimination by their employer on grounds of union membership or non-membership, as it had always been intended to do. However, she affirmed that in practice this was not at all the case. In this connection, she drew the Committee's attention to the fact that there had been no consultation with the social partners prior to the introduction of section 13 into the Act. Before its introduction, the Act had prohibited employers from discriminating in pay against trade union members, as confirmed in a unanimous decision of the court of Appeal in the cases of Wilson and Palmer. Immediately following that decision, the provision in question had been added to the legislation, which had at the time been before the House of Lords.

When the above cases had been referred to the House of Lords in an appeal procedure, the employers had won their case. The five Law Lords had used different reasoning to reach the same conclusion that the decision of employers to deny the pay rise to workers who did not sign personal contracts was not action short of dismissal on grounds related to union membership. The first issue involved was whether the denial of the pay increase was intended to deter union membership or, as argued by the employers, to facilitate changes in bargaining arrangements. The Committee on Freedom of Association, when it had considered the matter, had commented that section 13 was so vague and wide that an employer would be able to produce evidence in almost any circumstances that he or she was furthering a change in relationships with workers. It had added that the industrial tribunal would be practically compelled to reject a complaint of victimization. The ruling had also stated that withholding a pay increase was not an "action", but an "omission", and therefore not covered by the provision. It was very significant in this respect that one judge had indicated that he had reached this conclusion with regret, since it left an undesirable lacuna in the legislation protecting employees against victimization.

In subsequent cases to Wilson and Palmer, such as the Red Funnel Shipping Group case, legal advice had been received that a challenge to cases of discrimination in pay permitted by section 13 would be unable to succeed at an Industrial Tribunal; and that a change in the law would be necessary for any such application to be allowed.

Another point raised in the Law Lords' ruling was that membership of a union could not be equated with using its services. This was a very strange argument, since the prime reason for joining a union was precisely for workers to avail themselves of the services provided by trade unions, the principle of which was collective bargaining. Workers joined trade unions in order to enhance their collective strength in bargaining with employers.

The conclusion was clear. Workers who had refused to relinquish their rights to be represented by a union in pay negotiations received lower pay than colleagues who did the same work but had accepted personal contracts. They earned less because they had defended their rights as trade unionists. Section 13 therefore constituted a direct attack on the core requirements of the Convention. The case-law of the Committee on Freedom of Association clearly specified that the Convention required governments to protect the right of workers to organize, protect them against acts of anti-union discrimination and promote voluntary collective bargaining. It was very clear that the Government was not simply failing to encourage and promote collective bargaining, but was doing its utmost to undermine it. Section 13 not only permitted discrimination in remuneration against trade union members, but it permitted employers to bribe workers to give up their rights to collective bargaining, as well as to penalize those who refused to do so.

The ILO supervisory bodies had commented in the recent past about the extreme complexity of the British trade union legislation. They had found that complexity itself to be burdensome and to have the potential to prevent the effective exercise of trade union rights. That in itself was a very important issue.

In conclusion, she was confident that the Committee would appreciate the extent to which section 13 attacked the fundamental rights of workers and that it would call on the Government to amend the legislation with the utmost urgency in order to bring it into conformity with the Convention.

The Workers' member of South Africa emphasized that the Convention called upon governments to promote collective bargaining, which implied a preference for the system of collective bargaining. Collective bargaining could not be promoted by allowing employers to prefer the opposite system, namely the conclusion of individual contracts. He reminded the Committee that collective bargaining had been developed to deal with two inherent problems of individual bargaining, namely that power was overwhelmingly in the hands of the employer and the conclusion of individual contracts permitted the employer to divide and rule. The fact of permitting pay differentials in favour of non-union members effectively deterred workers from trade union membership. In this context, he disagreed with the interpretation given by the Government representative of the words "where necessary" in Article 4 of the Convention. These words did not mean that a government could choose whether to promote collective bargaining, but that if the machinery for its promotion did not exist, it would be necessary to create it. In conclusion, he said that throughout the world the fact of going behind the backs of recognized bargaining agents was regarded as an unfair labour practice.

The Workers' member of Sweden emphasized the incompatibility of the current legislation with the obligations of the United Kingdom in relation to the Convention. The Convention required the promotion of voluntary negotiations between employers' and workers' organizations, rather than with individual workers, with a view to regulating terms and conditions of employment through collective agreements, rather than individual agreements. By allowing employers to discriminate against workers who were unwilling to give up their fundamental trade union rights, the Government had clearly not fully understood the meaning of the Convention. Moreover, it was even more puzzling to hear the distinction made by the Government representative between the right of workers to join a union and their right to act through the union. Even more misleading was the attempt by the Government representative to state that, by allowing employers to put pressure on workers to sign personal contracts, it was promoting and encouraging the conclusion of collective agreements. Collective bargaining was the opposite of individual bargaining. The case related to the fundamental principles of the ILO. The Government had failed to comply with the Convention and should amend its legislation forthwith in accordance with the request made by the Committee of Experts.

The Workers' member of Fiji agreed with the previous speakers that section 13 of the Trade Union Reform and Employment Act permitted the bribery of workers to persuade them to give up their trade union rights in violation of the basic principles of the Convention. He strongly disagreed with the Government representative that workers would join trade unions for purposes other than collective bargaining. Indeed, it was very clear that the national legislation was designed in a subtle way to undermine workers' organizations and ensure that many trade union members were not covered by collective bargaining. The Committee should call on the Government to revoke the provision in question.

The Workers' member of Germany agreed with previous speakers that the national legislation constituted an important restriction on the rights guaranteed under the Convention relating to the promotion of collective bargaining. The case also raised the particularly important issue of blacklisting, which involved the compilation of secret information concerning membership of trade unions which could be supplied to employers. This practice rendered discrimination on the basis of the provisions contained in section 13 of the Act even more serious. The section had a discriminatory effect as regards current labour contracts and the blacklists were designed to ensure that the persons concerned did not obtain contracts of employment in the future. This would lead to a situation in which workers enjoyed no protection of their rights. The issue had to be dealt with in terms of the protection that needed to be accorded to trade union members under the Convention. There was an urgent need for very full information on this matter and the Committee should request the Government as a matter of great urgency to take measures to resolve the situation and to provide it with information on the progress achieved at its next meeting.

The Government member of South Africa raised a number of legal questions on which he hoped the Government representative would be able to provide clarification. The amended legislation stated that if there was evidence of discrimination on the grounds of belonging to a trade union, as well as evidence that the employer wished to change its bargaining relationship with all or any class of employees, the courts were obliged to disregard the anti-union evidence and accept only the evidence of its purpose of changing the bargaining relationship. Did this mean that if there was overwhelming evidence of anti-union discrimination, and only some evidence of an intention to change the bargaining relationship, the courts had to disregard the evidence of anti-union discrimination? He wondered whether it would not be better for the real reason and purpose of the employer's action to be determined by the courts, rather than decided in the legislation itself. Moreover, he requested clarification as to the meaning of "class of employee". Could this mean membership of a trade union and, if so, did this permit an employer to take action, such as withholding pay increases, in respect of the members of a particular union, while giving increases to the members of another union with a view to changing the bargaining relationship in favour of one of the unions?

The Workers' member of Pakistan recalled that the United Kingdom was one of the founder members of the ILO and had ratified the Convention as long ago as 1950. However, changes had been made to the national legislation which had been found by the Committee of Experts to discriminate against trade union members. It was part of the case-law of the Committee on Freedom of Association that governments should take measures whenever necessary to ensure that the protection of workers was effective and that they should abstain from any act likely to provoke anti-union discrimination against workers in respect of their employment. It had also stated that public authorities should refrain from any interference which would restrict the right of trade unions to collective bargaining. The history of the trade union movement showed that social progress would not have been achieved if workers had not committed themselves to a long and arduous struggle to obtain the right to collective bargaining. It was the purpose of the ILO to promote social justice through dialogue, which meant negotiation. The United Kingdom was a member of the Governing Body and therefore had an even greater obligation than other countries to discharge its obligations in respect of the ILO and its Conventions.

The Employers' member of the United States, referring to the right of workers to join unions and to be represented by them in collective bargaining, asked whether employees did not also have a fundamental right not to join or be represented by a workers' organization or, if they were already members, to relinquish their membership.

The representative of the Secretary-General recalled that the Office had no authority to interpret Conventions and that his intervention was therefore merely of an informative nature. When formulating the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), one of the questions raised had been that of union security, or closed-shop clauses. However, these had been excluded from the Convention. Doctrine showed that the ILO protected the positive right to establish and participate in an organization, while it was for national legislation to regulate the right not to join an organization.

The Government representative, in response to the previous speakers, said that he had listened with considerable care and attention to a very interesting debate during which a large number of points had been raised. Although he might not be able to reply to all of them, he wished to make seven points in reply to the various comments.

The first concerned a misunderstanding relating to the Wilson and Palmer cases. These cases did not concern the issue of trade union membership and there had been no suggestion that the workers concerned had been placed under pressure to leave their unions. Both employers had made this clear and it had been accepted by the courts.

Secondly, concerning the allegations of undue haste in the adoption of the amendment to the 1993 Act, he pointed out that the Act had for the most part been the subject of extensive consultation on the basis of a Green Paper published before its introduction. However, the judgement in the Wilson and Palmer cases had been handed down shortly before the Act had completed its passage through Parliament. The Government had therefore had to act quickly, with no time for consultations, in order to clarify the law. Moreover, the judgement had been surprising in that it interpreted the law in a different manner from the way in which it had been understood previously. The purpose of section 13 had therefore been to restore the previous understanding of the law, which had subsequently been confirmed when the House of Lords overturned the interpretation of the Court of Appeal.

In the third place, he completely refuted any suggestion that United Kingdom legislation allowed discrimination against trade union members. The Act provided that an employee had the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of: preventing or deterring him from being or seeking to become a member of an independent trade union or penalizing him for doing so; or 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. This considerable level of protection for trade union members was supplemented by protection against dismissal.

In the fourth place, referring to trade union organization and collective bargaining arrangements in general in the United Kingdom, he noted that there were still around 250 unions in the country. Workers were free to join any union which represented their occupation and it was still by no means unusual for several trade unions to have members in a single workplace. Employers could not be expected to bargain with every trade union to which a single member of their staff belonged. In this respect there was therefore a clear distinction between the right to join unions and the right to seek to bargain collectively.

In the fifth place, he stated that it was simply not true that the national legislation did not promote collective bargaining. Trade unions that were recognized for collective bargaining purposes enjoyed substantial legal advantages, including the right to receive certain information, the right to time off for trade union activities and training, and certain rights of consultation.

The sixth point concerned the letter quoted earlier from the Secretary of State for Education and Employment to the Trades Union Congress (TUC), which had only been cited in part. The main part of the letter stated that the Government had noted the latest comments from both the Committee of Experts and the Committee on Freedom of Association and would respond in detail through the normal channels at the appropriate time. It assured the TUC that its views on the report due next year on the application of the Convention would be sought in the usual way in accordance with the agreed consultation procedures and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Finally, in response to the points made by the Government member of South Africa, he stated that the relevant law provided that courts must not disregard evidence of discriminatory intention if the court considered it to be action such as no reasonable employer would take. The provision was framed to reverse the presumption that an employer's objective in ending collective bargaining was to deter workers from being trade union members. The term "class of employees" meant 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. It did not mean all employees who were trade union members.

He apologized if he had not responded to all the points made in a very interesting debate, but confirmed that the Government would be happy to supply any further information which might be helpful to the Committee of Experts in due course.

The Workers' members recalled the comment made by the Employers' members at the beginning of the debate that the case was not as simple as people wished to indicate. In practice, the reverse was true and the case was nowhere near as complicated as the Government representatives wished to portray it. The only clear conclusion from the intervention of the Government representative had been his desire to obfuscate the issue. However, the Committee of Experts had been quite clear as to the remedy, which was to conform to the requirements of Convention No. 98 and encourage the practice of collective bargaining, rather than continuing to discourage it by using a complex array of conflicting legal provisions which permitted employers to discriminate against unions and union members in a great number of ways. Reference had been made to cases in which employers offered pay increases to encourage individuals not to become members of unions. But no examples had been cited of the opposite. It was therefore not credible for the Government representative to refute the fact that the law permitted discrimination. The Committee on Freedom of Association had clearly stated that under United Kingdom law a tribunal would be practically compelled to reject a claim by an employee that he had been discriminated against on the basis of union membership. The law was clearly being used to discourage collective bargaining and trade unions. The intervention by the Government representative had added a new element to the saying "justice delayed is justice denied" by demonstrating that "justice obfuscated is justice denied". The Workers' members therefore urged the United Kingdom to discharge its obligations under the Convention.

The Employers' members noted that nearly all the previous speakers had said that the current situation was not fully clear. Dialogue on the situation was therefore required in order to clarify the manner in which the law was applied in practice. They therefore suggested that the matter should be examined from a position of more complete knowledge of the facts at some point in the future.

The Committee noted the statement by the Government representative and the discussion that followed. The Committee noted that, in the same way as the Committee on Freedom of Association, the Committee of Experts had noted the insufficiency of the protection that should be afforded to workers against acts of anti-union discrimination under the terms of Article 1 of the Convention. It also noted that the interpretation of the labour legislation by the legal system had given rise to comments by the Committee of Experts and the adoption of conclusions by the Committee on Freedom of Association with regard to Article 4 of the Convention concerning the promotion of collective bargaining. The Committee hoped that the Government would re-examine the situation so that its law and practice would, without any ambiguity, give effect to the principles contained in the Convention. It trusted that the Government would provide detailed information in its next report on the legislative measures that had been taken or were planned to give full effect to the Convention in both law and practice, and particularly to guarantee respect for the protection against acts of anti-union discrimination and to promote collective bargaining with a view to determining the terms and conditions of employment of workers.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative referred first to the Committee of Experts' comments on the United Kingdom Government's compliance with Article 4 of the Convention in relation to the determination of schoolteachers' pay and working conditions in England and Wales. In its report, the Government had provided information on the establishment of an independent review body to make recommendations on the pay and conditions of teachers in England and Wales and also of the public endorsement of this body by five out of six of the national unions representing teachers in service. In response to a request from the Committee of Experts, it had provided information on the statutory powers of the review body and of its practical functioning during the pay rounds of 1992 and 1993 including particularly the involvement of all teachers' unions and employers' associations. In its report, the Committee of Experts recorded this information and concluded that, "the Committee notes the information provided by the Government and trusts that the new pay review machinery for schoolteachers will not be applied in practice so as to hamper the freedom of collective bargaining". He believed that both the constitution and practical operation of the review body were consistent with that objective. Consequently, he found no issue in the Committee of Experts' report to explain or defend to this Committee today. However, the mere fact that the subject of schoolteachers' pay machinery had been selected for discussion, suggested clearly that there was perhaps some problem of which neither his Government nor the Committee of Experts had been informed. He thus suggested that the Workers' representative give his Government any information received on the matter without taking the issue any further in this Committee today. That approach, he believed, would be in accordance with the written agreement which the Government had reached with the TUC and CBI, to meet the requirements for tripartite consultation concerning reporting procedures under Convention No. 144 so as to enable them to provide comments to the Committee of Experts on the issues raised, if necessary. In the meantime, he considered it would be premature and possibly contrary to the established procedure of the ILO's supervisory machinery for this Committee to consider today any issues which neither the Government nor the Committee of Experts had had the chance to consider. With respect to the Committee of Experts' comments on the protection available in the United Kingdom to those who were rejected for a job because of their trade union membership or activity, he stated that, since 1978, his Government considered that the requirements of Convention No. 98 in this regard were met by the provisions of the Employment Protection (Consolidation) Act of that year. However, with the introduction of the Employment Act, 1990, the Government specifically extended protection to ensure that individuals would not be denied employment on the grounds of trade union membership. He elaborated further that Section 1 of the 1990 Act provided that an individual's ability to obtain a job should not be affected by the question of whether or not they are a member of a trade union by making it unlawful for an employer to refuse to employ anyone on the grounds of such membership or non-membership, or for refusal to join or for cessation of membership of a trade union. Anyone who was refused employment on these grounds could complain to an industrial tribunal and it would be for the tribunal to decide the complaint on the facts of the case. If a tribunal found that an individual had been unlawfully refused employment for reasons relating to trade union membership, it would make a declaration to that effect and could also award the complainant compensation to be paid by the prospective employer and/or would recommend that the prospective employer take action to remedy the damage of that unlawful refusal. It could, for example, recommend that the employer should consider the complainant for a job vacancy, although it could not order them to do so. The tribunal would assess and award any compensation on the same basis as damages for breach of statutory duty, and this might include compensation for injury to feelings. In cases where an employer against whom a complaint was upheld failed, without reasonable justification, to comply with a recommendation, the tribunal might increase the amount of its award if it had not already done so up to a maximum limit of L11,000. In his view, these were substantial legislative provisions, by any standards, explicitly outlawing discrimination in recruitment on grounds of trade union membership and providing appropriate remedies. He remarked that the Committee of Experts had taken note of this and conceded that this might offer "some remedy" against acts of discrimination against trade union membership but added that it "considers that the existence of legislative provisions prohibiting such acts is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice and machinery appropriate to national conditions should be established, where necessary, to ensure respect for the right to organize". It was not at all clear what procedures and machinery the Committee of Experts had in mind and it unfortunately offered no further explanation except to echo the regret of the Committee on Freedom of Association in Case No. 1618, that the Government did not take any measures to implement the recommendations of the House of Commons Select Committee cited in that case. The relevant recommendations of that House Committee were that all organizations supplying information about potential employees should be subject to licensing and to a code of practice, and if a potential employee were refused employment as a result of the information supplied, it should be passed on to the employee to provide a chance for that information to be rejected. The Government had not accepted these recommendations because it believed that they would impose significant additional burdens on all organizations supplying information to prospective employers (which would, for example, include previous employers, banks, schools and colleges) without improving the protection available to jobseekers. The provisions of the Data Protection Act 1984 already provided some protection against the supply of inaccurate information, and it was not clear that the Select Committee's recommendations, if implemented, would have offered much further assistance to trade union members rejected for jobs they had applied for. Even if such trade union members had found that the information passed on to them by the organizations was entirely accurate, how would they have known that it was complete? And if they had been rejected for a job, how would they have known whether the employer's decision was based on information supplied by particular organizations, rather than, for example, through informal discussions with friends which would never have been recorded? He believed the crucial issue in all these cases was not the information which employers received about jobseekers, but the use which the employers decided to make of that information in refusing to offer them employment. In other words, it was not the information itself, but the reasons for refusing employment which constituted discrimination on trade union membership grounds which was precisely the area covered by Section 1 of the Employment Act, 1990. This legislation had therefore tackled the real problem of discrimination in recruitment which the Select Committee's recommendations would have left entirely untouched. He was confident that the industrial tribunal system in the United Kingdom did provide what the Committee of Experts had called for in terms of "effective procedures" and "appropriate national machinery". He considered that industrial tribunals had the expertise and practical experience needed for the most searching scrutiny of cases of denial of employment on grounds of trade union membership. He believed that the United Kingdom Government had put into place both the legislation necessary to ban discrimination in recruitment on grounds of trade union membership and as forceful and as practical a means of implementing this legislation as could reasonably be provided. He therefore invited this Committee to accept that these measures complied fully with the requirements of Articles 1 and 3 of the Convention.

The Workers' members thanked the Government representative for his statement and said that the somewhat complex arguments should be put into some sort of context to render them less abstract. Just to show that it was wrong to assume there were no complaints against the United Kingdom Government in the past regarding Convention No. 98, he recalled that this Committee and the Committee of Experts had experienced various difficulties with the British Government, including the GCHQ case at Cheltenham. Unless the important principles involved in the GCHQ case were resolved, the other serious conflicts in the United Kingdom's legislation and practice, relating to both Conventions Nos. 87 and 98, regularly reported on by the Committee of Experts, could not be usefully pursued with the United Kingdom Government. If all or even part of the problems involving the United Kingdom in this respect were taken up, the discussion would have monopolized the work of this Committee. He further recalled that in the past 13 or 14 years, there had been about six or eight new major pieces of legislation that had succeeded in reducing either the rights or effectiveness of trade unionists in Great Britain. Some clauses of these laws went to the very limits of what the Conventions allowed and others went even beyond those limits and have been the subject of the comments of the Committee of Experts which, at one stage, remarked that the very weight and amount of the legislation was itself repressive. In his view, the British Government had, through this body of legislation, made the whole country into an export processing zone and in the process had not, of course, respected the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body in November 1977 which states: "where governments of host countries offer special incentives to attract foreign investment, these incentives should not include any limitation of the workers' freedom of association or the right to organize and bargain collectively" as cited in paragraph 60 of the Committee's General Survey of this year. In his view, there was a prolonged and sustained attack by the British Government upon trade unions. Regarding the questions of denial of employment on the grounds of trade union membership or activity, he wished to recall the nasty and vicious role played by the former Economic League by providing blacklists of trade unionists to unscrupulous employers. He stated that the existing United Kingdom legislation was not sufficient to deal with any new similar bodies whose sole purpose was anti-trade union discrimination. Indeed, the TUC understood that leading figures from the former Economic League had bought an "off the peg" company and, using information previously held by the League which, it had appeared, had not been destroyed as claimed were once again providing a similar service to unprincipled employers. He referred to the passages quoted by the Government representative from the third paragraph of the observation of the Committee of Experts and considered that the Committee was drawing the Government's attention to the need to create the condition in law which would enable a trade union to defend itself. It was up to the Government to choose the manner and the means by which it wished to resolve this question. Regarding the question of schoolteachers' pay and working conditions in England and Wales, he said he based his remarks on information he had obtained from the largest teachers' organization in the United Kingdom, the National Union of Teachers. Referring to the statement of the Government representative that five out of six trade unions were taking part in collective bargaining under this machinery, he said that, even if certain unions had accepted a law or a governmental decision, this did not ensure conformity with the Convention. Neither did it stop the Committee of Experts from commenting about the matter. In his view, the teachers' union was rightly basing its position on Article 4 of Convention No. 98. Referring to the final passage of the observation of the Committee of Experts, also cited by the Government representative, he was of the view that the Committee of Experts was simply pointing out that the review machinery was acceptable to the extent it did not hinder collective bargaining. It was their considered view that the machinery and its functioning, as described by the Government and reflected in the observation of the Committee of Experts, did not provide for voluntary negotiation between employers' and workers' organizations with actual meetings in the review body to conduct negotiations to regulate the "terms and conditions of employment by collective agreements". He was wary about the suggestion made by the Government representative about circumventing this Committee to conduct tripartite consultations on this question given the experience of the pointless similar discussions in the GCHQ case. He concluded by saying that the Committee of Experts could assess the information provided and the views expressed here and could then give its comments on whether the workings of the review machinery constituted collective bargaining within the terms of the Convention.

The Employers' members recalled that in the last 15 years this Committee had not been confronted with the need to discuss the application by the United Kingdom of Convention No. 98. But on the other hand it had discussed, on many occasions and at length, cases involving the United Kingdom under Convention No. 87 and invariably the expected explosive petered out. The case before this Committee this year as usual touched only a limited number of issues. The Workers' members, in presenting their views on all the amendments adopted in the last few years to the pertinent United Kingdom legislation, had considered this legislation to be too much and complex. The Employers' members found this view surprising because the Convention did not require the simplification of the legislation. They considered it was more prudent to stick to the few concrete points in this case. Point 1(a) of the observation of the Committee of Experts concerned the issue of whether, in the United Kingdom, there was sufficient protection against denial of employment on grounds of trade union membership or activity. The Committee of Experts rightfully recalled that Convention No. 98 required that protection appropriate to national conditions should be established but without adding, as it did in its General Survey, that this should also be accompanied by sanctions. This last point was important in their view because international labour standards should be incorporated into extremely varied legal systems so that the ILO could not impose on every Member the same method of incorporation. In this particular case, the United Kingdom was a country with a long tradition of the rule of law and its legal system afforded each individual a whole range of possibilities of access to courts and remedies including compensation and sanctions. Contrary to the conclusion that the Committee of Experts seemed to make, the British legal system provided adequate protection. The Committee's observation also referred to the recommendations of a Parliamentary Select Committee whose recommendations were not implemented. This was, in their view, an internal matter that should be left to the discretion of the Government. They welcomed the fact that the Economic League referred to by the Workers' members was a thing of the past, dissolved without government intervention. The Committee of Experts had noted this with interest and this aspect did not, therefore, call for any particular comment. In respect of the second question dealing with the determination of schoolteacher's pay and working conditions, it was sufficient to remark that, while the existing system might be relatively complex, it was none the less balanced, and it ensured the participation of all the parties and satisfied almost everybody. The Committee of Experts did not make any criticism in this regard. The fact that salary increases of 7.5 per cent had been awarded seemed to indicate that the system had fulfilled its role of ensuring appropriate working conditions for teachers. The Committee of Experts did not share the criticism made by the Workers' members but it expressed the hope that the new system would function in a satisfactory manner. Following an assessment of the results achieved, this Committee might, if necessary, re-examine the question.

The Government representative of Belgium, having noted the progress made on this question, raised the problem of the consequences of the extreme complexity of the United Kingdom legislation in this area which mystified the rights of workers and complicated parliamentary and international supervision, as had already been mentioned by the Government of Belgium in the context of the application of the European Social Charter. The permanent link established between employment and industrial relations raised questions about the extent of the will of the Government to establish a clearly defined framework for industrial relations. This Committee ran the risk of entering into an analysis of this case if, at the same time as it took note of satisfactory comments, it uncovered more new subtleties in the very complex machinery. The Committee was justified in requesting a clarification and stabilization of industrial relations in the United Kingdom in the interest of everyone.

The Government representative of the United Kingdom wished to respond with regard to two points in relation to the complexity of the legislation. One of the pieces of legislation which provided for the protection of trade union members was actually the one being debated today. This showed that all the legislation was not targeted against trade unions. He also wished to reassure the Government member of Belgium and pointed out there had been Consolidation Acts, the most recent being the 1992 one, which actually helped clarify the law. He expressed his disappointment that a letter coming from one of the six teachers' trade unions and sent to the TUC had not been passed to them prior to discussion in this Committee. The right procedure would have been for this Committee to endorse the normal standard procedure which would have been for that letter to be passed to the Government so that it could report on the matter to the Committee of Experts, and if necessary, back to this Committee. It seemed to him that to bypass this procedure would undermine the functioning of Convention No. 144 and this should be reflected in the conclusions of this Committee under the point relating to the issue about the teachers' pay machinery. He wished to stress the point that the views heard today were the comments of one trade union out of six and that the other five unions which had endorsed the procedure of the review body represented some 65 per cent of teachers in service. Surveys of teachers had also consistently identified a higher proportion than that supported by the review body. Even a substantial proportion of the membership of the National Union of Teachers was understood to support the review body approach. There was, therefore, no doubt in his mind that this issue had in fact been resolved in accordance with the wishes of the majority of teachers. He agreed with the suggestion put forward by the Employers' members that the thing to do at this stage was for this Committee to wait and see how that review body operated before, if necessary, this Committee - and certainly before the Committee of Experts - could take account of whether, in fact, the review body operated in a way consistent with the requirements of collective bargaining. With regard to the question of the protection against the ban and denial of employment on grounds of trade union membership, he expressed gratitude to the approach adopted by the Employers' members and noted that the Workers' members did not comment on the provisions of Section 1 of the 1990 Act which, in his view, clearly banned discrimination in recruitment on grounds of membership or non-membership of the trade union. He reaffirmed that the United Kingdom industrial tribunal system provided both the procedures and remedies which offered effective protection to individuals who believed they were the victims of such discrimination. Thus he stated that the United Kingdom Government was in full compliance with Articles 1 and 3 of Convention No. 98.

The Workers' members agreed with the Government member of Belgium when he pointed out the complexity of the United Kingdom's legislation in this area. The Committee of Experts had in the past made this point as well as having noted that the amount of legislation was in itself repressive. They disagreed with the views of the Employers' members that the first part of the observation of the Committee of Experts was almost laudatory. They also pointed out that, for lack of other remedies, trade unionists had to resort to all sorts of ways to deal with the Economic League, including the use of libel laws which, in Great Britain, required an enormous amount of money. Referring to the statement made by the Government representative that one of the Acts in question was in fact designed to help trade unions, they said that a certain clause in that Act was already the subject of a complaint before the Committee on Freedom of Association. With regard to the question of the determination of schoolteachers' pay and working conditions, they said they had nothing against conducting tripartite consultations, as suggested by the Government representative, but considered there was no harm in also continuing to review in this Committee and the Committee of Experts the problems created by the review machinery which, it should be recalled, was imposed without consultation on the teachers.

The Employers' members said that by not discussing the points raised by the Government representative and instead debating directly with them, the Workers' members had implicitly admitted that the substance of this case was limited. Without reverting back to the general question of the manner by which international labour standards were to be incorporated into national jurisdictions, they would agree with the Workers' members that it would be an ideal situation if there were, in general, only a few simple laws. That, however, would not prevent criticism of countries where the legislation was simple but insufficient. In the case of the United Kingdom it was clear that the protection appropriate to national conditions required by the Convention was assured by the access to courts provided to every victim of discrimination. The Committee of Experts did not, unfortunately, indicate the particular inadequacies of the current legal provisions. With regard to the system of fixing the working conditions of teachers, there was nothing to indicate that collective bargaining was being hindered at the moment. If there were such hindrances, this Committee would return to the matter.

The Workers' members referring to the Conclusions adopted by the Committee regarding the application by the United Kingdom of Convention No. 98 regretted that some elements were not included in these conclusions because of the objections of the Employers' members. This was happening for the second time this year whereas in similar circumstances in the past the Committee had none the less adopted its conclusions and registered, as well, the reservations of the Employer's members. In their view, this constituted a dangerous situation that the officers of the Committee should address in an informal meeting.

The Committee noted the report of the Committee of Experts, the statement made by the Government representative and the information he provided on the practical application of the Convention as well as the discussion. The Committee noted certain developments with regard to the strengthening of protection against anti-trade union discrimination and the establishment of a new mechanism to deal with teachers' wages and working conditions. The Committee expressed the hope that the Government would continue to provide the ILO's supervisory bodies with all detailed information on measures taken concerning the legal protection against anti-trade union discrimination and on guaranteeing the unfettered rights of teachers to negotiate freely their working conditions with their employers.

The Workers' members referring to the Conclusions adopted by the Committee regarding the application by the United Kingdom of Convention No. 98 regretted that some elements were not included in these conclusions because of the objections of the Employers' members. This was happening for the second time this year whereas in similar circumstances in the past the Committee had none the less adopted its conclusions and registered, as well, the reservations of the Employer's members. In their view, this constituted a dangerous situation that the officers of the Committee should address in an informal meeting.

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

The Committee takes note of the observations of the Trade Union Confederation (TUC) dated 31 August 2022 that, in addition to issues examined by the Committee in the current comment, denounce anti-union dismissals in the fishing sector as well as anti-union discrimination and interference cases in the hospitality sector. The Committee requests the Government to provide its comments in this regard.

Scope of application of the Convention. Workers in the platform economy. The Committee previously requested information on the developments on the collective bargaining rights of workers in the platform economy (gig economy). The Committee welcomes the Government’s indication that workers in the gig economy have the same rights as workers in other sectors, including the right to form unions and the right to collective bargaining and that itsupports partnerships between trade unions and gig economy businesses, including the decision by two important gig economy businesses to recognize the GMB trade union for collective bargaining in May of 2021 and 2022 respectively. The Committee requests the Government to continue to provide information on the measures taken to promote collective bargaining at all levels in the gig economy sector, including on the number of collective agreements signed in this sector and the number of workers covered.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes the TUC’s allegations on the dismissal and subsequent replacement by a maritime transport company of 786 unionised seafarers with agency supplied non-unionised crews with lower pays, in contravention of the statutory obligations regarding due notice and consultation. The Committee further notes the TUC’s allegation that the existing legislation does not deter employers from dismissing union members benefitting from better terms and conditions of employment under a collective agreement, provided they pay the compensation required by law for cases of unfair dismissal. Recalling that, under Article 1 of the Convention, the legislation must provide for dissuasive sanctions in case of anti-union discrimination, the Committee requests the Government to reply to these comments.

Article 4. Promotion of Collective Bargaining. Having noted the abolition of the Agricultural Wages Board (AWB) in England, the Committee previously requested the Government to inform on the measures taken to promote collective bargaining in the agriculture sector along with statistics on the collective agreements concluded. The Committee notes that the Government indicates that independent trade unions can be recognized by employers for the purpose of collective bargaining through the procedures laid down in the Employment Relations Act and that 14 per cent of workers in the agriculture, forestry, and fishing industries had their pay determined by collective agreement. The Committee also notes the TUC’s indications that both workers and employers expressed concerns regarding the consequences of negotiating terms and conditions individually without proper processes or guidelines due to the abolishment of the AWB, which was established to set terms and conditions of employment for workers. Observing the low level of collective bargaining coverage in the agricultural sector and recalling the obligation, under Article 4 of the Convention to promote collective bargaining at all levels, the Committee requests the Government to inform on the specific measures taken to promote collective bargaining in the agricultural sector as well as to provide details on the number of collective agreements in force and the percentage of workers covered by them in the sector.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee takes note of the observations of the Trades Union Congress (TUC) received on 31 August and 4 September 2018, and the Government’s comments thereon. It notes, in particular, the information provided by the Government on the TUC’s allegation in relation to collective bargaining rights of the workers in the gig economy. The Government points out that it is in the process of reviewing employment status more widely as part of its consideration on modern working practices. The Committee requests the Government to provide information on any development in this regard.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes with interest that the Public Contracts (Scotland) Regulations 2015 and the Procurement (Scotland) Regulations of 2016 provide for the exclusion from public calls for tenders any business found to have breached the Blacklists Regulations 2010 of the Employment Relations Act 1999 (Blacklists) that prohibits the compilation, use, sale or supply of blacklists containing details of trade union members or persons taking part in trade union activities, the purpose of which is to discriminate against workers on grounds of trade union membership and activities, and that this exclusion remains in force until such time that the business has taken appropriate remedial measures, or a period of three years has elapsed since the exclusion occurred, which is the maximum timescale allowed under European Union (EU) law.

Article 4. Promotion of collective bargaining. The Committee notes the TUC’s indication that, while the Agricultural Wages Board (AWB) still operates in Scotland and Wales, this body was abolished in England as a result of the Enterprise and Regulatory Reform Act 2013, section 72. The Committee notes the TUC’s affirmation that: (i) the AWB is a tripartite body that was established in 1917 to set terms and conditions of employment for workers in the sector; (ii) the high prevalence of small enterprises in the agriculture sector makes it difficult for workers to exercise their right to bargain collectively; and (iii) the abolition of the AWB in England has therefore a very strong impact on the possibility to collectively define the conditions of employment in the agriculture sector and is contrary to the obligation of promoting collective bargaining set by Article 4 of the Convention. The Committee notes the Government’s statement that: (i) the separate minimum wages in the agriculture sector imposed a number of difficulties on workers and employers and that before the AWB was abolished, many farm-based businesses had to operate both systems (the agricultural minimum wage and the national minimum wage) depending on the activities undertaken by workers; and (ii) the abolition of the AWB has freed farmers from an unnecessary regulatory burden and did not result in them losing essential employment protections, as there is a broad employment legislation in place, both nationally and at the EU level, which protects and benefits workers in all sectors of the economy. Recalling the promotional obligation stemming from Article 4 of the Convention, the Committee requests the Government to provide information on the measures taken to promote collective bargaining in the agriculture sector as well as on the number of collective agreements in force and the percentage of workers covered by them in the sector.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, noting the Government’s indication that it had become aware of blacklisting within the construction sector, the Committee had requested the Government to inform it of the development of regulations in relation to blacklisting of individuals on the basis of their trade union membership or activities. The Committee notes with satisfaction the coming into force of the Employment Relations Act 1999 (Blacklists) Regulations 2010 that prohibit the compilation, use, sale or supply of blacklists containing details of trade union members or persons taking part in trade union activities, the purpose of which is to discriminate against workers on grounds of trade union membership and activities. The Government further indicates in its report that regulations to prohibit blacklisting of trade unionists in Northern Ireland were approved by the Northern Ireland Assembly on 10 June 2014; and that it has referred allegations of continued blacklisting made by the Scottish Affairs Committee in July 2013 and April 2014 to the Information Commissioner’s Office.

The Committee notes that the Trades Union Congress has raised a number of points in relation to the effectiveness of the regulations in a communication annexed to the Government’s report and invites the Government to respond to these concerns and to provide information on any complaint filed and ensuing decisions taken by the public authorities. The Committee welcomes the steps taken by the Government to refer the allegations of continued blacklisting in Scotland to the Information Commissioner’s Office. The Committee requests the Government to provide information on developments in this regard and to submit elements relating to the effectiveness of the blacklisting prevention mechanism in the entire territory.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and acts of interference. The Committee has noted in previous comments the Trades Union Congress (TUC) assertion that, where the incumbent trade union is non-independent, a request for derecognition can only be made by an individual worker and not by an independent trade union, and that the independent trade union has no right of access to the workplace and no right to communicate with the workforce while derecognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the derecognition process. With regard to the first point, the Committee notes the Government’s indication that there is nothing to prevent the non-incumbent union from assisting the workers involved in making the application for derecognition and that the Government does not believe that it is appropriate for a non-incumbent trade union to be able to make a request of its own volition (the Government refers to its report for the period 2006–08 where it considered the issue of inter-union disputes). As to the second point, the Government indicates that its previous report is again relevant – specifically, the explanation about the importance of avoiding the destabilization of industrial relations through inter-union disputes. The Committee takes note of the TUC’s comments on these Government observations: (1) an individual worker who initiates a request to derecognize a non-independent staff association (the very existence of which is a violation of ILO Convention No. 98, Article 2), runs the risk of dismissal or other sanctions, a risk that could be relieved if a bona fide trade union with members in the workplace could make the request (the TUC considers that the only reason that explains that a trade union should be denied this power is to discourage requests from being made); (2) the Government does not explain why such a request would be inappropriate; and (3) the TUC notes that in the law of unfair practices introduced in 2004, a complaint may be made by a trade union against the employer and that the creation of a non-independent trade union to deny bargaining rights to a genuinely independent trade union is another form of unfair practice and recognized as such in other ILO member States. The Committee requests the Government to reply to these comments.

In its previous observation, the Committee noted with satisfaction that, in order to try to combat the practice of some employers and employment agencies of using “blacklists”, the Employment Relations Act 1999 (Blacklists) Regulations 2010 were introduced by the Government and came into force on 2 March 2010. The Committee notes that, in its 2010 communication, the TUC expressed its concern as to the narrow scope and limited range of the regulation. In particular, it alleged that: (1) there is no right not to be blacklisted per se; (2) there is no definition of what is meant by trade union activities for the purposes of the regulations; and (3) no provision is made to compensate victims of blacklisting, a practice which has been exposed to have taken place over the last 30–40 years. The Committee notes that these concerns are echoed in the International Trade Union Confederation’s (ITUC) 2010 and 2011 communications. The Committee notes the observations of the Government with regards to the TUC’s comments.

As to the first comment, the Government indicates that the regulations define a prohibited list (i.e. a blacklist) and prohibit the compilation, dissemination and use of prohibited lists. They also make it unlawful for organizations to refuse employment, to dismiss an employee or otherwise cause detriment to a worker for a reason related to a prohibited list. Finally, the regulations make it unlawful for an employment agency to refuse a service to a worker for a reason related to a prohibited list. The Government believes that this constitutes an effective, targeted and proportionate response to combat blacklisting and has seen no evidence that convinces it that a blanket right is necessary.

With regard to the second aspect of the TUC comment, the Government indicates that the term “trade union activities” is widely used in trade union law in the United Kingdom but has not been defined in statute or as a result of case law. It explains that it was felt that it would have been confusing to introduce a definition in the regulations, and the Government does not consider, in any case, that it would be appropriate for this to apply to unofficial industrial action as such action is especially disruptive since it is not sanctioned and controlled by a trade union. The Committee notes that the TUC indicates that: (1) the Government’s response acknowledges concerns that the term “trade union activities” is limited and confirms that the TUC is right to be anxious about the narrow scope of the Regulations; and that (2) many of the blacklisted workers identified in 2009 by the Information Commissioner’s Office were blacklisted because of trade union-related activities (usually exposing health and safety abuses on worksites) which were not necessarily sanctioned by their trade union.

Concerning the third aspect of the TUC’s comment, the Government considers that there are already protections under the Data Protection Act 1998 – for example, under section 13 of the Act, individuals are able to sue the data controller for damages and distress as a consequence of any failure by the data controller to comply with the Act’s provisions. It is a well-established principle in the United Kingdom that new regulations are not given retrospective effect. The Committee takes note of the TUC’s comments that: (1) it understands that the Data Protection Act 1998 does not make provision for compensation, which is why a number of blacklisted workers have been making what in most cases have been forlorn attempts to use other avenues of legal redress and that, in any event, some of the losses were incurred before the Data Protection Act 1998 came into force in 2000. The TUC is not convinced that provision cannot be made retroactively to compensate victims. The Government in 1982 introduced a retroactive compensation scheme to compensate workers who had been dismissed between 1974 and 1980 because they were not members of a trade union. The TUC queries why the same could not be done today for workers who were on the blacklist and therefore refused employment because they are members of a trade union or engaged in trade union-related activities.

The Committee takes note of the Government’s observation on the ITUC comments that the Government is unaware of any problems following the implementation of the Regulations and is satisfied that they deal appropriately with the issues originally identified.

The Committee requests the Government to reply to the TUC’s additional comments and to indicate any consultations undertaken with the social partners with a view to considering measures for compensating past victims of blacklisting.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the observations of the Government on the 2010 comments of both the International Trade Union Confederation (ITUC) and the Trades Union Congress (TUC). The Committee takes note of the comments submitted by the ITUC in communications dated 31 July and 4 August 2011, as well as those submitted by the TUC in a communication dated 29 August 2012. The Committee requests the Government to provide its observations thereon.

Articles 1, 2 and 3 of the Convention. Shipping sector. The Committee had previously requested the Government to provide its observations on the TUC’s allegation that contracts of employment had been found to expressly forbid individuals from contacting a recognized trade union so as to favour the conclusion of “workforce agreements” with workers’ representatives rather than collective agreements with trade unions, thereby lowering the terms and conditions of employment in the shipping sector. The Committee noted the Government’s indication that it enforces the issues relating to employment contracts in the shipping sector through the Maritime and Coastguard Agency (MCA), entitled to examine contracts of employment, and that it has acted to ensure that the MCA surveyors can readily identify clauses which prevent workers from exercising their rights under the Convention, including through training courses and the MCA Operations Advice Note No. OAN 378 which also addresses this issue. The Committee requested the Government to indicate the number of violations identified within the reporting period and to specify the sanctions applied against the persons responsible for such violations. The Committee notes the Government’s indication in its latest report that the MCA has advised that, for this reporting period, no such violations have been identified. The Operations Advice Note No. OAN 378 continues to be current. In addition, the MCA advises that, once the Maritime Labour Convention, 2006 (MLC,2006), comes into force in the United Kingdom, it will be supported by guidance which will specifically address the right to join a union. The Committee requests the Government to continue to provide information on any developments in this regard.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) a communication dated 24 August 2010 and by the Trades Union Congress (TUC) in a communication dated 28 October 2010. The Committee requests the Government to provide its observations thereon.

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and acts of interference. The Committee recalls that in its previous observation it had noted detailed information provided by the Government on the relevant legislative provisions protecting individuals from dismissal or other detriment in relation to their right to belong to a trade union, participate in trade union activities and use of its services. The Committee had further noted the allegations submitted by the TUC (addressed below) and requested the Government to provide additional information, including judicial decisions, on the protection provided against acts of anti-union discrimination, including those in which the employer’s main purpose is not discriminatory, and against acts of interference.

The Committee notes that the Government reiterates the view it had previously expressed that there exists significant protection of the right of individuals to belong to a trade union, to participate in its activities and use its services, including the right not to be dismissed or suffer other detriment on these grounds. The Government once again refers to sections 145A, 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, as strengthened by the Employment Relations Act 2004, which, among other things, made it unlawful for employers to offer inducements to workers not to belong to a trade union, not to participate in a union’s activities at an appropriate time and not to use a union’s services at an appropriate time. The Committee further notes the Government’s indication that since the last reporting period there have been no significant judicial decisions in this area.

With regard to the specific points previously raised by the TUC, the Committee notes the following information provided by the Government:

(i)    With regard to the allegation that the above-noted protection applies only where the “sole or main purpose” of the employer’s action or failure to act was to discriminate against the trade unionists in question or to discourage them from having their terms and conditions of employment set by collective bargaining, the Government indicates that, in its view, it is extremely important that employers remain free to take the legitimate decisions they believe are needed to run their businesses effectively. The Government points out that, while such decisions would be illegitimate if they infringe Article 11 or other rights under the European Convention on Human Rights, nothing in the judgment of the European Court of Human Rights (ECHR) in the Wilson et al. v. the United Kingdom case was intended to or does prevent employers from taking decisions to reward particular employees more highly than others when the motivation for doing so is to reward such employees in the interests of the business. The Government therefore considers the use of a purpose test to be essential and points out that, under the 1992 Act, it is for the employer to show what his sole or main purpose was. In the Government’s opinion, the use of a sole or main purpose test, coupled with a provision ensuring that the burden is on the employer to show what his sole or main purpose was, achieves the most satisfactory balance and is consistent with the judgment of the Court. The Government points out that Employment Tribunals are accustomed under a number of their current jurisdictions to determining what the employer’s sole or main reason for, or purpose in, doing certain acts is. The Government is confident that tribunals can apply the test sensibly to distinguish between cases where offers are made for the purpose of achieving de-recognition of a union and cases where they are made for the purpose of retaining or rewarding valuable staff.

(ii)   With regard to the TUC’s assertion that the rights provided for in section 145B of the 1992 Act are deficient because they are limited to situations where a trade union is recognized or is seeking recognition, but do not apply where a trade union has been de-recognized, the Government recalls that the Wilson case concerned the situation where offers were made to union members for the purpose of securing that their terms and conditions of employment would cease to be determined by collective agreement. The Government points out that, in the situation dealt with by the ECHR, the employer sought to induce trade union members to give up their existing right to have their terms determined by collective agreement; the employer was seeking to change the status quo and using inducements directed at union members to achieve his purpose. The Government further points out that section 145B is designed to address this situation and stresses that Schedule A1 to the 1992 Act contains a procedure by which a union can obtain recognition for the purpose of negotiations relating to pay, hours and holidays. The existence of this statutory procedure means that offers of the kind in question made to members of a union that is not recognized are ultimately ineffective in achieving their purpose since they cannot fetter the right of the union to request recognition and, if it is refused, to apply for a declaration of recognition under the Schedule. Nor can the making of such offers, even if accepted, affect the rights of union members under the Schedule to support their union’s claim for recognition and vote in favour of it. The effect of paragraphs 156 and 161 of the Schedule is that employees and workers are protected against dismissal and other detrimental acts done by an employer on the ground, among others, that a worker acted with a view to obtaining recognition, indicated support for recognition or acted to secure bargaining arrangements under the Schedule. Furthermore, the Employment Relations Act 2004 amended the Schedule to provide for remedies against an employer or union if either of them does certain things during the period of a recognition ballot with a view to influencing the result of the ballot. These include the making of offers to a worker entitled to vote in return for his/her agreement to vote in a particular way (for example, against recognition) or to abstain from voting.

(iii)  With regards to the TUC’s assertion that the right to complain about infringement of these rights is limited to individual workers and that trade unions cannot complain in their own right, the Government considers that the judgment of the ECHR does not require the creation of such a right. While the Government accepts that the Court held that the rights of the applicant unions had been infringed as well as the rights of the applicant members, it is of the opinion that the infringement of the rights of the applicant unions simply resulted from and was consequential upon the infringement of the rights of their members, rather than an infringement of a free-standing right of the unions. In the Government’s view, it is not necessary to give trade unions a separate remedy in order for the law of the United Kingdom to be compatible with the judgment. The Government therefore considers it sufficient to confer the remedy for acts of the kind that the Court held to infringe Article 11 of the European Convention of Human Rights on those in relation to whom the acts complained of would be done, that is the members of trade unions.

The Committee recalls that it had also noted in its previous comments the TUC assertion that, where the incumbent trade union is non-independent, a request for de-recognition can only be made by an individual worker and not by an independent trade union; and that the independent trade union has no right of access to the workplace and no right to communicate with the workforce while de‑recognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the de-recognition process. The Committee also notes that the ITUC refers to various unfair practices and anti-union tactics in the framework of the statutory recognition scheme. The Committee once again requests the Government to provide its observations thereon.

The Committee notes with satisfaction that, in order to try to combat the practice of some employers and employment agencies of using “blacklists”, the Employment Relations Act 1999 (Blacklists) Regulations 2010 were introduced by the Government and came into force on 2 March 2010. The Committee requests the Government to provide in its next report any relevant information on the application of the Regulations in practice.

Shipping sector. The Committee had previously requested the Government to provide its observations on the TUC’s allegation that contracts of employment had been found to expressly forbid individuals from contacting a recognized trade union so as to favour the conclusion of “workforce agreements” with workers’ representatives rather than collective agreements with trade unions, thereby lowering the terms and conditions of employment in the shipping sector. The Committee notes the Government’s indication that it enforces the issues relating to employment contracts in the shipping sector through the Maritime and Coastguard Agency (MCA), entitled to examine contracts of employment. The Government indicates that, in conjunction with trade unions in the shipping sector, it has acted to ensure that the MCA surveyors can readily identify clauses which prevent workers from exercising their rights under the Convention. A training course was undertaken in conjunction with NUMAST (now Nautilus International) to help MCA surveyors identify any illegal elements in contracts of employment including evidence of terms which expressly forbid individuals from contacting a recognized trade union. Section 3.3.3 of MCA Operations Advice Note number OAN 378 also addresses this issue. The Government indicates that responsible officials are fully aware of the issue and the appropriate course of action when a violation is identified. It therefore considers that no legislative action needs to be taken at this time. The Committee requests the Government to indicate in its next report the number of violations identified within the reporting period and to specify the sanctions applied against the persons responsible for such violations.

Article 4. Statutory recognition procedure. The Committee had previously requested the Government to indicate the measures taken or envisaged to review, in consultation with the social partners, the Trade Union and Labour Relations Act (TULRA), so as to ensure that the provisions on trade union recognition for collective bargaining purposes do not prevent trade unions in workplaces where no union meets the percentage requirements for recognition (40 per cent) from engaging in collective bargaining on behalf of their own members on a voluntary basis. The Committee notes the Government’s indication that the vast majority of collective bargaining in the United Kingdom is undertaken by voluntary agreement between the parties. The Government believes that voluntary collective bargaining, which by definition is acceptable to both parties and shaped by them, is preferable to arrangements imposed by law. The statutory procedure was established as a fall-back to deal with those situations where voluntary agreement cannot be reached and was designed to encourage the voluntary resolution of questions which arise during the recognition process. The Government reiterates that, under the statutory procedure, trade unions may seek recognition for collective bargaining purposes on behalf of workers in a particular bargaining unit. A bargaining unit may or may not be a workplace (and all the workers therein), but it may also be defined in other ways, such as all the workers of a particular type across some or all of the employer’s workplaces, or just some workers in one occupational category at one workplace. A trade union specifies the bargaining unit for which it seeks recognition when making an application to the Central Arbitration Committee. The Government points out that, under the statutory procedure, two or more trade unions may make a joint application for recognition. Thus, the statutory procedure in effect encourages minority trade unions, where they exist, to collaborate with each other, enabling them to obtain recognition through combination, where none would otherwise achieve it individually. The Government points out that, where no union meets the 40 per cent statutory requirement, unions are still free to seek and reach a voluntary recognition agreement with an employer in the usual way. The Government explains that the current recognition procedure has become an established feature of the United Kingdom’s industrial relations system and does not need to be reviewed. 

Collective bargaining in small businesses. The Committee’s previous comments concerned the TUC’s indication that businesses employing less than 21 workers are excluded from the statutory procedure for union recognition, the effect of which has been to deny employees of small businesses the right to be represented by a trade union (Schedule 1A, paragraph 7(1), of TULRA). The Committee had noted the Government’s opinion that it would be inappropriate to subject very small organizations to the detailed legal requirements of the statutory recognition procedure. It further noted the Government’s indication that trade unions were recognized by some very small employers through voluntary agreement and that such recognized trade unions could operate very effectively in micro-businesses. The Committee had noted the TUC’s proposal to have a simplified statutory procedure for small businesses which would reconcile the fundamental right of workers with the circumstances of the business and invited the Government to examine this matter with the social partners. It had further requested the Government to furnish statistical data on the number and coverage of collective agreements, particularly in small businesses. The Committee notes the Government’s explanation that the statutory recognition procedure is not the only method whereby collective bargaining can be established in the United Kingdom: the dominant method being for bargaining arrangements to be established voluntarily and by agreement between the parties and that there are no legal provisions or other measures to discourage smaller businesses from entering such voluntary agreements. It is therefore a matter for trade unions to use the freedom they possess to organize a workforce and persuade employers to recognize them.

With regard to the number and coverage of collective agreements, the Government points out that, historically, the incidence of union membership and collective bargaining in very small organizations is relatively low. It further points out that, as collective agreements and collective bargaining arrangements are not registered with a public authority, there are no reliable figures on the number of such agreements, though the expectation is that the figure would run into very many thousands. The extent of collective bargaining is measured by periodic surveys (such as the large-scale Workplace Employment Relations Survey – WERS), or by the more regular household survey (principally, the Labour Force Survey – the LFS). The last WERS was undertaken in 2004 and another is planned to take place in 2011.The latest LFS data for 2009 indicates that 32.7 per cent of all employees, and 73.7 per cent of trade union members, had their pay affected by collective agreements. Workplaces with more than 50 employees had higher collective bargaining coverage at 45.4 per cent than those workplaces with fewer than 50 employees (19 per cent). The Government acknowledges that recognized trade unions can operate very effectively in micro-businesses. The Government reiterates that its Strategic Partnership Fund helped finance an innovative research project with three trade unions with membership in small organizations – Amicus (GPMU section), the Knitwear, Footwear and Allied Trade Union and Community – to identity the positive effects recognized trade unions can bring to small enterprises. This work was completed in April 2007. The report can be used by trade unions and employers to better understand the role of trade unions in very small organizations. This report is the property of the unions concerned and is therefore disseminated by them. Finally, the Government considers that recognition arrangements in the United Kingdom are in full compliance with the provisions of the Convention. It therefore has no plans to review the statutory recognition procedure with regard to its application in small business.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and interference especially in the context of the statutory recognition procedure. In its previous comments, the Committee noted the Trades Union Congress’s (TUC) indication that protection against anti-union discrimination (unfair practices) only applies in the framework of the organization of a recognition ballot, whereas a lot of the misconduct by an employer may take place at a much earlier stage, where the union is trying to organize, recruit and build up some kind of structure. The TUC had expressed concern at the lack of protection in practice against unfair practices by employers taking place long before the balloting period, in order to discourage any organizing campaign by a union (including threats of closure of the plant and individual job loss, actual dismissals, pay and promotion inducements, holding a company ballot in advance of an independently conducted ballot, denial of any access to a union including preventing leaflets being given to the employees, holding anti-union meetings at the workplace, one-on-one meetings, changes to the bargaining unit – either splitting it or combining it with others). The TUC had also indicated that the statutory procedure for recognition allows an employer to prevent an application for recognition to be made by an independent trade union by setting up an in-house company union and voluntarily extending to it recognition rights; the TUC referred to the case of POA and Securicor Custodial Services Ltd., where the union was denied the right to recognition – even though it had the support of a majority of members in the unit – as the employer had concluded a recognition agreement with a staff association.

The Committee notes that according to the Government, individuals are protected from dismissal or other detriment in relation to their right to belong to a trade union, participate in the activities of the union at an appropriate time and make use of a union’s services (sections 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), and articles 73 and 136 of the Employment Rights (Northern Ireland) Order 1996). These provisions were strengthened by the Employment Relations Act 2004 and the Employment Relations (Northern Ireland) Order 2004, which made it unlawful for an employer to offer inducements to workers not to belong to a trade union, not to participate in a union’s activities at an appropriate time and not to use a union’s services at an appropriate time (section 145A of TULRA and article 77A of the 1996 Order inserted by the 2004 Act/Order). The rights apply equally to situations where a union is recognized and where it is not recognized for collective bargaining purposes. The Government emphasizes that these rights provide adequate protection for trade unions in advance of making requests to employers for recognition. In addition to this, protection applies during the statutory recognition procedure (paragraphs 156 to 162 of Schedule A1 of TULRA/paragraphs 156–162 of Schedule 1A of the 1996 Order). However, according to the Government, given the existence of many trade unions in the United Kingdom, the statutory procedure has been designed to ensure that it is not used as a vehicle for counter-productive tendencies to rivalry. Thus, a union cannot have its application for recognition accepted and processed if its proposed bargaining unit overlaps in any way with the bargaining unit of a trade union which is already recognized. In situations where the incumbent trade union is non-independent, it may be derecognized through an application by the workers covered by the recognition arrangement. It is permissible for a non-incumbent trade union to assist the workers involved in making an application to derecognize the trade union.

The Committee notes that according to the latest communication by the TUC: (i) the law provides for protection against acts of anti-union discrimination, but only where this is the sole or main purpose of the employer; an act of anti-union discrimination is not unlawful where the employer’s purpose is incidentally to discriminate on grounds of trade union membership (section 145A of TULRA requires the “sole or main purpose” of an employer’s offer to be the inducement of the worker to give up trade union membership or participation in trade union activities; moreover, section 152 of TULRA provides that a dismissal shall be regarded as unfair where the reason for it – or, if more than one, the principal reason – is trade union membership or activities); (ii) although workers have the right not to have inducements made to give up collective bargaining rights, this applies only where the union is recognized or seeking to be recognized (section 145B of TULRA); it does not apply where the union has been derecognized; (iii) where an employer makes inducements to workers to give up union representation, the union has no standing to bring legal proceedings to complain about the violation of its rights (sections 145A(5)–145B(5) of TULRA); this is an important omission, particularly in cases where workers who have been the subject of the inducement are unwilling to institute individual proceedings; and (iv) where the incumbent trade union is non-independent, a request for derecognition can only be made by an individual worker and not by an independent trade union; the independent trade union has no right of access to the workplace and no right to communicate with the workforce while derecognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the derecognition process. The Committee finally notes that the International Trade Union Confederation (ITUC) refers to various unfair practices and anti-union tactics in the framework of the statutory recognition scheme.

The Committee requests the Government to indicate in its next report additional information, including judicial decisions, on the protection provided against acts of anti-union discrimination, including those in which the employer’s main purpose is not discriminatory, and against acts of interference.

Shipping sector. The Committee notes the issues raised by the TUC in relation to the shipping sector under Conventions Nos 147 and 180. Thus, according to the TUC, contracts of employment have been found to expressly forbid individuals from contacting a recognized trade union so as to favour the conclusion of “workforce agreements” with workers’ representatives rather than collective agreements with trade unions, thereby lowering the terms and conditions of employment in this sector. The Committee requests the Government to provide its comments in this regard.

Article 4 of the Convention. Statutory recognition procedure. The Committee’s previous comments raised the need to ensure that under a system for nominating an exclusive bargaining agent, if there is no union representing the required percentage to be so designated (the majority vote in a ballot in which at least 40 per cent of the bargaining unit must vote in favour of union recognition), collective bargaining rights should be granted to all unions in a unit, at least on behalf of their own members. The Committee notes that according to the Government, bargaining units in the United Kingdom cover both those who are members of the recognized union and those who are not members. In other words, trade unions are rarely, if ever, recognized just to bargain on behalf of their own members only. This tradition ensures that bargaining structures are relatively simple and that workers in the same job or occupational category are not paid by reference to different systems of pay determination. There are thus no plans to introduce any new provisions enabling minority trade unions to bargain on behalf of their own members only. Nevertheless, minority unions are still entitled to provide important services to their members, in relation for instance, to disciplinary or grievance hearings.

The Committee once again recalls that problems of conformity with the principle of the promotion of collective bargaining, set out in the Convention, may arise when the law stipulates that a trade union must receive the support of the majority of the members of a bargaining unit to be recognized as a bargaining agent, since a union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee requests the Government to indicate the measures taken or envisaged to review in consultation with the social partners, the TULRA as amended by the Employment Relations Acts of 1999 and 2004, so as to verify that the provisions on trade union recognition for collective bargaining purposes do not prevent trade unions in workplaces where no union meets the percentage requirements for recognition (40 per cent), from engaging in collective bargaining on behalf of their own members on a voluntary basis.

Collective bargaining in small businesses. The Committee’s previous comments concerned the TUC’s indication that businesses employing less than 21 workers are excluded from the statutory procedure for union recognition, the effect of which has been to deny the employees of these small businesses the right to be represented by a trade union (Schedule 1A, paragraph 7(1) of TULRA).

The Committee notes that according to the Government, it would be inappropriate to subject very small organizations to the detailed legal requirements of the statutory recognition procedure. Trade unions are recognized by some very small employers through voluntary agreement. The Government acknowledges that recognized trade unions can operate very effectively in micro businesses. To demonstrate this fact, the Government helped finance an innovative research project with the UNITE union and community trade unions to identify the positive effects recognized trade unions can bring to small businesses. That research project was completed in April 2007, and the Government would expect it to be used by trade unions and employers to understand the role of the trade union in very small organizations. In addition, the Advisory, Conciliation and Arbitration Service (CAS) and the Labour Relations Agency (LRA) in Northern Ireland, which are Government-funded, can provide advice to employers and trade unions on the issues which arise in any matter relating to the establishment and operation of union recognition arrangements. CAS/LRA can also provide conciliation services, at the joint request of both parties, to resolve any difficulties or disputes about trade union recognition.

The Committee notes that according to the latest comments made by the TUC, it would be possible to have a simplified statutory procedure for small businesses which reconciles the fundamental rights of the workers with the circumstances of the business. The TUC is also not aware of the UNITE/community unions innovative research project to which the Government refers; it wonders whether the report recommends any changes to the law.

The Committee emphasizes that in accordance with the free and voluntary nature of collective bargaining, it should be possible for all workers and employers, with the possible exceptions contained in Article 6 of the Convention, to engage in collective bargaining. The Committee invites the Government to examine this matter with the social partners and requests it to furnish statistical data on the number and coverage of collective agreements, particularly in small businesses.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) and the Trades Union Congress (TUC) in communications dated 10 August and 31 August 2006, respectively.

Articles 1, 2 and 3 of the Convention. The Committee notes the TUC’s indication that, although the Employment Relations Act of 2004 provided protection against acts of anti-union discrimination and interference on the part of employers, these protections apply only after an application for recognition under the statutory procedure has been made. The TUC further states that the legislation dealing with unfair practices thus only applies during a ballot period, whereas a lot of the misconduct by an employer may take place at a much earlier stage where the union is trying to organize, recruit and build up some kind of structure: it is at this time, when the union is trying to establish itself, that it is most vulnerable and therefore in need of stronger protection than is currently provided. Recalling that the provisions of the Convention provide that appropriate machinery shall be established in order to guarantee adequate protection against both acts of anti-union discrimination and acts of interference in trade union affairs, the Committee asks the Government to indicate the measures taken or envisaged to ensure that trade unions are afforded these protections, even before they have applied for recognition under the statutory procedure.

Article 4 of the Convention. 1. The Committee takes note of the TUC’s statement that the statutory procedure for union recognition requires a union to have a majority of the workers in the bargaining unit as members, or a majority vote in a ballot in which at least 40 per cent of the bargaining unit must vote in favour of union recognition. In this respect, the Committee recalls that problems of conformity with the Convention may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, as a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that, under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee requests the Government to indicate the measures taken or envisaged to ensure that, in cases where no union has been able to obtain the required majority for bargaining, the organizations concerned should at least be able to conclude a collective agreement on behalf of their own members.

2. The Committee notes the TUC’s indication that businesses employing less than 21 workers are excluded from the statutory procedure for union recognition, the effect of which has been to deny the employees of these small businesses the right to be represented by a trade union. The TUC states that workers employed in small businesses are free to join a union, but the fact that it has no legal right to be recognized by an employer due to the exemption from the statutory procedure acts as a disincentive to workers joining one. The TUC also indicates that this exclusion is of major concern in the printing industry, where there are a large number of small businesses. In the light of the concerns expressed above by the TUC, the Committee requests the Government to indicate in its next report the measures taken or envisaged to further promote collective bargaining in small businesses.

3. The Committee notes the TUC’s indication that the statutory procedure for recognition does not apply where there is already a voluntary recognition agreement between an employer and a trade union. The TUC expresses its concern that an application may not be processed under the statutory procedure where there is a recognition agreement with a trade union that is not independent. Although there is a procedure to derecognize trade unions that are not independent, the TUC states that it is not effective and has never been used successfully. The TUC indicates that in practice, therefore, this allows an employer to set up an in-house company union and extend to it recognition rights, thereby preventing an application by an independent trade union from being made, and refers to the case of POA and Securicor Custodial Services Ltd., where the union was denied the right to recognition – even though it had the support of a majority of members in the unit – as the employer had concluded a recognition agreement with a staff association. The Committee requests the Government to reply to the TUC’s concerns respecting this issue.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information provided by the Government in its report.

1. Article 1 of the Convention. In its previous report, the Committee had requested the Government to keep it informed of progress made in adopting draft regulations pursuant to section 3 of the Employment Relations Act, 1999, prohibiting blacklisting on the basis of union membership or activities. The Committee notes the information provided by the Government that draft regulations for consultation were published in February 2003 to ban the compilation, use or dissemination of blacklists of trade unionists and that the Government intends to finalize the draft regulations, ready for their prompt introduction, should evidence emerge of such lists being drawn up or there being a demand for them. The Committee notes that the Government indicates that its consultations did not reveal any evidence that blacklisting was reappearing, and that it considers it would be inappropriate to regulate against a practice when there is no evidence to suggest that the problem has existed for over a decade. Nevertheless, the Government stresses that it is not complacent in this matter and, by finalizing the regulations and holding them in reserve, will be able to act swiftly should the need arise.

The Committee recalls its view that practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights and that governments should take stringent measures to combat such practices (see General Survey on freedom of association and collective bargaining, 1994, paragraph 211) and expresses the hope that the Government will take the necessary steps to ensure that blacklisting of trade unionists may not become a problem in the United Kingdom in the future by ensuring that the practice is prohibited. The Committee requests to be kept informed of developments in this regard in the Government’s future reports.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report.

Articles 1 and 4 of the Convention. In its previous comments, the Committee had raised concerns with respect to insufficient protection for workers against anti-union discrimination, with such lack of protection having harmful implications for the promotion of collective bargaining, and had requested the Government to indicate any steps taken to review and amend section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), which did not include protection for making use of the essential services of the union (e.g. collective bargaining), and section 13 of the Trade Union Reform and Employment Rights Act 1993 (which had amended section 148 of the TULRA), which allowed an employer to wilfully discriminate on anti-union grounds, so long as another purpose was to further a change in the relationship with all or any class of employees.

The Committee notes with satisfaction some legislative amendments, which are developed below.

The Committee notes the information provided by the Government that section 31 of the Employment Relations Act 2004 amends section 146 of the TULRA, so that it is unlawful to subject a worker to detriment short of dismissal for making use of trade union services at an appropriate time and that the phrase "trade union services" is defined to mean services made available to an employee by an independent trade union by virtue of his membership of the union, including an employee consenting to the raising of a matter on his behalf by an independent trade union of which he or she is a member.

The Committee also notes the Government’s indication that section 31(5) of the Employment Relations Act repeals subsections (3)-(5) of section 148 of the TULRA so that detriment to employees by employers is prohibited even if the employer’s purpose was to further a change in the relationship with all or any class of his or her employees.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report.

1. Article 1 of the Convention. The Committee had previously noted that section 3 of the Employment Relations Act, 1999, enabled the Secretary of State to make regulations prohibiting blacklisting on the basis of union membership or activities and had expressed the hope that such regulations would be adopted rapidly. The Committee notes with interest the Government’s statement that it intends to consult on draft regulations stressing that workers should enjoy real and effective protection against dismissal in 2001. The Committee requests the Government to keep it informed of progress made in adopting these draft regulations.

2. Article 4. In its previous comments, the Committee had noted with interest that the Employment Relations Act contained provisions for trade union recognition for the purposes of collective bargaining. The Committee had also requested the Government to specify how voluntary collective bargaining was promoted where (i) there were less than 21 employees; or (ii) a majority of the workers were not members of a particular union and the union did not secure 40 per cent of the workers in the bargaining unit. Finally, as recognition rights appeared to be granted for a period of three years, the Committee had requested the Government to provide information concerning the applicability of a collective agreement that did not expire at the same period as the period of recognition. The Government indicates that in smaller firms, union membership and recognition are usually low. However, the Advisory, Conciliation and Arbitration Service (ACAS) stands ready to assist organizations of all sizes to improve their industrial relations and can help parties resolve differences about union recognition where they arise. This assistance can be given to small companies and larger organizations where a recognition application under the statutory procedure has been unsuccessful. With regard to the 40 per cent statutory threshold in recognition ballots, the Government states that it will review this level, as well as the small firms’ exemption from the statutory recognition procedure, after the statutory procedure has fully bedded down. No date for the review of these thresholds has yet been set. Finally, the Government provides clarification to the effect that the recognition awarded under the statutory procedure lasts in perpetuity, unless the parties agree otherwise or the employer succeeds in using the parallel statutory procedure to derecognize the union. However, an employer cannot use the derecognition procedure until three years have elapsed since the recognition award was made. At the time of derecognition, where a collective agreement covers substantive terms and conditions of employment, these will normally be incorporated into the contracts of employment of the individual workers comprising the bargaining unit. The Government points out that the contracts of employment will continue in existence after derecognition and can only be amended with the consent of the workers concerned. The Committee takes due note of this information.

3. With respect to the Schoolteachers’ Review Body (STRB), the Government indicates that under the School Teachers’ Pay and Conditions Act, 1991, issues relating to pay, working time and professional duties are considered by the independent STRB. The latter’s recommendations are contained in its report to the Secretary of State for Education and skills each year. The Government’s normal practice is to implement STRB recommendations. The various trade unions representing teachers, as well as employer interests (and the Department for Education and Skills) submit their recommendations to the STRB and the Secretary of State consults the trade unions and employer interests on those recommendations before they are put into legislation. According to the Government, consultation frequently results in detailed adjustments to guarantee fairness in the operation of changes to teachers’ pay and conditions. For example, when performance threshold assessment was introduced with effect from September 2000, the Government worked closely with the unions to build in procedures for teachers who felt they had been wrongly assessed and for teachers in unusual settings. Another example was the introduction in April 2001 of a discretion for schools to pay recruitment and retention allowances in the form of a lump sum at the end of a period of unbroken service of up to three years. Consultation with the employers and unions enabled the Government to work out the necessary details including pension implications and compassionate circumstances in which a lump sum could be paid despite a break in service. Finally, the Government indicates that it does not place financial limits on the STRB but gives details of the local government funding settlement and says that the Secretary of State wants pay settlements that are affordable. The last pay round’s recommendation for a general increase of 3.7 per cent was implemented in full. Finally, the Government points out that total spending for schools in England will increase by £1.9 billion in 2001-02. The Committee notes this information and trusts that the review machinery will continue to function in practice in a manner that will not hamper the freedom of  collective bargaining.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report. The Committee also notes the comments of UNISON and the Trades Union Congress (TUC) dated 13 November 2000 and 14 November 2001, respectively, and would request the Government to provide its observations thereon.

Articles 1(2)(b) and 4 of the Convention. In its previous comments, the Committee had raised concerns with respect to insufficient protection for workers against anti-union discrimination, with such lack of protection having harmful implications concerning the promotion of collective bargaining. The Committee had in particular requested the Government to review and further amend section 146 of the Trade Union and Labour Relations (Consolidation) Act, 1992 (TULRA), and section 13 of the Trade Union Reform and Employment Rights Act, 1993 (TURER) (amending section 148 of TULRA).

The Committee had previously noted with interest that section 146(1)(a) of the TULRA had been amended by virtue of the Employment Relations Act, 1999, thus making it unlawful to subject an employee to detriment short of dismissal by omission, and not only in cases of a positive action, due to trade union membership or activities. The Committee notes the Government’s statement that prior to this amendment, discrimination by omission on the grounds of trade union membership was not prohibited. The Committee notes, however, that the amendment does not address the judicial interpretation whereby the protection of discrimination on the basis of trade union membership under section 146(1)(a) was found not to include protection for making use of the essential services of the union (e.g. collective bargaining). The Committee therefore once again requests the Government to indicate in its next report any steps taken to review and further amend section 146 of TULRA.

With respect to TURER, section 13, the Committee had previously noted that this provision provided for protection against action short of dismissal on grounds related to union membership or activities. The Committee had noted, however, that the provision allowed an employer wilfully to discriminate on anti-union grounds, as long as another purpose was to further a change in the relationship with all or any class of employees and had considered that such a provision could be considered as tantamount to condoning anti-union discrimination. The Government indicates that it is of the opinion that, in the United Kingdom’s long standing "voluntarist" system of industrial relations, employers should be free to seek to change their bargaining arrangements and the law allows them to do so. The Government adds that section 17 of the Employment Relations Act contains provisions to deal with situations where employers coerce workers to opt out of agreements and provides protection against dismissal or detriment where workers refuse to opt out of a collective agreement which applies to them. In this respect, first of all, the Committee would recall that the Government has an obligation under the Convention to provide for protection against anti-union discrimination and to promote collective bargaining; however, current legislation allows employers to offer financial inducements to employees to sign personal contracts even though they may be performing identical work as those who refuse to sign, thereby discriminating against the latter. Moreover, while the Employment Relations Act states that the Secretary of State may make regulations concerning cases where a worker is subjected to detriment by the employer or dismissed on the grounds that the worker refuses to enter into a contract that includes terms which differ from the terms of a collective agreement which apply to that worker, the Committee notes the Government’s statement that no date for introducing such regulations has been set. In these circumstances, the Committee once again requests the Government to take steps to review and amend TURER, section 13.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report, including the Employment Relations Act, 1999 attached thereto, which came into force on 27 July 1999.

1. Article 1 of the Convention. In response to the Committee's previous request for information from the Government concerning the denial of employment on the grounds of trade union membership or activities, the Government states that, although there is little evidence that the practice of "blacklisting" is widespread, the Employment Relations Act, 1999, contains powers to enable the Government to make regulations to prohibit the compilation, dissemination and use of lists which contain information about trade union membership or activities with a view to their being used by employers or employment agencies in recruitment, or used to discriminate against trade unions in employment. The Government states further that the Data Protection Act, 1998, places restrictions on the holding and use of information concerning an individual's trade union membership, although this will not fully apply to manual data until 2007. The Committee notes with interest that pursuant to section 3 of the Employment Relations Act, the Secretary of State may make regulations prohibiting blacklisting on the basis of union membership or activities. The Committee expresses the hope that such regulations will rapidly be adopted and requests the Government to keep it informed in this regard.

2. The Committee notes that it has in the past commented 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 legitimate forms of industrial action. The Committee notes the Government's indication that the Employment Relations Act contains provisions to increase the protection of those taking lawfully organized, official industrial action. Pursuant to Schedule 5, an employee is deemed to have been unfairly dismissed if the principal reason for the dismissal is that the employee took protected industrial action, but only if the dismissal takes place within eight weeks from the date on which the employee started taking protected industrial action (paragraph 3). The Government states that this eight-week period will allow a reasonable time for the parties to enter detailed and serious discussions in an attempt to resolve the dispute and, therefore, avoid the dismissals. The Committee is of the view, however, that the level of protection remains insufficient, in particular since the legislation allows a worker to be dismissed for taking part in lawful industrial action after eight weeks. The Committee notes in addition that the broad scope of what constitutes unofficial industrial action, resulting from the combination of sections 224 and 237 of the Trade Union and Labour Relations (Consolidation) Act, 1992, and sections 7 and 17 of the Trade Union Reform and Employment Rights Act, 1993, which the Committee has commented upon in the past, has been retained. The Committee requests the Government to take the necessary measures to further amend the legislation to ensure full compliance with Article 1 of the Convention.

3. Article 4 of the Convention. The Committee notes with interest that the Employment Relations Act contains provisions for trade union recognition for the purposes of collective bargaining. The Committee notes that the recognition procedure is only available with respect to an employer employing at least 21 workers (Schedule 1, paragraph 7). The union may apply to the Central Arbitration Committee (CAC) to decide whether a proposed bargaining unit is appropriate and whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit. If the CAC is satisfied that a majority of the workers in the bargaining unit are members of the union, it must issue a declaration that the union is recognized as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit (Schedule 1, paragraph 22). If the CAC is not satisfied that a majority of the workers in the bargaining unit are members of the union, a secret ballot is held (paragraph 23). In order to gain recognition following a ballot, the union must be supported by a majority of the workers voting and at least 40 per cent of the workers in the bargaining unit (paragraph 29).

4. Recalling that if no union receives the requisite level of support, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own workers, the Committee requests the Government to specify in its next report how voluntary collective bargaining is promoted where (i) a majority of the workers are not members of a particular union or the union does not secure 40 per cent support of the workers in the bargaining unit; or (ii) there are less than 21 employees. The Committee also requests to be kept informed of any changes in the degree of support made pursuant to paragraph 29(5) or paragraph 121(6). As recognition rights appear to be granted for a period of three years (and can cease to have effect in other circumstances), the Committee requests the Government to provide information concerning the applicability of a collective agreement that does not expire at the same time as the period of recognition.

5. With respect to the Schoolteachers' Pay Review Body, the Committee notes that the Government has not responded to the comments made by the TUC and the NASWUT in this regard, and requests it to do so in its next report.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report, including the Employment Relations Act, 1999, attached thereto. The Committee observes that the Trades Union Congress (TUC) submitted comments on 15 November 1999 and requests the Government to provide its observations on these comments. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1852 (304th Report, paragraphs 474-498; 309th Report, paragraphs 308-342).

Articles 1(2)(b) and 4 of the Convention. The Committee notes that it has previously raised concerns with respect to insufficient protection for workers against anti-union discrimination, with such lack of protection having harmful implications concerning the promotion of collective bargaining. The Committee had in particular requested the Government to review and amend section 146(1)(a) of the Trade Union and Labour Relations (Consolidation) Act, 1992 (TULRA) and section 13 of the Trade Union Reform and Employment Rights Act, 1993 (TURER) (amending section 148 of TULRA).

The Committee notes with interest that TULRA section 146(1)(a) has been amended by virtue of the Employment Relations Act, 1999, thus now making it unlawful to subject an employee to detriment short of dismissal by omission, and not only in cases of a positive action, due to trade union membership or activities. The Committee notes, however, that the amendments do not address the judicial interpretation whereby the protection of discrimination on the basis of trade union membership under TULRA section 146(1)(a) was found not to include protection for making use of the essential services of the union (e.g. collective bargaining). While the Employment Relations Act states that the Secretary of State may make regulations concerning cases where a worker is subjected to detriment by the employer or dismissed on the grounds that the worker refuses to enter into a contract that includes terms which differ from the terms of a collective agreement which apply to that worker (section 17), the Government gives no indication that such regulations have been made or are in the process of being drafted. The Committee, therefore, requests the Government to indicate in its next report any steps taken to review and further amend section 146 of TULRA or to adopt regulations pursuant to section 17 of the Employment Relations Act to ensure conformity with the Convention.

With respect to TURER section 13 the Committee notes that this provision provides for protection against action short of dismissal on grounds related to union membership or activities. However, the Committee notes that the provision allows an employer wilfully to discriminate on anti-union grounds as long as another purpose is to further a change in the relationship with all or any class of employees. The Committee notes the Government's statement that the wording of the section helps make clear the important distinction between rights to trade union membership and the rights to collective bargaining, and thus serves a useful purpose and ought to be retained. The Government adds that the Employment Relations Act deals with the abuse arising where employers coerce workers to opt out of agreements. While noting the information and explanations provided by the Government, in the Committee's view, such a provision could be considered as tantamount to condoning anti-union discrimination, and the provisions of the Employment Relations Act do not redress this situation. The Committee, like the Committee on Freedom of Association, therefore, calls again on the Government to take steps to review and amend TURER section 13.

The Committee is also addressing a request directly to the Government.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report, as well as the communications from the Career Teachers' Organization (NASWUT) (November 1996), and from the Trades Union Congress (TUC) (November 1996 and 1997). It has also noted the conclusions of the Committee on Freedom of Association in Case No. 1852 (304th Report of the Committee, approved by the Governing Body at its 266th Session, June 1996). Finally, it notes the discussion at the Conference Committee in June 1996.

The Committee recalls that it had asked the Government to review and amend its legislation, particularly sections 13 and 146(1)(a) of the Trade Union Reform and Employment Rights Act (1993), so as to bring it in line with the principles of the Convention, especially with Articles 1 and 4 of the Convention.

It also had commented on the Schoolteachers' Pay Review Body, hoping that its functioning would not hamper free collective bargaining.

It had finally commented on some aspects concerning denial of employment on grounds of trade union membership or activity and dismissals in connection with industrial action, in relation with purported blacklistings and other situations as well, following observations by the TUC.

The Committee notes the Government's statement that it is in the process of examining the issues raised very carefully and that it intends to consult workers' and employers' organizations on employment law issues and on the issues raised in the Committee's observation and that following this review, it will provide a full and detailed response on all the issues in its next report.

The Committee hopes that the intended consultations will be held in the near future and that they will allow for a comprehensive review of the situation and asks the Government to give full details in its next report on the various matters raised in its comments as well as in the TUC's and NASWUT's observations, in the conclusions of the Committee on Freedom of Association and in the discussions at the Conference Committee.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information provided in the Government's report, as well as the communication from NASUWT, the Career Teachers' Organization, dated 25 September 1995, and the communication from the Trades Union Congress (TUC) dated 31 October 1995. It has also taken note of the Government's reply of 21 November 1995 to certain matters raised in the TUC communication. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1730 (294th Report of the Committee, approved by the Governing Body at its 261st Session (June 1994)).

1. Articles 1(2)(b) and 4 of the Convention. The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1730 concerning the effect of section 13 of the Trade Union Reform and Employment Rights Act of 1993 (TURER) as it amended the provisions of the Trade Union and Labour Relations (Consolidation) Act of 1992 (TULRA) dealing with the protection granted to workers against action short of dismissal on grounds related to union membership or activities. The Committee on Freedom of Association concluded, in respect of this amendment, that "inasmuch as its effect is indeed to prevent tribunals from redressing situations such as those in the Wilson and Palmer cases (Associated Newspapers, Ltd. v. Wilson and Associated British Ports v. Palmer), where employees who refuse 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", (294th Report, paragraph 202). The Committee notes the indication in the Government's report that section 13 was not introduced as an attack on trade union membership rights, but rather was intended to ensure that there was no obstacle to the ability of employers to change their negotiating arrangements and to make clear that the right not to be discriminated against on trade union membership grounds did not include or imply a right to have one's terms and conditions negotiated by collective bargaining.

The Committee recalls that, when ratifying Convention No. 98, the Government undertook to take appropriate measures to encourage and promote the full development and utilization of machinery for the voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee considers that section 13 of the said legislation is likely to result in a situation wherein collective bargaining is easily and effectively discouraged instead of being encouraged. It therefore requests the Government to indicate in its next report any steps taken to review section 13 of the TURER and to amend it so that it will not result in the effective discouragement of collective bargaining in contravention with Article 4 of the Convention.

As regards denial of employment on the grounds of trade union activity, the Committee notes that, in March 1995, the House of Lords reversed the Court of Appeal's ruling in the Wilson and Palmer cases. The new point of law in the House of Lords judgement concludes that the term "action" in "action short of dismissal" does not include an omission such as the withholding of a wage increase offered only to employees agreeing to sign individual contracts. Furthermore, while noting with interest the Employment Appeal Tribunal (EAT) decision of February 1995 in the case of Harrison v. Kent County Council which found that an individual refused employment because of his or her trade union activities may be considered to have been unlawfully refused employment because of his or her trade union membership, the Committee has also observed that the House of Lords judgement in the Wilson and Palmer cases gave some consideration to the meaning of trade union "membership" protected against acts of discrimination under TULRA section 146(1)(a). In particular, some of their Lordships concluded that the protection of trade union membership against discrimination did not include protection for making use of the essential services of the union and therefore found that there was no evidence showing that the purpose for withholding the wage increase was to deter the applicant from remaining a member of the union.

The House of Lords judgement in the Wilson and Palmer cases has reinforced the Committee's apprehensions that the legislative protection to be afforded to workers against acts of anti-union discrimination in their employment, by virtue of Article 1 of the Convention, seems to be insufficient. Furthermore, the restrictive interpretation of the meaning of the term "action" and the uncertainty surrounding the understanding of what is actually to be protected from action short of dismissal under TULRA section 146(1)(a) might also aim at contravening Article 4 of the Convention insofar as it does not protect the use of a union's essential services (e.g., collective bargaining) from acts of anti-union discrimination. The Committee therefore would ask the Government to take the necessary measures to amend the legislation to bring it into conformity with Articles 1(2)(b) and 4 so as to ensure effective protection of workers from any action taken by the employer, or omission to act, which would result in penalizing workers for attempting to regulate their terms and conditions of employment through collective bargaining. It would also request the Government to indicate in the future whether any subsequent court judgements have reversed the principle established in Harrison and, if so, to provide a copy of any such judgement.

2. Determination of schoolteachers' pay and work conditions in England and Wales. The Committee notes from the information provided in the Government's latest report that the Schoolteachers' Pay Review Body (STRB) has continued to function according to the same procedures as noted in the Committee's previous comments. It also notes that the Government has accepted the STRB recommendation for a pay increase of 2.9 per cent for all teachers in 1994 as well as its 1995 recommendation for a 2.7 per cent pay increase. It further notes the NASUWT communication wherein the Career Teachers' Organization indicates that it considers that the Review Body created in 1991 for determining teachers' pay is superior to the machinery which previously existed. NASUWT does consider, however, that there are two defects in the STRB: (1) the Government seeks to impose very heavy handed financial limits; (2) the present membership of the Review Body is not representative enough of society in general.

The TUC for its part has stated that the Government's explanation of the practical operation of the STRB does not satisfy the largest British trade union of teachers, the National Union of Teachers (NUT), whose fundamental position remains one of dissatisfaction that the Review Body does not permit for voluntary negotiation.

In its reply of 21 November 1995, the Government recalls that the NUT is only one of six major unions representing the interests of schoolteachers. The Government states that the other five unions, which represent over 65 per cent of teachers, have no objection to the review body principle. Finally, the Government recalls the procedures followed by the STRB and the measures taken to ensure that the positions of the unions are heard.

The Committee notes this information and trusts that the review machinery will continue to function in practice in a manner that will not hamper the freedom of collective bargaining.

3. As regards its previous comments concerning denial of employment on grounds of trade union membership or activity and dismissals in connection with industrial action, the Committee has taken note of the detailed comments made by the TUC and requests the Government to furnish information in its next report in reply to the matters raised in its communication.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the report of the Government, and the communications from the Trades Union Congress (TUC) dated 23 December 1992, 5 February, 28 May and 27 August 1993. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1618 287th Report of the Committee, approved by the Governing Body at its 256th Session (May 1993)].

1. Article 1 of the Convention. (a) Denial of employment on grounds of trade union membership or activity. In reply to the Committee's previous requests for detailed information on the protection available against denial of employment on grounds of past trade union membership or activity, and the remedies available to those subjected to unlawful discrimination and the penalties which may be imposed in cases of such discrimination, the Government refers the Committee to the series of observations it made to the Committee on Freedom of Association in respect of Case No. 1618, and provides certain additional information. The Committee notes with interest from this additional information that the maximum amount of compensation payable to an individual who has been unlawfully refused employment for reasons relating to trade union membership is now 11,000 and that the Economic League has now been disbanded. The Government further states that the Trade Union Reform and Employment Rights Act 1993 will have the effect of enhancing United Kingdom compliance with Article 1. Under United Kingdom law, the right not to be unfairly selected for redundancy on grounds of trade union membership, activities, or non-membership had previously been subject to qualifying conditions; full-time employees in general had to have two years' continuous service. Paragraph 1 of Schedule 7 to the 1993 Act removes these qualifying conditions. Employees selected for redundancy because of their union membership or activities, regardless of their length of service or hours of work, will henceforth be able to complain of unfair treatment and obtain a remedy under the law.

While noting all of the above information and recognizing that United Kingdom legislation, in the form of the Trade Union and Labour Relations (Consolidation) Act 1992, may provide some remedy against acts of anti-union discrimination, the Committee considers that the existence of legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice, and that machinery appropriate to national conditions should be established, where necessary, to ensure respect for the right to organize. In this respect, the Committee, like the Committee on Freedom of Association in Case No. 1618, regrets that the Government did not take any measures to implement the recommendations of the House of Commons Select Committee to the extent necessary to protect workers against discrimination in relation to trade union membership or activities.

(b) Trade Union Reform and Employment Rights Act 1993. In its communications of 28 May and 27 August 1993 which have been referred to the Committee on Freedom of Association (Case No. 1730), the TUC contends that section 13 of the Trade Union Reform and Employment Rights Act 1993 discriminates against trade union members and puts them at a disadvantage in their employment. The Committee notes the Government's statement that it is currently preparing its observations on that case.

(c) Dismissals in connection with industrial action. In its 1992 observation under Convention No. 87, the Committee had once again requested the Government to introduce legislative protection against dismissal and other forms of discriminatory treatment in connection with strikes and other industrial action.

In its response to the Committee's 1992 observation, the Government once again points out that Convention No. 87 is concerned with the protection of the freedom to form employers' and workers' organizations and the rights of such organizations, but that the treatment of individual workers (including the matter of dismissal or disciplinary penalties being imposed by an employer) gives rise to issues that are the subject of other Conventions, including Convention No. 98. The Government further indicates, with regard to the particular points made in the TUC's communication of 22 January 1992 and as quoted in the Committee's 1992 observation, that it is incorrect to state that: (i) the provisions of section 62A of the Employment Protection (Consolidation) Act 1978 can have the effect of denying an employee's right to claim unfair dismissal if the employee is not participating in unofficial action at the time of the dismissal; and (ii) the changes made by the Employment Act 1990 to the law on union liability for acts of organizing industrial action have the effect that a union may be liable for any such act by its "members" (as opposed to its officials or those associated with such officials in particular ways).

The Committee notes however that under section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992, an employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action which includes secondary action (section 224). The Committee further notes that the Trade Union Reform and Employment Rights Act 1993 broadens the definition of what could constitute an unofficial industrial action since section 7 repeals sections 115 and 116 of the 1992 Act (on financial assistance towards expenditure on certain ballots and obligations of employers to make premises available to organize a strike vote) and section 17 introduces the obligation of postal ballot to call for industrial action.

The Committee therefore can only reiterate its previous comments to the effect 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 legitimate forms of industrial action.

Moreover, the Committee would invite the Government and the TUC to provide particulars on the legal and factual situation in this respect, including examples of judicial or quasi-judicial decisions involving the application of the relevant provisions.

2. Article 4. Determination of school teachers' pay and work conditions in England and Wales. In its 1992 observation, the Committee had noted the communications received from various trade union organizations, which mainly concerned the determination of teachers' pay and work conditions in England and Wales, in the light of the School Teachers' Pay and Conditions Act, 1991, which came into force on 22 August 1991, and had stated that it would look into these issues in the light of the observations transmitted by the Government.

In its report the Government states that it took careful note of the Committee on Freedom of Association's consideration of Case No. 1518, and that it had been particularly concerned to ensure that teachers were treated in a way which recognized and enhanced their professional status. It believed that the establishment of a Review Body for teachers was the best way of achieving that. As a result, the Secretary of State for Education and Science announced on 17 April 1991 the Government's decision to withdraw the legislation giving effect to the proposals for negotiating arrangements which had previously been considered by the Committee and the Committee on Freedom of Association. The Government decided instead to establish an independent Review Body to make recommendations on the pay and conditions of teachers in England and Wales. As a result, the situation which was previously criticized no longer exists. The Government further points out that the National Association of Schoolmasters/Union of Women Teachers (NAS/UWT) withdrew its previous complaint in a communication of 17 December 1991 to the ILO, and that all but one of the six national unions representing teachers in service have publicly endorsed the establishment of the Review Body.

With respect to the Committee's request for information on the practical functioning of the new machinery in its 1992 observation, the Government indicates that the Review Body was appointed by the Prime Minister under the School Teachers' Pay and Conditions Act 1991 and reports to him. The Review Body is under a statutory duty to give notice of any matters referred to it by the Secretary of State, and of any directions which he should give to it, to: (i) bodies representing schoolteachers; (ii) associations of local education authorities; and (iii) bodies representing the interests of voluntary schools, and grant-maintained schools. The Review Body also has a statutory duty to afford the above bodies a reasonable opportunity to submit evidence and make representations. In the same way, section 2(1) of the Act obliges the Secretary of State to consult the bodies listed above before making a Pay and Conditions Order. If he fails to consult them, any Order he makes could be challenged through the courts and declared void.

The Committee notes from the Government's report that the Review Body is not subject to a predetermined financial constraint. The Secretary of State is able to give directions to the Review Body as to considerations to which it is to have regard. However, having had regard to those considerations, the Review Body is free to make whatever recommendations it thinks fit. Furthermore, the Government has undertaken to implement those recommendations unless there are clear and compelling reasons not to do so. Where the Government does propose materially to modify the Review Body's recommendations, Parliament has the opportunity to debate and vote on that decision.

As regards the Review Body's working practices, the Government submits that an essential part of the process is that both employers and teacher associations submit evidence and put their case directly to the Review Body. While those elements of a teachers' contract of employment which relate to pay, professional duties and working time are determined by statute on the basis of the Review Body's recommendations, all other conditions of service, such as sick pay and maternity leave, can be decided by negotiation between teachers and their employers. The Government further submits that for the 1992 and 1993 rounds, the Association of Teachers and Lecturers, the National Association of Head Teachers, the National Association of Schoolmasters/Union of Women Teachers, the National Union of Teachers, the Professional Association of Teachers, the Secondary Heads Association, and the National Employers' Organisation for School Teachers:

- submitted written evidence to the Review Body;

- made face-to-face representations to discuss their submissions and the submissions of the other parties (which the Review Body arranged to circulate on receipt);

- submitted written comments on response to the Secretary of State's consultation on the draft Pay and Conditions Order; and

- accepted the Secretary of State's invitation to make any points direct to him (save that the National Association of Head Teachers declined a meeting in 1992).

In both years there was a further period of technical consultation with all teacher unions and the employers' associations on the draft pay and conditions document and its accompanying circular of guidance. In 1993 this has also involved a number of meetings at official level. The Review Body's 1992 Report recommended an across-the-board increase of 7.5 per cent - well above inflation, and significantly higher than current levels of increase in the public and private sectors generally, which the Government accepted in full, providing an additional grant of 60 million to help local education authority employers to meet the full cost of the award. In 1993 the Review Body recommended a general pay increase for qualified teachers of 1 per cent on 1 April 1993, and of 1.5 per cent for unqualified teachers, with a major restructuring of pay arrangements for qualified classroom teachers from 1 September. The Government implemented the new pay structure recommended, but modified the values of the new pay spine from 1 September, and the pay rates applying to some teachers between 1 April and 31 August to ensure consistency with its approach to pay for all employees in the public sector.

The Committee notes the information provided by the Government, and trusts that the new pay review machinery for school teachers will not be applied in practice so as to hamper the freedom of collective bargaining.

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

The Committee notes the communications received from the Government dated 5 July 1991 and 10 February 1992, the National Union of Teachers (NUT) dated 19 and 25 April 1991, the World Confederation of the Teaching Profession (WCOTP) dated 24 April 1991, the Trade Union Congress (TUC) dated 23 October 1991 and 10 January 1992, and the Career Teachers' Organisation (NASUWT) dated 17 December 1991. The trade unions' communications concerned mainly the determination of teachers' pay and work conditions in England and Wales, in the light of the School Teachers' Pay and Conditions Act, 1991, which came into force on 22 August 1991.

The Committee will take these issues into account, in the light of the observations transmitted by the Government and the various trade union organisations concerned, at its next examination of the Convention. The Committee would appreciate being provided with information on the functioning and application in practice of the pay review machinery for school teachers.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the report of the Government, and the communications from the Trades Union Congress (TUC) dated 29 January, 22 May and 21 December 1990. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1518 (275th Report of the Committee, approved by the Governing Body at its 248th Session (November 1990), paras. 53-79).

2. Article 1 of the Convention

With reference to its 1989 observation, the Committee notes with interest that section 1 of the Employment Act, 1990 makes it unlawful for an employer to refuse to employ a person on a number of grounds, including the fact that that person is a member of a trade union. Persons who consider that they have been denied employment on this ground may present a complaint to an industrial tribunal, and if their complaint is upheld the tribunal may award compensation and/or make a recommendation that the employer takes particular remedial action.

The Committee asks the Government to indicate, however, whether section 1 provides protection against denial of employment on grounds of past trade union membership or on grounds of trade union activity. It is also asked to provide a more precise indication of the remedies which are available to employees who have been subjected to unlawful discrimination, and as to the penalties (if any) which may be imposed in respect of such discrimination.

3. Article 4 of the Convention

(a) School teachers in England and Wales

With reference to the provisions of the Teachers' Pay and Conditions Act, 1987, which are not compatible with the requirements of Article 4 of the Convention, in its 1989 observation the Committee expressed the hope that any new arrangements which might be adopted in relation to the determination of pay and conditions of school teachers in England and Wales would enable such teachers to negotiate on a voluntary basis their terms and conditions of employment and their remuneration in accordance with the Convention.

In its report the Government indicates that because of delays in reaching agreement on new negotiating arrangements for teachers in England and Wales it had been necessary to extend the operation of the Teachers' Pay and Conditions Act, 1987 to 31 March 1991. On 23 July 1990, the Secretary of State for Education and Science had announced details of the Government's proposals for new negotiating arrangements to replace the system put in place by the 1987 Act. He had also indicated that it would be necessary to extend the operation of the 1987 Act for a further year to 31 March 1992 because it would not be possible to have the new arrangements in place in time to deal with the April 1991 pay settlement. According to the Government the legislation to establish the new system was introduced in Parliament in November 1990, but had not yet become law.

The Committee notes that the proposed new arrangements were examined by the Committee on Freedom of Association in Case No. 1518. That Committee considered that the new arrangements constituted a step in the right direction in that: (i) they incorporated an element of negotiation between employers and teachers at national level; (ii) that the Government would not be a direct party to the negotiations; and (iii) that there would not be a pre-set financial limit on the negotiations. However, the Committee also considered that the new arrangements were defective in a number of respects. The most important of these was the fact that the Secretary of State still appeared to have an absolute discretion to disregard any bargaining outcome with which he or she disagreed. The Committee also expressed concerns in relation to the role of the proposed Advisory Committee and as to the proposals relating to "opting out" of national level negotiations at the instance of local education authorities.

The present Committee shares the views of the Committee on Freedom of Association in relation to these new bargaining arrangements, and calls upon the Government to re-examine its proposed legislation in order to ensure: (i) that it respects the right of the parties to the collective bargaining process to conclude and to implement their agreement; and (ii) that it encourages and promotes the development and utilisation of collective bargaining machinery in the manner envisaged by Article 4 of the Convention. The Committee also considers that the operation of the Teachers' Pay and Conditions Act, 1987 should not be extended beyond 31 March 1992.

(b) Collective bargaining in the newspaper industry

By its communication of 22 May 1990 the TUC, on behalf of itself and the National Union of Journalists (NUJ), and supported by the ICFTU and the International Federation of Journalists, raises certain concerns as to the lack of legislative provision whereby employers can be obliged to engage in collective bargaining with the trade unions to which their employees belong. According to the TUC the absence of such machinery is not in conformity with the Government's obligations under Article 4 of the Convention. In support of these assertions the TUC provides detailed evidence of the unilateral withdrawal of established negotiating rights in the newspaper industry in circumstances where the union concerned (the NUJ) had no legal means to oblige the employer concerned to negotiate with it, despite the fact that the great majority of journalists employed by the newspaper in question were members of the NUJ.

The Committee recalls that it has always attached great importance to the principle that employers should, for the purposes of collective bargaining, recognise the organisations which are representative of the workers they employ (General Survey, 1983, para. 296). However, the Committee has never taken the view that conformity with Article 4 requires that there must be in place machinery whereby employers can be obliged to negotiate with such organisations. Like the Committee on Freedom of Association, the Committee considers that intervention of this nature would alter the "voluntary" nature of bargaining (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 614).

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes comments concerning the application of the Convention submitted by the Trades Union Congress (TUC) on 29 January 1990. These comments relate to the extension of the Teachers' Pay and Conditions Act, 1987, to 31 March 1991.

The communication of the TUC has been transmitted to the Government for its comments. The Committee will examine the issues raised by the TUC, in the light of the Government's observations, at its next session.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes that sections 23 and 58 (as amended) of the Employment Protection (Consolidation) Act, 1978 provide a measure of protection against discriminatory treatment on grounds of union membership or activity. The Committee also notes that section 24 of the Act provides for the payment of compensation to workers who have been subjected to discriminatory action short of dismissal - such compensation being calculated in accordance with section 26. Sections 67-79, meanwhile, deal with compensation or reinstatement for workers who have been dismissed in contravention of section 58.

These provisions clearly have an important bearing on the effect which is given to Article 1 of the Convention. Accordingly, the Committee asks the Government to provide detailed information as to the numbers and outcomes of cases under sections 23 and 58 in recent years. Where appropriate, the Government is asked to provide copies of relevant tribunal decisions.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee notes the information set out in the report submitted by the Government. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1391 (256th Report of the Committee, approved by the Governing Body in May-June 1988, paras. 39 to 89.).

2. Article 4 of the Convention. The Committee notes that the Government still intends to establish permanent machinery for the determination of schoolteachers' pay and conditions of service by April 1990, when the Teachers' Pay and Conditions Act, 1987 is due to expire. The Committee notes that to this end, the Government has had meetings with the National Employers' Organisation (representing local education authorities), and with each of the teacher unions, in order to hear their responses to its proposals for a new Teachers' Negotiating Group. The Committee also notes that the Secretary of State is presently considering these responses - with a view to preparing draft legislation.

The Committee trusts that any new scheme which may emerge from this process will enable primary and secondary school teachers in England and Wales to negotiate on a voluntary basis their terms and conditions of employment and their remuneration in accordance with Article 4 of the Convention.

The Committee requests the Government to keep it informed of any further developments in this regard.

3. Article 1. The Committee has always taken the view that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination both in taking up employment and during the course of employment and that it covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts) (General Survey on Freedom of Association and Collective Bargaining, 1983, paras. 279 and 256).

The Committee notes that the Employment Protection (Consolidation) Act, 1978 (as amended by the Acts of 1980, 1982 and 1988) provides some measure of protection against discriminatory dismissal on grounds of union membership and activities (section 58), and against action short of dismissal (section 23). However there does not appear to be any legislative protection against denial of access to employment on grounds of union membership or activity. Both the wording of Article 1 and the jurisprudence of the Committee clearly require that workers should have protection against this form of discrimination. Accordingly, the Committee asks the Government in its next report to indicate the measures taken or contemplated in order to bring the situation into conformity with the requirements of the Convention in this regard.