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

Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

Written information provided by the Government

1. The Committee expects that the enquiry will be concluded in the very near future and requests the Government to provide information on any conclusions arrived at in relation to the above-mentioned allegations.

The Undercover Policing Inquiry’s investigations are ongoing and it would therefore not be appropriate for the Government to comment further at this time. The Inquiry will publish its interim report for Tranche 1, the first three sets of evidence hearings, on 29 June 2023. The full details of the Inquiry’s approach and plans, including summaries of evidence hearings and a timetable of its milestones, can be found on its website.

2. Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee trusts that this work will be finalized without further delay and that the Government will provide information thereon in its next report.

The Government is now finalizing its consideration of Sir Ken Knight’s recommendations on electronic balloting for trade union industrial action ballots and will respond in due course. We are unable to provide more details to the Committee at this stage, before our consideration and our response are complete.

3. The Committee urges the Government to review section 3 of the Trade Union Act with the social partners without further delay in order to ensure that the support of 40 per cent of all workers is not required for a strike ballot in the education and transport services.

The Government intends to commence the review of the Trade Union Act shortly. This will include reviewing the ballot thresholds. The review of the Act will consider the views of social partners. We anticipate that this review will conclude in time for the next UK report to the ILO.

4. The Committee once again requests the Government to provide information on the application of this notification in practice, including any complaints made in relation to the handling of this information or its impact on lawful industrial action, and any information on the blacklisting of individuals engaged in lawful picketing. It also requests the Government to provide information on the additional restrictions planned, if any.

The Government reiterates the response it provided last year. The Government intends to commence the review of the Trade Union Act shortly which we anticipate will conclude in time for the next UK report to the ILO. The review of the Act will consider the views of the social partners. The questions asked by the Committee of Experts will be considered as part of that review. The Government would like to stress that blacklisting is completely unacceptable and has no place in modern employment relations in the UK. The Employment Relations Act 1999 (Blacklists) Regulations 2010 made it unlawful for an individual or organization to compile, sell or make use of a blacklist of trade union members or those who have taken part in trade union activities.

5. The Committee requests the Government to provide its comments on the Trades Union Congress (TUC) observations, as well as detailed information on the reform implemented with regard to the Certification Officer’s new investigatory powers, financial penalties that may be imposed, the amount of any penalties that have been imposed since April 2022, and the ceiling on the levy introduced.

Certification Officer reforms: The Government implemented the Certification Officer reforms in April 2022. There were three aspects to these reforms, as follows:

Enhanced investigatory powers: Until April 2022, the Certification Officer (CO) could only make enquiries following a complaint from a trade union member. Since April 2022, the CO has been given further investigatory powers in relation to political funds, union mergers, internal leadership elections and appointing or failing to remove from a union office a person who has been convicted of certain financial offences. The CO now has the power to appoint an inspector and request documents and information. The CO is also able to investigate without a formal complaint being made, including in response to information and concerns raised by third parties.

There are important safeguards. Under the Trade Union Act, the CO will only be able to request the production of documents where there is a good reason to do so and will only be able to appoint an inspector where a higher test has been met; that is, the CO must have reasonable grounds to suspect that a union has failed to comply with a statutory duty. As a public authority, the CO is required to act reasonably. Where representations from third parties are groundless or vexatious, the Government would not expect the CO to spend much time on these. The CO will also be required to give a union the opportunity to make representations before taking any enforcement action.

Though the Government would expect unions to cooperate as a matter of course with the CO’s investigations, should a union believe that a request for documents is unreasonable or that the CO is acting unreasonably, it can challenge the investigatory process by seeking a judicial review. Alternatively, should the CO need to enforce a request for documents, and so on, then the CO will need to demonstrate to the court that they have acted reasonably.

Financial penalties: Where the CO has the power to issue enforcement orders, she is now able to impose financial penalties and conditional financial penalties. Details of the financial penalty amounts are set by regulations, within the maximum (£20,000) and minimum (£200) limits set out in the Act.

The regulations divide the statutory obligations placed on unions into three broad groups, according to importance, and set the maximum financial penalty that may be imposed for each group. The minimum financial penalty for all groups is £200. The CO is able to set the penalty anywhere within these ranges, depending on the circumstances.

“Level 1” financial penalties relate to obligations regarding political funding, the management of political funds, the proper conduct of union elections and personal propriety considerations (for example, making sure no one who has a criminal record serves in a senior union position). The maximum financial penalty for Level 1 is set at £20,000.

“Level 2” financial penalties relate to the obligation to keep a union’s membership register up to date. The maximum financial penalty for Level 2 is set at £10,000.

“Level 3” financial penalties relate to obligations for unions to comply with a member’s request for access to accounting records, to provide the requisite details in their annual return to the CO and to comply with investigatory requirements. The maximum financial penalty for Level 3 is set at £5,000.

For each group, the regulations halve the maximum penalty for unions whose membership is less than 100,000. If a financial penalty is imposed on an individual (such as for failing to comply with investigatory requirements), the maximum penalty is set at £1,000.

An organization may appeal an enforcement decision by the CO to the Employment Appeal Tribunal. The Trade Union Act 2016 also provides for greater judicial oversight of the CO’s decisions by allowing appeals on points of fact as well as law and, crucially on the reasonableness of any financial penalty imposed.

The CO has confirmed that at the time of writing, no financial penalties have been issued under her new enforcement powers.

Levy: The introduction of a levy will bring the CO in line with a number of other regulators, such as the Pensions Regulator and the Groceries Code Adjudicator. The Government has taken steps to ensure the levy is fair and affordable. This includes provisions for exempting lower-income organizations from the levy entirely, and ensuring no organization pays more than 2.5 per cent of its income. In implementing the levy, the Government decided that it will also continue to fund variable costs of the CO, ensuring that the levy is stable. This will help trade unions when budgeting for the levy by preventing large, unexpected increases.

The levy regulations provide that an organization has an obligation to pay the levy once they receive a notice from the CO. They provide for when each year’s notice may be issued, from when a new organization may be considered in scope to be charged and the information that the CO needs to include in the notice.

They identify the expenses which the CO may recover for the levy. The cost of any external inspectors or external legal advice is excluded (so will continue to be funded by Government). Both anticipated and actual expenses may be considered when calculating the levy, provided they are in respect of the financial year to which the levy relates.

The regulations set the rules within which the CO must set the specific levy amounts. The regulations provide for the following:

- The CO must aim to ensure the total amount levied over any three-year period does not exceed actual expenses.

- The CO must aim to ensure the total amount levied on a category of organization (federated trade union, non-federated trade union, federated employers’ association or non-federated employers’ association) broadly reflects the cost of the functions that each category uses. This is because the CO’s functions are focused on different categories of organization; for example, investigations are currently only carried out on non-federated unions, while the administration of annual returns covers all organizations. In practice, the CO will be able to combine categories if they broadly use the same functions.

- For each category of organization, the regulations stipulate that the CO must aim to establish organizations that are exempt from the levy, and then two levels of levy. In this way, the CO will establish three income bands for each category (or combination of categories): lower-income organizations that are exempt from the levy, organizations that will pay one level of levy and higher-income organizations that will pay a higher level of levy. There is a further income band for trade unions to take account of the additional services provided by the CO in their regulation. Details on how the levy should be calculated by the CO can be found in the Trade Union (Levy payable to the Certification Officer) Regulations 2022.

- No organization can pay more than 2.5 per cent of its income.

It is for the CO, the regulator of trade unions and employer associations, to set the levy amounts and income bands within the framework of the CO levy regulations.

The CO has recently issued a levy notice that relates to the first levy period, running from 1 April 2022 to 31 March 2023. In that period, the CO eligible expenses were £656,672. The notice sets out the amounts payable as follows:

- All trade unions, federated trade unions and employers’ associations with an annual income under £81,574 are exempt from paying the levy.

- Every organization with an income over £81,574 will be liable for the basic levy of £2,039.35.

- All trade unions (except the three federated trade unions) with an income exceeding £191,019 will also be liable for the additional levy of £2,736.13 per organization; this means that trade unions charged the basic and additional levies will pay a total of £4,775.48.

- Employers’ associations and federated trade unions with income over £151,657 and trade unions with an income exceeding £261,103 will also be liable for the enhanced levy of £1,752.08. This means that trade unions paying the basic, additional and enhanced levies will be charged a total of £6,527.56. Employers’ associations and federated trade unions paying the basic and enhanced levies will be charged a total of £3,791.43.

Discussion by the Committee

Chairperson – The third and last case on our agenda today is the United Kingdom of Great Britain and Northern Ireland on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). We have more than 17 delegates registered to take the floor; therefore, the reduction of time from 5 to 3 minutes will apply to the delegates concerned. I now invite the Government representative of the United Kingdom to take the floor.

Government representative – On behalf of His Majesty’s Government, I am pleased to present the formal response of Great Britain to the Committee concerning Convention No. 87 on freedom of association and protection of the right to organize.

Let me begin by reiterating the United Kingdom’s commitment to this process. I would like to thank the Committee of Experts for its careful consideration of our legislation as it relates to the Convention. As a nation committed to upholding and advancing international labour standards, domestically and globally, the United Kingdom highly values the role of the ILO. Most recently, for example, we have led the way in negotiating and ratifying the Violence and Harassment Convention, 2019 (No. 190) – the first international treaty to recognize the right of everyone to work free from violence and harassment. Protecting and enhancing workers’ rights whilst supporting businesses to grow, and balancing the interests of the wider public, is a key priority for this Government. We are seeking to find the right balance between workers’ and unions’ rights on the one hand, and the rights of employers and members of the public on the other. This is a principle that is well understood and in line with international Conventions.

The United Kingdom is confident that the balanced reforms under the Trade Union Act 2016 are in line with our international obligations on trade union rights. Specifically, our introduction of ballot thresholds, requiring at least 40 per cent support for striking in important public services, addresses the fact that industrial action affects large numbers of members of the public who do not get a say in a strike ballot and are not associated with the relevant trade dispute. The United Kingdom is seeking to balance the rights of people who take industrial action and those who are affected by that action. The Trade Union Act aims to modernize industrial relations whilst promoting a more effective, collaborative approach to resolving industrial disputes.

As there are widespread consequences for the public when industrial action adversely affects public services, the Trade Union Act establishes that strikes in specified “important public services” require the support of at least 40 per cent of those who voted, with a 50 per cent turnout requirement on strike ballots. This is to ensure that where industrial action takes place it has the necessary democratic legitimacy and enjoys the clear support of union members.

The Trade Union Act does not intend to, nor does it, prevent industrial action. Rather, it ensures that there is a reasonable level of participation and support to the benefit of union members, employers, and members of the public. We welcome the opportunity to address the issues raised in the Committee of Experts’ observations, and will now do so in turn:

First, the Committee of Experts followed up on their previous request for the Government to comment on the allegations relating to police surveillance of trade unions. The Undercover Policing Inquiry is ongoing, and so it would be inappropriate for the Government to comment further at this point. The interim report for Tranche 1 of the inquiry will be published later this month, on 29 June 2023.

Second, the Committee of Experts previously requested an update on the measures taken to facilitate electronic balloting. The United Kingdom has said it agrees in principle with the concept of electronic balloting, however, it has concerns about some practicalities. We need to be satisfied that any method of electronic balloting ensures that those entitled to vote have an opportunity to do so, that votes cast are secret and are secure and that the risk of any intimidation, unfairness or malpractice is minimized. The United Kingdom has set up an independent review of electronic balloting for industrial action ballots. We consulted a group of experts and held a round table with trade unions following the review on 23 January 2020, seeking their views on the independent review’s recommendations. The United Kingdom is now finalizing its consideration of those recommendations and will respond in due course. I am sorry, therefore, that at this point in time I am unable to provide more details to the Committee.

Third, I can confirm that the United Kingdom intends to commence a review of the Trade Union Act shortly. This will include reviewing the ballot thresholds. The review of the Act will include consultations with social partners. We anticipate that this review will conclude in time for the United Kingdom’s next report to the ILO.

Fourth, I would like to stress that the United Kingdom takes the firm view that blacklisting is completely unacceptable and has no place in modern employment relations. The 2010 blacklisting regulations make it unlawful for an individual or organization to compile, sell or make use of a blacklist of trade union members or those who have taken part in trade union activities. The review of the Trade Union Act will shortly include a review of picketing requirements. I can confirm that questions asked by the Committee of Experts will be incorporated as part of that review, which we anticipate will conclude in time for the United Kingdom’s next report to the ILO.

And finally, in April 2022, the United Kingdom implemented reforms to the role of the Certification Officer, who is the regulator of trade unions and employer associations. The review of the Trade Union Act will shortly include a review of picketing requirements. I can confirm that questions asked by the Committee of Experts will be incorporated as part of that review, which we anticipate will conclude in time for the United Kingdom’s next report to the ILO.

To conclude, the United Kingdom is confident that the provisions in the Trade Union Act pursue a balanced approach and are reasonable and proportionate. The Act strikes a fair balance between the rights of unions and their responsibilities and modernizes trade union law to the benefit of everyone. We look forward to hearing the views of the other Governments, the United Kingdom’s Worker and Employer delegations and other Employers’ and Workers’ representatives during this session. I conclude my opening remarks at this point.

Worker members – In this 75th year of the Convention, it is worth noting that the United Kingdom was the first ILO Member State to ratify it and that our Committee last examined the United Kingdom’s application of it in 2016.

No significant improvement has been recorded since. On the contrary, there has been an acute decline ever since, and this raises serious concerns. While the Government has provided some information to the Committee of Experts on the covert investigatory powers of the police and details of ongoing audits and enquiries, it has failed to comment on the specific allegations made by the Trades Union Congress (TUC) in relation to police surveillance of trade unions and trade unionists. As the Metropolitan Police’s own records show, the United Kingdom has a long history of covert surveillance of trade unions, and for this reason alone the Government must address the TUC’s concerns in full.

Turning to electronic balloting for industrial action, we regret that no progress has been made since we last discussed this in 2016. Unions are prohibited from using means other than postal ballots, such as workplace or electronic voting. This is in spite of unions increasingly using electronic balloting technology for indicative votes on pay claims, for instance. Six years on from a review of e-balloting that recommended pilots as a first step, there has been no formal response to the review.

The fact that unions are required to give seven days’ notice of balloting and then spend time conducting a postal ballot gives a huge amount of time for employers to take measures to reduce the impact of industrial action, and we understand that ministers are proposing now further procedural requirements which would further hinder unions’ ability to take effective industrial action. Is it conceivable that in 2023 trade unions only have the option of postal ballots?

Moving on to the Trade Union Act, we deeply regret that the Government has failed to review section 3 of the Act to ensure that the support of 40 per cent of all workers is not required for a strike ballot in relation to education and transport services, which are, of course, non-essential sectors in the strict sense of the term. Not only has the Government ignored the Committee of Experts, but ministers have also indicated an intention to raise the threshold from 40 per cent to 50 per cent and extend it to all sectors.

In relation to picketing, the Government has again failed to provide the information requested by the Committee of Experts. The picketing requirements under the Trade Union Act discriminate by placing obligations on trade unions that other organizations do not face. In particular, unions are required to disclose the identity and contact details of activists to the police, which may expose them to blacklisting. Given the history of blacklisting in the United Kingdom, this remains a significant risk, and we are also concerned by minsters’ stated plans to place additional restrictions on picketing by setting a limit of six pickets at points of “critical national infrastructure”. All this at a time when further legal restrictions have been placed on the right to protest. These restrictions on freedom of expression, assembly and association are excessive to say the least.

With respect to the powers of the Certification Officer, who is responsible for statutory functions relating to trade unions and employers’ associations, the Government has again failed to review the impact of these provisions with the social partners, as called for by the Committee of Experts. Not only did the review not take place with the social partners in 2021, but the Certification Officer was also given additional powers. These new powers could end up causing unions to get tied up responding to complaints made by hostile employers or campaign groups, particularly during industrial disputes. New investigatory powers will also allow the Certification Officer to demand documents with sensitive information on the slimmest of basis.

Protection for trade union members who take lawful industrial action only extends to 12 weeks. with no guarantee of reinstatement and no prohibition on hiring replacements. Despite an explicit request by the Committee of Experts, the Government has not reviewed sections 8 and 9 of the Trade Union Act. To add insult to injury, last year the Government adopted legislation allowing employment businesses to supply agency workers to replace workers taking industrial action in non-essential sectors, overturning a practice that had been banned since 1973.

It is worth noting that this change was opposed by both employment agency businesses and trade unions alike. There is simply no defensible reason to repeal the ban on using agency workers as strike-breakers. Allowing it could have no other purpose than to weaken and to prevent workers from exercising their right to take action. It would also make it far more difficult for parties in a dispute to resolve their differences and create resentment among workers which would last long after the dispute had ended. It would also put agency workers in a difficult, if not impossible, position.

If the current restrictions were not restrictive enough, a bill requiring minimum services in certain sectors is currently being debated in the Houses of Parliament. The Minimum Services Bill covers the same list from the Trade Union Act corresponding to the important public services. This legislation gives a Secretary of State unlimited power to determine what a minimum level of service should be in these sectors and therefore the circumstances in which, and the extent to which, workers in these sectors can exercise their right to strike. If a strike takes place, an employer will have the power to requisition workers and issue “return to work” orders. The legislation would also remove significant protection for individual workers, exposing them to the risk of dismissal and victimization.

Trade unions will also be required to take reasonable steps to ensure that workers comply with the work notice. This means that unions will be required to take steps to undermine their own actions, not to mention in sectors like rail, where most workers have some critical safety elements to their roles and rely on close teamworking with colleagues to deliver services. Compelling staff to cross picket lines or be dismissed will bring increased risks because a workforce that depends on cooperation for safe working could be demoralized and divided.

Finally, we also note the TUC’s serious concerns relating to the inadequacy of the compensatory mechanisms in place for prison workers and the denial of trade union access by enterprises in the hospitality and other sectors which undermines the right to organize under the Convention.

We urge the Government to halt the introduction of new anti-trade union legislation and immediately undertake a thorough review of its law with the technical support of the ILO in order to ensure full compliance with the right to freedom of association and the right to organize under the Convention. As I said earlier, the first country to ratify this Convention was the United Kingdom, so we would welcome exemplary behaviour from it.

Employer members – The Employer members stress the importance of States’ compliance with the Convention, which, as we know, is one of the ten fundamental Conventions.

The United Kingdom, as we have just heard, was the first to ratify the Convention in 1949. We note that, so far, the Committee of Experts has provided 21 observations since 1989. Today is the tenth time that the Committee has examined the application of the Convention by the Government of the United Kingdom; the last time was in 2016. Since the Committee’s last discussion, the Government of the United Kingdom has undergone a number of leadership changes, something which is not always conducive to systemic stability. Nevertheless, the United Kingdom has long-established and adequate frameworks that allow for matters covered by the Convention to be managed. There are several technical issues relating to this case.

In its 2023 report, the Committee of Experts repeated their earlier request to the Government to review section 3 of the Trade Union Act with the social partners to ensure that the requirement of the support of 40 per cent of workers in strike ballots did not apply to the education and transport sectors. We note that the Government had provided written information to the effect that the Act, including in relation to the ballot thresholds, will be reviewed with the social partners in the future. We urge the Government to complete this work without delay.

We similarly urge the Government to complete the implementation of the recommendations arising from the review of e-balloting conducted in 2017. While, according to the Government, round-table consultations on the recommendations were held with experts and with trade unions, there is otherwise little apparent progress. The Government has indicated that details will be provided after the finalization of its consideration of the recommendations. This should occur without further delay.

Last year, the Committee of Experts requested the Government to provide information on the practice of notifying the police of the identity of activists, the details of any complaints regarding the handling of this information or its impact on lawful industrial action; and information on the blacklisting of individuals engaged in lawful picketing. The Employer members note the Government’s indication that the Trade Union Act, including provisions on picketing requirements, will be reviewed in the future, and that the Government will take into consideration the comments of the Committee of Experts. The Employer members echo this request and ask that the Government provide information on the TUC’s allegations on the progress of this review and whether or not there are any additional restrictions being planned.

On a more general level, let me be very clear about what is stated in Article 3 of the Convention:

“Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof”.

This is the most important element of the Convention, and it is the one that underpins all of the rights that flow from it. However, as for the rest of the observations insofar as they affect or relate to the right to strike, we would remind you that the Employers and many governments, including those on the Governing Body, have on numerous occasions stated that a right to strike is not regulated in, and is not part of, the obligations under the Convention. This being so, we would simply point out that the Government is not actually obliged to take actions requested by the Committee of Experts that are not backed up by the provisions of the Conventions it has ratified. That said, there is nothing wrong with the Government reviewing its own policies on such matters, but any such work should be carried out via social dialogue with the social partners.

Employer member, United Kingdom of Great Britain and Northern Ireland – The UK Employers note the multiple different issues that have been raised in this case both by the Committee of Experts and by Worker members. Unlike many cases heard in the Committee, this one appears to be an effort to encourage the Committee to draw broad conclusions about the practice of freedom of association in the United Kingdom based on a wide range of observations, rather than one specific complaint. That is not a criticism, but it does make the work of the Committee more complex and raises the prospect of the supervisory mechanism being drawn into multiple areas, where the picture may vary.

With that caution in mind, we wish to make the following observations. Let us begin with the obvious. Trade unions have been recognized as lawful in the United Kingdom for over 150 years. As has already been noted, the United Kingdom had no problem ratifying the Convention. The United Kingdom has a strong and free trade union movement and frameworks that allow for the matters covered in the Articles of the Convention to be complied with.

We also note the increased prominence of trade unions in our national debate over the cost of living. The UK Employers’ core position, therefore, is that there is no fundamental issue with the application of the Convention in the United Kingdom. There are, however, some specifics of the case where we feel there may be merit, and I will come to these later. Before we do that, we wish to recall discussions in previous years on the issue of the Committee of Experts making observations regarding the right to strike in the context of the Convention. It is not necessary to repeat those at length, but we will limit ourselves to noting that:

- There remains no consensus as to whether the Convention includes a right to strike. The Employer group position on this is well-known, and we align with the position expressed a moment ago by the Employer Vice-Chairperson, particularly in relation to conclusions from this Committee.

- We do support the consensus between the social partners, as expressed in their joint statement of February 2015, that: “[t]he right to take industrial action by workers and employers in support of their legitimate industrial interest is recognized by the constituents of the ILO”.

- The position held by many in the Government group has been that the right to strike is to be regulated at the national level. We agree with this, and we note that the national-level regulation of the right to strike in the United Kingdom has not stopped the past year having the most strike days of any year of the previous 30.

- We express our concern again at the fact that the Committee of Experts continues to make observations on the right to strike under the heading of the Convention and urge the Committee of Experts to reflect upon the tension that such observations continue to create given that it has led the Governing Body to consider a new Article 37(1) of the ILO’s Constitution referral process to definitively determine this issue.

The work of the Conference Committee is the apex of the ILO supervisory machinery. We believe it is of critical importance that the Committee of Experts, the social partners and Governments continue to affirm and take steps to ensure that this role is not replaced by referral to the International Court of Justice.

We draw the Committee’s attention to the comments of the (then) Employer Vice-Chairperson of this Committee at paragraph 20 of the General Report. We align ourselves with this view and underline the importance of not creating new obligations that are not reflected in the text of the Conventions. We regard the elements of this case concerning the existence of strike ballot thresholds and industrial action e-balloting as being right-to-strike issues, and we anticipate that there will not be a conclusion on these matters in line with convention within the Committee.

But I turn now to matters more specifically related to freedom of association and protection of the right to organize as set out in the Convention. Like our Worker colleague from the United Kingdom, we agree that the regulation of trade unions and employers’ organizations by Governments must be balanced. We note with interest the points that have been raised by the Worker members on the surveillance of unions and the potential link to more recent legislation around protests. We believe more information from the UK Government on these issues – including the reporting of the results of any reviews in a timely fashion – would be worthwhile.

Likewise, a number of points raised in the Committee of Experts’ observations reflect a concern that the UK Government may over-reach itself in trying to regulate free associations, in this case of workers – but the same could equally be said of employers’ organizations. We note the lack of progress on decisions around e-balloting for internal union elections and the concern raised about the scope of the powers given to the CO. These are both areas which would benefit from further social partner discussion at the national level and reporting by the UK Government to the ILO supervisory structures. In both of these areas, we do not necessarily agree with the position of our Worker colleagues from the United Kingdom, but they are proper grounds for national social partner discussions, and these have not meaningfully taken place. The UK Government should rectify this.

There are other examples of this lack of consultation. The Worker Vice-Chairperson mentioned one of them. In the summer of last year, the UK Government removed the ban on agency workers replacing striking workers without consultation of the relevant trade union or sector employer bodies. This happened despite the domestic law requiring that consultation to happen and is now subject to a judicial review in a UK court. A decision is pending on that.

The Worker Vice-Chairperson also mentioned some further issues not included in the Committee of Experts’ observations. I have already referred to one that may come up, being the agency workers and strikes issue. The other major one is the current Minimum Service Levels Bill. We note that this is prospective legislation and is still subject to the Parliamentary process. It would not be proper to take a position on it at this time, and its interaction – if any – with the Convention.

Overall, Chairperson, we remain of the view that the Convention, as drafted by the ILO constituents, is correctly applied in the United Kingdom. Countries vary in implementation legitimately. The Employer members accept that the Worker members have tabled some legitimate issues around social partner consultation and certainly we, as UK Employers, accept that, and that regulation and operation of the system in the United Kingdom does merit more domestic discussion and reporting to the Committee. While we do not necessarily share the starting point of the Workers on each of the issues which have been raised, there is room for meaningful discussion and further information from the UK Government, delivered to the supervisory structures of the ILO.

Worker member, United Kingdom of Great Britain and Northern Ireland – Sadly, it is clear that the UK Government sees unions as a problem, not partners. This does not have to be the case, during the pandemic the Government worked with workers’ and employers’ organizations to create the furlough scheme, which prevented an unemployment disaster. But when it passed, they returned to hostile language and a refusal to consult. They introduce oppressive legislation, on top of the most restrictive trade union laws in Western Europe, that seeks to undermine the fundamental right to strike, interferes with union independence, and they do nothing to promote a climate in which the right to organize can thrive. But, as we sit here in a tripartite committee in the ILO, we would like to remind the Government that we are social partners, not a social problem.

Strikes were at a historical low when the Trade Union Act of 2016 became law, and the United Kingdom ranked well below the OECD average for days lost to strikes. It was introduced to remedy a problem that did not exist. The review of the Trade Union Act promised by the Government comes as a surprise to us, as the information sent to the Committee was the first we had heard about it. It comes just as the Government is trying to push through yet another bill to restrict the right to strike of British workers: another bill which involved no formal consultation with the social partners. What hope do we have, in this context, that any review will be conducted in better faith and with meaningful engagement with workers’ and employers’ organizations?

The Committee of Experts has repeatedly, since 2016, requested that the Government engages with the social partners to remove ballot thresholds in transport and education, mandated by the Trade Union Act, that require 40 per cent support from all those entitled to vote in a workplace for a strike to be legal. No such discussions have taken place. Ministers instead suggested they might consider raising the minimum threshold from 40 to 50 per cent.

The ILO guidance on interpreting the right to strike is clear: it should not be restricted for non-essential services. But the Government is hazy on ILO guidance. Last year, the Secretary of State for Business announced in Parliament that his proposals for minimum service levels (MSLs) were consistent with ILO rules. But the plans are completely at odds with the Committee on Freedom of Association decisions on MSLs, and ministers ignore the context of a highly restrictive environment in the United Kingdom. They plan for ministers to determine exactly what the minimum service will be, a centralized power grab that clearly goes against all Committee on Freedom of Association guidance. In their dedication to not speaking formally to unions, they have ensured that their new legislation cannot possibly pass the test of compliance with the Committee on Freedom of Association, and we look forward to submitting a complaint in the near future. And if Government saw unions as partners, not as problems, it would know workers already take steps to ensure that life-and-limb cover is in place during industrial action. Neither workers’ nor employers’ organizations were adequately consulted before, as my colleague mentioned. The Government abruptly abolished a long-standing prohibition against agency workers being hired to replace strikers. Unions and the employer association for the recruitment industry, issued a joint public statement condemning the law change as “counter-productive, impractical and [putting] workers at risk” our advice should have been sought through formal consultation with the social partners when the idea was first mooted.

Industrial disputes in the United Kingdom are occurring against a backdrop of a cost-of-living crisis unprecedented in recent decades, with inflation averaging over 10 per cent since March 2022.

Union action has won pay rises for workers across the economy that have helped them survive the crisis. Through collective bargaining, firefighters gained a 7 per cent rise. Tanker drivers gained pay rises of 13.5 per cent. Nurses will get a rise of 5 per cent plus a one-off payment of more than £1,500. Lower-paid workers at an insurance firm got 10 per cent rises; more than the better-off after members agreed to prioritize those most in need. Some of these rises were achieved with strikes. Still more were achieved simply because strikes were possible. The alternative to workers exercising their power to increase their share of funds is the recent advice of the Bank of England, which advised British workers to “accept you’re poorer.”

We know the right of workers to strike is crucial to our ability to refuse to accept that we are poorer, when we know record profits are being recorded in our country. Returning to the MSL Bill – in their desperation to reduce the power of workers to defend their own interests, the Government proposes grossly abusing union independence. To plug obvious gaps in its unworkable law – which the Government’s own analysis states will lead to more strikes – the Bill requires unions to take “reasonable steps” to ensure that their members – even those who have voted democratically for strike action – go to work. If they do not, the strike would become illegal, risking ruinous fines for the union: the cap for damages was raised last year to £1 million. And legal protections would be withdrawn from all those taking part in the strike action – whether or not they had been ordered into work.

The 2016 Committee asked the Government to review increased investigatory powers for the Certification Officer – the regulator for trade unions and employer associations – to ensure they were in conformity with the Convention. Although they delayed their implementation for several years, no significant changes have been made. And, once again, no formal consultation with the social partners took place before its surprise introduction in 2021.

We would say the Government was using a sledgehammer to crack a nut, but perhaps in this case they are using a steamroller to crack a sesame seed. Complaints against unions totalled just 30 last year, of which only 4 were upheld. This is the situation that the Government seeks to remedy by introducing a process that will deprive unions of their members’ money to the tune of more than £1 million. We fear that could be deliberately used to tie unions up in time consuming and expensive processes. Promising, as the Government did in its submission to the Committee, that if this happens vexatiously, we can resort to a judicial review – a time consuming and expensive process – is not, perhaps, the reassurance the Government thinks it is. The Convention is very clear: we have the right to elect our representatives without interference. The law – since 1989 – says that all general secretaries, presidents and executive members of trade unions must be elected. Although we should have the right to draw up our own constitutions, as democratic organizations we have no issue with that. However, it goes further and dictates the way in which these elections take place, namely that they should be conducted by post.

The landscape for democratic participation is very different 34 years after this provision was drafted. According to the UK Office of National Statistics, 92 per cent of people in the United Kingdom use the internet. Use of the postal service however is not, for many, a daily experience, and for some it carries many difficulties. It is worth noting that in 2022 the Prime Minister of the United Kingdom was effectively, through a vote of Conservative Party members, elected by an electronic ballot. Subjecting unions to stricter controls than the Prime Minister through an archaic ban on our right to elect our representatives in full freedom is unacceptable. And yet, the Government says of the 2017 Sir Ken Knight review into all forms of union e-balloting, that it “is now finalizing its consideration of [the] recommendations.”

This would be more encouraging if they had not used almost the exact same phrase in a letter to the TUC 14 months ago. Given they have now had Sir Ken’s review for 6 years, we respectfully request that the Government finalizes its considerations with more urgency.

Sadly – as the Committee of Experts note – the United Kingdom has a long and sorry history of surveillance and blacklisting of trade unionists. A welcome inquiry into the issue of “Spycops” infiltrating unions is ongoing.

With this in mind, we hoped to have legislative guarantees that no such interference would happen again. But when the Government introduced the Covert Human Intelligence Sources (Criminal Conduct) Bill (2021), it opposed an amendment specifically excluding trade unions from its main provisions – namely that undercover agents of the security services can be authorized to commit crimes. It is also in view of this that we have concerns over Trade Union Act stipulations that picket coordinators must hand their details to the police, and that the CO can request sensitive documents.

Viewing unions as a problem perhaps explains why the United Kingdom does not take “all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise”, as set out in the Convention. While we note also that the Committee on Freedom of Association has said: “Governments should guarantee the access of trade union representatives to workplaces… so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization", in practice in the United Kingdom no such guarantees exist. Paranoia about the intentions of unions, perhaps encouraged by intemperate language of the Government, has resulted in companies in the hospitality and online retail sectors taking extreme measures when they know unions are trying to speak to workers and in one bizarre case, refusing to let real union reps speak to staff, but offering to hire actors to pretend to be union reps to see if workers were interested in unions without actually exposing them to the real thing.

We are frustrated that we have had to return to the Committee to discuss long-standing issues relating not just to the right to strike, but to basic principles of the independence of the social partners.

As the Convention and accompanying guidance make clear, a government’s role is to create conditions necessary for workers and employers to form organizations, including by promoting the benefits of doing so. But it is not their role to choose, in any way, what form these organizations decide to take, and it cannot seek to control them. But it can, and should, engage with them, in formal, structured social dialogue, especially on issues connected to the ILO Conventions, including the industrial relations framework in which we operate.

Finally, we hope the UK Government will have listened carefully to our arguments and accept that perhaps there are things it could do better if it was prepared to work with, rather than against, its social partners, and to seek their advice – and that of the ILO – in keeping within the bounds of its international commitments.

Worker member, Italy – The Committee of Experts has shared concerns over the lack of clarity regarding the application of minimum service levels under the Minimum Services Bill. This legislation would place severe and unacceptable restrictions on the fundamental right of a worker to take industrial action to defend their pay and conditions. It would allow the ministers, by regulation, to impose minimum service levels on services within six sectors.

Italian workers believe that negotiation, sectoral bargaining, and social partnership are always the best way of resolving a dispute. In the framework of the UK industrial relations systems, imposed minimum services levels would, instead, aggravate and prolong disputes.

The UK Government has declared that the MSL Bill would align national legislation with that of the other European countries. We would like to disprove this. Unlike workers in the UK, workers in Italy enjoy the protection of national sectoral collective bargaining agreements, setting minimum standards on workers’ rights for whole industries, covering more than 90 per cent of the workforce in the public and private sectors. These agreements are underpinned by the freedom to take strike action without disproportionate restrictions.

In fact, in Italy Law No. 46 of 1990 provides a general definition of the concept of “essential public service”, by focusing on the list of personal rights that should be unfailingly guaranteed through the provision of essential public services. But it is the social partners, through collective agreements, that define the list of minimum services during industrial action. In the event of a disagreement, a national and independent committee examines and assesses breaches of the provision after having heard social partners.

As enshrined in the Convention and clearly outlined in the digest of the cases of the ILO Committee on Freedom of Association, “the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations”.

We therefore urge the UK Government to repeal the Minimum Services Bill and create an environment where social partners can discuss and negotiate the terms of the industrial action in a climate free from interference and intimidation.

Worker member, Spain – I am also speaking on behalf of the General Federation of Labour of Belgium. The United Kingdom has some of the harshest anti-union legislation in Western Europe, meaning that workers in the United Kingdom cannot exercise their legitimate right to protest in the manner they deem appropriate. Moreover, we can see how this Government wishes to curtail that right even further and limit the capacity for action of representatives of the working class, that is, their trade unions, prompting the Conference Committee to make numerous requests of the executive of the United Kingdom, including in relation to the Trade Union Act.

It is shameful to witness realities such as blacklists, which, unfortunately, this Committee has addressed on other occasions. Blacklists like those seen in Guatemala, in Colombia, in Belarus. Blacklists like those used in Spain by the dictatorship that forced my organization into exile. Blacklists that sully the Declaration of Philadelphia as recalled in the Preamble to the Convention, which states that “freedom of expression and of association are essential to sustained progress.”

In this seat of tripartism, of negotiation and of agreement, at the ILO, it is difficult to understand a Government that legislates unilaterally on key labour relations matters, including industrial action, without considering the opinions of the stakeholders, avoiding the social dialogue that brings such excellent results, even in relation to such a sacred fundamental Convention as this one. As rightly expressed by the Director-General of the ILO on this very case, social dialogue is particularly important during the current economic downturn. Here we can see exactly the opposite approach.

Form is content. The way in which authority is asserted expresses will. I mentioned some bad examples earlier, now allow me to talk about some good ones, about how in Spain we have succeeded, through tripartite social dialogue, in rolling back pernicious legislation such as laws that also criminalized strikes. Again, I emphasize the value of the words of the Director-General, Mr Houngbo, to describe how in a series of interconnected crises such as those that we have experienced in my country, not only have we survived, but we have made progress. Negotiating, with the will of the constituents, working together to secure success and social justice.

The desire that we can see to limit the right to strike and weaken the rights of persons who exercise that right jeopardizes the Trade and Cooperation Agreement between the United Kingdom and the EU which requires respect for freedom of association. That Agreement requires the UK Government to fulfil its obligations towards the ILO and the Council of Europe. Should it fail to do so, there will be very negative consequences for businesses and for jobs. Despite the benefits of negotiation, in this case the Government has opted for a vacuum.

This case, which relates to the violation of a fundamental Convention, should serve to encourage the UK Government to put things right and support the spirit of the ILO to promote the progress, peace and social justice that it itself decided to ratify almost 100 years ago.

Employer member, United States of America – Let me please begin by noting my sincere appreciation for the rich and diverse comments and written submissions in this case. I will keep my comments both brief and targeted. This case involving the United Kingdom raises a well-worn matter: whether the right to strike is contained within the text or understanding of Convention No. 87. We wish to reiterate the reality that the text of the Convention does not contain any rules, nor any mention at all, of the right to strike. We also wish to note the reality that including language on the right to strike was quite clearly contemplated by the Convention’s drafters and also that those drafters made the unequivocal and considered decision to leave out any mention of the right to strike in the Convention.

As the applicable report from the 1948 ILC states: “the proposed Convention [87] relates only to the freedom of association and not to the right to strike, a question which will be considered in connection with Item VIII (conciliation and arbitration) on the agenda of the Conference. In these circumstances it has appeared to the Office to be preferable not to include a provision on this point in the proposed Convention concerning freedom of association”. The text and legislative history of the Convention are thus eminently clear: the Convention does not, and deliberately so, include the right to strike because, as the Government group shared in their position statement of March 2015, “[t]he scope and conditions of this right are regulated at the national level.”

We note our agreement with the Government group. We also thus must recall our disagreement with the Committee of Experts’ views concerning the Convention and the right to strike. National governments can, and should, legitimately determine their own approach to the right to strike, freely guided by their national needs and priorities, and not be held to follow the Committee of Experts’ recommendations. This right need not, and should not, be prescriptive at the global level, as national governments should – consistent with their sovereign authority – craft regulation that honours this right in a manner that best suits their domestic contexts and within the confines of existing law and practice.

Worker member, Canada – I am speaking today on behalf of the Commonwealth Trade Union group in addition to Canadian unions. Convention No. 87 is vitally important to ensuring the right of workers’ and employers’ organizations to arrange and administer their internal affairs without interference from the public authorities. Despite assurances of the Government, we remain concerned with the potential for interference in the internal affairs of trade unions contained in the expanded investigatory powers of the Certification Officer.

The Officer’s investigatory powers will now extend to political funds, union mergers, internal leadership elections and appointing or failing to remove from union office a person who has been convicted of specific financial offences. We note that the Officer can investigate without a formal application or complaint being made, including in response to information and concerns raised by third parties. We are concerned that this provides an opportunity for groups motivated by political animus towards unions or individual union leaders to harass and compel unions to expend energy and resources responding to complaints, particularly, during legitimate industrial disputes. The appointed inspector can require the production of any documents and information the inspector believes may in some way, be relevant to union compliance with an obligation.

We are also concerned that the new levy imposed on unions to cover the expenses of the Officer creates perverse incentives that promote interference in internal trade union affairs. Since the levy is structured to cover the Officer’s expenses, the level and rate of increase of resources available to hire staff, pay remuneration and provide accommodation, equipment and other means are directly tied to the number of investigations undertaken. The Government also allows financial penalties of up to £20,000 to be summarily imposed in the case of statutory breaches. There are no published criteria for the specific level of penalties to be imposed, with this left completely to the discretion of the Officer.

These changes were implemented in April 2022, without warning and after minimal engagement with social partners. We call on the Government of the United Kingdom to engage with the social partners without delay in order to address these concerns and to ensure the Government fully complies with its obligations under the Convention.

Worker member, Finland – I have the honour to speak on behalf of the Nordic trade unions. Unfortunately, the issues under the scrutiny of this Committee today are nothing new. The case covered by the report of the Committee of Experts continues the sad story of anti-union legislation, obstacles for genuine collective bargaining, excessive regulation of industrial actions and even hostility on the part of the authorities towards trade unions, the same story we have been hearing from over the years.

Many of the points raised by the Committee of Experts deserve attention in their own right. For example, the Government recently increased the maximum amount of fines that can be imposed on unions in relation to strikes that are considered unlawful, in a manner that can only be described as excessive. Fines up to £1 million are more than capable of generating an intimidating effect and inhibit legitimate trade union activities.

Nevertheless, here I would specifically like to address one key aspect of the freedom of association, that is, the consultation of trade unions – or in this case, the lack of it.

As it has been emphasized by the Committee on Freedom of Association on multiple occasions, the freedom of association should not be interfered with by States. At the very heart of the right is that the social partners should be able to carry out their activities in full freedom. What can, and should, be encouraged by the States is the principle of consultation and cooperation between public authorities and employers’ and workers’ organizations alike. The most representative employers’ and workers’ organizations should be consulted at length on matters of mutual interest, including everything relating to the preparation and application of legislation concerning matters relating to them.

This is something we in the Nordic countries are very accustomed to. We share a common experience that genuine trust between the social partners and the Government, along with the enabling atmosphere for collective bargaining, is something that should be pursued instead of being discouraged. Genuine consultation of social partners and mutual respect among all parties is not a threat. It is an opportunity.

Therefore, we are deeply worried about the prevailing circumstances in the United Kingdom. The retained EU Law Bill, which was enacted without a due consultation process, allows for the deletion of secondary legislation derived from EU law with little Parliamentary oversight or influence – not to mention any consultation or direct engagement with the social partners. A significant part of the legislation that is now set out to be brutally eradicated or rewritten deals with matters affecting trade unions: consultation and union recognition in relation to collective redundancies and transfers of undertakings, just to name a few.

What we find the most concerning is that if such plans are set into motion without due concern for proper consultation with the social partners, such excessive reforms will easily result in incompatibilities with ILO Conventions. We urge the Government to proceed with ultimate caution and to ensure that fundamental rights of workers are still complied with.

Worker member, United States of America – In the United Kingdom unions are legally required to conduct key votes, such as elections of union leaders and whether to take industrial action, by postal ballot alone. As the Committee of Experts’ report notes, this restriction is plainly at odds with Article 3 of the Convention which “guarantees the right of workers’ organizations to select their representatives in full freedom, organize their activities and formulate their programmes”. In our modern digital age, there is no reasonable justification for maintaining this antiquated restriction on unions’ internal balloting procedures. The postal ballot requirement also suppresses turnout among young workers or those who are simply away from home for long periods of time. A 2017 government-commissioned review recommended a pilot e-balloting programme, but the UK Government has yet to take any action despite repeated calls by the Committee of Experts.

I would also like to address the steady stream of anti-union comments that have come from high-ranking officials in several UK Governments over the past few years. In response to UK trade unions exercising their legal right to strike, several ministers have publicly compared trade unions to terrorists “holding the country hostage” or gangsters “bribing” their members to go on strike. Chair, this kind of anti-union rhetoric poisons the well of social discourse and undermines the spirit of the Convention.

The Sunak Government would do well to end the name-calling and legislative attacks and instead treat UK trade unions like the essential social partner they are. In the United States, we have seen the benefits of a different approach first-hand. The Biden Administration has created a formal task force to promote worker organizing and collective bargaining across the Federal Government and appointed trade unions to a range of advisory bodies, from trade policy to artificial intelligence. The result has been unmistakeably positive, with a rise in public opinion of trade unions and greater willingness by the private sector to engage in social dialogue and collective bargaining. To conclude, we call on the UK Government to adhere to the recommendations in the Committee of Experts’ report and abandon any legislative proposals that would undermine workers’ fundamental rights under the Convention.

Worker member, Colombia – I am speaking on behalf of the Colombian trade union movement and the Trade Union Confederation of the Americas. We wish to recall that freedom of association is a fundamental right intended to promote and defend workers’ economic and social interests.

As a corollary of that fundamental right, striking is a right, not a fact. Democratic States, regardless of their level of development, recognize that conflict is natural in a pluralist society and must not restrict it in an authoritarian manner, but ensure that the mechanisms required to resolve it are in place. That is, they must guarantee workers’ and unions’ effective exercise of the right to strike, free from sanctions of any kind.

Therefore, given that freedom of association is a fundamental right recognized by international human rights instruments, it is inconceivable that its exercise should be subject to a range of police checks and restrictions that hinder it and instil fear in activists.

Specifically, there is no legitimate reason to subject trade union activities to police surveillance or to require trade union members’ identities to be communicated, a practice that could facilitate the use of blacklists and absolute discretion for the public authorities.

Moreover, the Committee of Experts has made repeated observations on the need to review article 3 of the Trade Union Act to amend the requirement for the support of 40 per cent of all workers in strike ballots in education and transport services, which promotes excessive interventionism in the independence of trade union organizations. The UK Government should eliminate these restrictions.

Worker member, Zimbabwe – We are so worried about the intentions of the UK Government to unilaterally make changes to the United Kingdom’s strike law by introducing the minimum service regulations. These regulations have the effect of reducing the power of UK workers in making an effective strike. The TUC has estimated that one in every five workers in the United Kingdom will have their right to strike limited. According to the Joint Committee on Human Rights, UK Parliament, “[t]he Strike Minimum Services Bill will place limitations on the right to strike in the relevant services, by requiring that trade unions take reasonable steps to ensure that the persons identified in a work notice given by an employer, do not take part or continue to take part in a strike.

Workers who are identified in a work notice and ignore that work notice by going on strike would lose their automatic protection against dismissal for taking part in strike action. The law will also obligate trade unions to take what they call “reasonable steps” to ensure that all its members identified in the work notice do not take part in the strike action. If it does not, unions could face an injunction to stop the strike or have to pay huge damages. The ILO principles regarding minimum services require that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary. In this matter, we see the Government’s clear intentions to move forward despite opposition from trade unions. The Government does not care about what is being said by the trade unions, which are key partners in the United Kingdom’s economy. I urge the UK Government to engage with its social partners to resolve the current impasse.

Worker member, Philippines – The workers of the Philippines strongly advocate for trade union representatives to have access to workplaces in the United Kingdom. This access would greatly benefit our Overseas Filipino Workers, especially the approximately 40,000 health workers in the country. With a Filipino population of around 200,000 in the United Kingdom, it is crucial for our workers to have the opportunity to be part of trade unions. The Convention, which states that the Government must ensure the freedom to organize, reinforces the importance of granting workers and employers the ability to exercise this right. Unfortunately, in the United Kingdom, this freedom is hindered by the absence of a framework that allows unions to access workplaces, even for the purpose of addressing workers or engaging in organizing activities.

Without adequate protections, employers who are hostile to unions can easily dismiss their efforts. Union representatives are regularly denied access to workplaces and are even ordered to leave public spaces near workplaces when attempting to distribute leaflets at the end of the working day. Workers face threats simply for accepting a union leaflet. We would like to highlight that the Committee on Freedom of Association has emphasized that governments should guarantee the access of trade union representatives to workplaces, respecting of course the rights of property and management. This access is crucial for trade unions to communicate with workers and inform them about the potential advantages of unionization. However, in the United Kingdom, unions are kept at a distance and have no legal right to engage with workers. An example of this restriction is evident in a situation where a hotel chain called the police on organizers who were distributing union information outside its gates. Similarly, another employer denied access and instead promised to send a senior manager to question staff about their concerns if they requested to speak to a union officer. Within the building, all union material is prohibited, and workers are actively discouraged from discussing unions. Electronic signage throughout the facility is utilized to dissuade trade union membership.

Worker member, Australia – I am speaking on behalf of the Australian Union Movement and the Commonwealth Trade Union regarding the practice of surveillance and blacklisting of unions in the United Kingdom, an egregious violation of the Convention. The Government has previously indicated to the Committee of Experts that the exercise of covert investigatory powers under the Investigatory Powers Act, 2016 (IPA) and the Regulation of Investigatory Powers Act, 2000 (RIPA) are subject to numerous stringent safeguards and robust independent oversight. The Government points out that it would therefore never be necessary and proportionate to use investigatory powers merely to interfere with legitimate trade union activity. We note, however, the long-standing practice of surveillance of trade unions and unionists in the United Kingdom by the Government’s security service and police and evidence that this intelligence has been passed on to employers and used to blacklist workers, leading to workers being dismissed and refused work due to their trade union activities.

Following scandals involving the raid of a blacklisting employers’ association in 2009 and the subsequent unmasking of a number of spies during 2010–2014, the Government established the Undercover Policing Inquiry in 2015, which is yet to hand down its report. The surveillance and blacklisting of unions were significant enough to warrant the inquiry creating a specific category to investigate hidden State surveillance of trade unions, with the Fire Brigades Union, the National Union of Mineworkers, UNITE and the rank-and-file campaign and the Blacklist Support Group as “core participants.” There is evidence that the practice of blacklisting is still current – for example, it was revealed in 2019 that senior managers at a large publicly funded rail project hired a corporate security company to monitor trade unionists who were campaigning against blacklisting across the construction industry. So it is in this context that we note with grave concern that the Government has recently passed the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which authorizes the police, the security and intelligence services and the armed forces to infiltrate lawful organizations and to authorize those infiltrated to commit criminal offences. The Act allows for criminal conduct authorizations: (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder or (c) in the interests of the economic well-being of the United Kingdom. It is clear that these statutory reasons for authorizations could enable the surveillance of trade unions and trade union members. An amendment intended to exclude trade unions from the reach of the Bill was defeated by 59 votes after the Government refused to support it – the UK Parliament effectively repudiating this specific limitation on the powers of the police and security services. Given the evidence of the widespread practice of the surveillance of independent workers’ organizations in the United Kingdom, leading to the blacklisting of trade unionists, we express our serious concerns that the progress claimed by the Government in response to the Committee of Experts’ observations in 2018 is vulnerable to future abuses.

Neither trade unions nor trade union members should be subject to the surveillance of the State. We call on the Government to immediately amend the Act to explicitly exclude trade unions and immediately cease the practice of surveillance of trade unions in order to comply with the Convention. We further call on the Government to prohibit the surveillance of trade unions and trade union members by the State and its officials due to their trade union membership or activities and punish with severe criminal sanctions State officials engaging in such activity.

Government representative – I would like to thank all those who have spoken in today’s session and who have engaged constructively with this process. The United Kingdom welcomes the scrutiny of the Committee of Experts and this Committee, and we have listened carefully to all the views expressed today and will be taking them forward with relevant colleagues across the UK Government. The United Kingdom is committed to all ILO Conventions we have ratified, including Convention No. 87, and we have a long-established regulatory framework protecting this fundamental Convention. We believe the Trade Union Act takes a measured and proportionate approach that balances the rights of people who take industrial action and those who are affected by that action. It aims to modernize industrial relations while promoting a more effective, collaborative approach to resolving industrial disputes and protecting the continuation of vital services for all in our society.

The United Kingdom intends to commence the review of the Trade Union Act shortly and we anticipate it will conclude in time for the next UK report to the ILO. The review, which will include the ballot threshold and picketing requirements, will consider the views of the social partners, and the questions asked by this Committee, and its conclusions will also be part of that review. We thank speakers for their comments on the Certification Officer reforms. This role is critical in ensuring trade unions and employers’ associations are held to the highest standards of governance. The Certification Officer is fully independent of Government, and the reform specifies this explicitly. There are clear limitations as to how the Certification Officer can use her investigatory powers. She has to act reasonably and cannot launch investigations against unions on a whim. She can only launch an investigation where they suspect there has been a breach of a statutory obligation. Furthermore, the Certification Officer can only request documents from a union when there is good reason to do so. Our new measures have strengthened safeguards, including by increasing judicial oversight of her decisions, as we detailed in our written response to the Committee of Experts. The reforms have modernized trade union regulation, bringing it into line with other regulators. This is important for securing the confidence of workers, employers and the general public.

I am aware that the Committee of Experts did not ask about the Strikes (Minimum Service Levels) Bill, but I noted it was raised by several delegates, and so I just wanted to reiterate the United Kingdom’s principal position that the ability to strike is an important part of industrial relations in the United Kingdom, rightly protected by law, and the Government understands that an element of disruption is inherent in any strike. We thank the Workers’ and Employers’ delegates and members for their comments on the repeal of Regulation 7, on consultations with social partners, and on wider legislative reforms relating to protests, and we will pass these on to the relevant government departments in the United Kingdom. In conclusion, the Government is confident that the UK Trade Union Act is compatible with our international obligations under the United Nations, the ILO and the European Social Charter. The Trade Union Act does not intend to, nor does it, prevent industrial action but ensures it is supported by a reasonable democratic level of participation and support. The Government is confident that the Trade Union Act strikes a fair balance between the rights of unions and their responsibilities towards the rest of society and modernizes trade union law to the benefit of everyone. So let me just end by reiterating the United Kingdom’s commitment to continuously improving labour standards and by thanking the Committee and its contributors for their valuable time.

Employer members – We thank the Government of the United Kingdom for its comments and all of the information and, in fact, all participants for a rich and varied discussion. We are just taking note of the Government’s comments around Certification Officers and balloting and urge them to continue the work that they have begun. I think the primary issue, given that the view of the Employers is that the right to strike per se is not regulated by the Convention, that the issues that have been raised are of a practical nature for the Government to deal with. But that being said, they are practical issues, and they should be given the attention that has been requested. With that in mind, we would simply like to recommend that the Government of the UK report to the Committee of Experts in time for the next Committee of Experts’ session with information on the application of the Convention in law and practice and with all of the information requested by the Committee of Experts.

Worker members – We thank the Government representative of the United Kingdom for the information provided to our Committee, and we also thank all the speakers for their contributions. The infringements on the right to freedom of association and the right to organize in the United Kingdom must be seen in the context of a system in which trade unions are already very highly regulated, as a result of a number of restrictions on trade union freedoms introduced over the last 45 years. The Committee of Experts and the Committee on Freedom of Association have also already critically examined many of these restrictions over the years. This afternoon, we have talked extensively about the inability of unions to use electronic ballots for strikes or even leadership elections, while other civil society organizations – and even political parties – are permitted to ballot electronically. This highlights an encroachment on the autonomy of trade unions to draw up their own rules and decide on their own activities.

If we consider restrictions on the right to strike in transport and education, we must also recall other limitations on the right in law and practice. For example, the United Kingdom still has a blanket ban on secondary action. The impact of the ban was made apparent when last year a major ferry company summarily dismissed 786 of its workers and replaced them with agency workers. It was dismissal by ambush. There was no prior consultation with the unions, and since the dismissals were instantaneous, the possibility of industrial action by the workers was denied to them. This, coupled with the fact that unions are absolutely prohibited from calling on other workers to take solidarity action in support of those dismissed, meant that the seafarers were left with no legal or industrial recourse. The plethora of restrictions on the right to strike and actions undermining the autonomy of trade unions and civil liberties of trade unionists amount to serious violations of Articles 2 and 3 of the Convention, read together with Articles 7, 8 and 10, and the principles of Freedom of Association.

Our group is always looking for constructive ways to ensure governments fully comply with their obligations under ratified Conventions. Anti-union statements from government ministers and not engaging in formal consultations is not the way to go; social dialogue is the solution. Indeed, almost every observation made by the Committee of Experts in this case highlighted the lack of meaningful consultation with the social partners. This needs to change urgently. We believe that the Government should avail itself of ILO technical assistance, in close cooperation and consultation with the social partners to help bring its existing and proposed legislation into conformity with the Convention and to implement the recommendations of the Committee of Experts and our Committee. Social dialogue is at the core of the ILO Constitution, and its realization gives meaning to the application of the Convention. In conclusion, we would like to reiterate the critical importance of the fundamental right to strike. For the avoidance of doubt, allow me to say that for the Workers’ group, there can be no compromise on the unconditional recognition of the right to strike based on the Convention. This is a fundamental right which is indispensable for ensuring the effectiveness of the rights and freedoms enshrined in international labour standards.

As a responsible Member of the ILO and the international community as is the United Kingdom, respecting, promoting and fulfilling the expert guidance of its supervisory bodies within the context of their dialogue with Member States regarding the application of ratified Conventions is paramount and fundamental, and we recall that the Government group’s 2015 statement was clear that “[t]he Government group recognizes that the right to strike is linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government group specifically recognizes that without protecting a right to strike, Freedom of Association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests cannot be fully realized”. We urge the Government to be guided by the long-standing guidance of the supervisory bodies, including the Committee of Experts, with respect to the full exercise of the rights protected in the Convention by workers, including on the right to strike. We urge the Government to engage in meaningful social dialogue on all the issues raised by the Committee of Experts and address them in line with the Convention.

Conclusions by the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted the centrality of social dialogue to freedom of association and thus to the meaningful application of the Convention.

- Taking into account the discussion of the case, the Committee requests the Government to provide information to and facilitate the dialogue between and with the social partners with a view to:

- report on the results of the 2015 Undercover Policing Inquiry and the 2018 Trades Union Confederation (TUC) allegations regarding surveillance of trade unions and trade unionists;

- ensure that existing and prospective legislation is in conformity with the Convention;

- limit and define the investigatory powers of the Certification Officer to ensure that these powers do not interfere with the autonomy and functioning of workers’ and employers’ organizations;

- facilitate electronic balloting (e-balloting); and

- improve consultation of the social partners on legislation of relevance to them.

The Committee invites the Government to avail itself of technical assistance of the ILO and requests the Government to provide information on progress made on all the above issues by 1 September 2023 to the Committee of Experts.

Government representative – Let me begin by reaffirming the United Kingdom’s commitment to this process and the supervisory system as a whole. As a nation committed to upholding and advancing international labour standards domestically and globally, the United Kingdom highly values the role of the ILO. We thank the Committee for its careful and thorough examination of this case and the issues that have been raised. We take due note of the Committee’s conclusions and undertake to report back to the Committee of Experts accordingly.

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



A Government representative welcomed the opportunity to inform the Committee on the revisions made to the Trade Union Bill since it was considered by the Committee of Experts and before it was passed into law on 4 May 2016. The Government was confident that the Trade Union Act, which aimed to promote a more effective and collaborative approach to resolving industrial disputes, complied with its international obligations on trade union rights. The ILO Governing Body, the Governmental Committee of the European Social Charter and the European Court of Human Rights had previously accepted its legislative approach to strike the right balance between trade union rights and legitimate interests of others affected by their actions. The Government had maintained this balanced approach in its proposals to implement its commitments to trade union reform that had received democratic support at the last general election. For example, the introduction of ballot thresholds addressed the fact that industrial action affected large numbers of the public who did not have a say in a strike ballot. In view of the widespread adverse consequences of industrial action in public services, the Act required that strikes in “important public services” received the support of 40 per cent of those who voted, in addition to a 50 per cent turnout, to ensure the necessary democratic legitimacy and clear majority support. The 40 per cent threshold was meant to apply to services extremely significant to the public and the initial use of the term “essential” was not connected with any existing definition. To avoid confusion, the term “important public services” was now used. Other reforms in the Act included the extension of the notice for strike action from seven to 14 days, so as to allow more time to prepare, though a seven-day notice could still be agreed with the employer. The Act also established a duration of strike ballot mandates of six months, extendable by agreement to nine months, to avoid strikes on outdated mandates. It required more clarity on ballot papers on the matters in dispute, as well as on the type of proposed industrial action. In relation to picketing, after consultation and concerns in Parliament, the Government had not taken forward the idea of requiring protest plans to be published weeks in advance. Instead of introducing a new criminal offence related to picketing, it had focused on modernizing the Code of Practice on Picketing. Concerning electronic balloting, the Government needed to be satisfied that it allowed all those entitled to vote to do so, that votes were secret and secure, and that risks of intimidation or malpractice were minimized. To that end, the Act required an independent review of electronic balloting within six months. The Trade Union Act modernized the union regulator, by giving to the certification officer updated powers in line with similar authorities. It introduced a partial levy to share with taxpayers the cost for regulating trade unions and employers’ associations. It also required public sector employers to publish information on facility time for union officials and that payroll deductions of union dues be administered only where the cost was not funded by the public purse. Measures in the Act had been subject to extensive democratic scrutiny during the passage of the Bill and three large public consultations with trade unions, employers and members of the public. The Government was still considering its response on the proposal to repeal the ban on hiring agency workers during strike action and would announce its position in due course. During the consultations and extensive scrutiny by both Houses of Parliament, it had made revisions in light of evidence put forward. For example, it had revised proposals on the duration of strike ballot mandates, from four to six months, and allowed their extension by agreement to nine months. It had modified its initial proposal to ban check-off arrangements in the public sector to allow them to continue where they were at no cost to the public purse. Specific aspects relating to union political funds had been scrutinized by a Select Committee in the House of Lords; as a result, the Act established that the requirement to opt-in applied only to new union members, which was welcomed by all political parties. In conclusion, the Government was confident that the provisions in the Trade Union Act were reasonable, proportionate and based on a balanced approach, and that they were in line with its international obligations; they did not intend to prevent industrial actions, but to ensure they enjoyed a reasonable level of participation and support, to the benefit of everyone.

The Worker members pointed out that the Trade Union Bill had been introduced by the Government in July 2015 to severely restrict the right of workers to undertake industrial action, including pickets and strikes. The situation had been worsened by a proposed amendment to the 2003 Regulations on employment agencies to allow the use of agency workers as strike breakers. In addition, the Government had been allowed to interfere in voluntarily concluded collective agreements on trade union facilities – including time facilities related to health and safety, members’ representation, consultation on redundancies and negotiations on pay and working conditions. The Act also granted to the certification officer significantly expanded powers to engage in highly intrusive investigations into trade union activities at the behest of employers and other groups. The Government had failed to put forward any compelling arguments for the reforms introduced. The current laws already heavily regulated industrial action and did not need further tightening. The reforms, which ignored international obligations under the Convention and other instruments, would undermine rather than improve industrial relations. The Committee of Experts had examined the proposed legislation and made a number of observations with regard to the additional ballot requirements for industrial action in certain sectors, the limitation on the methods of strike balloting, and the use of agency workers to replace strikers. Other matters had been referred to the Government for further information by means of a direct request. Concerning ballot thresholds, the Bill proposed higher minimum levels of participation for lawful industrial action. In all sectors, such action would be lawful only if 50 per cent of those entitled to vote did so, and that if a majority of those voting supported the action. For six sectors deemed “important public services” – namely: health services; education; fire service; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security – an overall 40 per cent vote in favour was required. Thus, in the case of a participation of 50 per cent, 80 per cent of those voting would be required to support the proposed action. The Committee of Experts had expressly urged the Government to ensure that education and transport would not be covered by the new higher threshold, as they were not essential public services in the strict sense of the term. As to the ballot methods, unions had to comply with complex notice requirements and to hold a postal ballot to ascertain support for the proposed action; they were prohibited from using other means such as allowing for strike votes at the workplace or electronically. The Government had opted for means to suppress strikes rather than to increase turnout for strike votes, if indeed its concern was that strikes were not sufficiently supported by membership. After the House of Lords had voted by a large majority, amendments requiring the Government to commission an independent review into the use of electronic voting and to publish a strategy to roll-out electronic voting, the Government had introduced amendments to ensure that it would be under no obligation to act following the review. The extent to which social partners would be a part of the review process remained unclear.

The use of agency workers to replace workers on strike had been banned since 1973 and there was no defensible reason to repeal that ban now or at any time. Allowing it could have no other purpose than to weaken strikes and ultimately to prevent workers from exercising their right to take strike action. As with other proposals, this would only worsen industrial relations, by making it far more difficult for parties in a dispute to resolve differences. It would create resentment among workers, which would last long after the dispute had ended. It would also put agency workers in a difficult if not impossible position. It had to be recalled that many employment agencies, including those affiliated to the International Confederation of Private Employment Agencies (CIETT), had agreed with unions not to use agency workers to break strikes, creating the space for less professional and accountable agencies to supply strike-breakers. Even the enterprises affected by a strike would stand to lose, as the agency staff would be inadequately trained, resentful and far less productive. In some occupations, the lack of adequate training would likely involve health risks. The ILO was unequivocal in condemning the use of replacement workers and had condemned countries such as the United States, Chile and Zimbabwe for allowing the hiring of replacement workers. In particular, the Committee on Freedom of Association had explained that “the hiring of workers to break a strike in a sector which could not be regarded as an essential sector in the strict sense of the term constituted a serious violation of freedom of association”. The Government had not yet announced whether it would go ahead with its plans to introduce regulations lifting the ban on the use of agency workers to replace striking workers. The Trade Union Bill had also introduced several limitations on picketing, a power to cap union facilities, even where arrangements would have resulted from voluntary negotiations between employers and unions, and enhanced the powers of the certification officer. These matters were not addressed in the observation of the Committee of Experts but were instead referred to the Government in a direct request for further information. In these areas, some important concessions had been made in the legislative process. Taken together, the various proposals amounted to an unprecedented assault on the right to take industrial action. They were in clear breach of the Government’s obligations under international labour law, including the jurisprudence of the ILO supervisory system over several decades. Indeed, in February 2015, the Government group, including the Government of the United Kingdom, had issued a unanimous statement in which it recognized “that the right to strike was linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government group specifically recognized that without protecting a right to strike, freedom of association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests, could not be fully realized”. Of course, the right was not absolute, and no one had ever claimed that. However, the Trade Union Bill struck at the heart of that right, rendering it difficult if not impossible to exercise it lawfully.

The Employer members thanked the Government representative for the information provided and noted with interest the process of consultation in relation to the drafting of the Trade Union Bill. The application in the United Kingdom of this fundamental Convention had been the subject of observations from the Committee of Experts on 12 occasions since 1995. Its observation of 2013 dealt with the right of unions to draw up their rules and formulate their programmes without interference from the authorities, in particular with regard to the expulsion of individuals on account of their membership in an extremist political party with principles and policies repugnant to the trade union. It also raised the need for fuller protection of the right of workers to exercise legitimate industrial action, including the issue of immunities from civil liabilities. That observation was not discussed by the present Committee. The latest observation took note of the Trade Union Bill tabled in July 2015 and of the concerns expressed by the Trade Union Congress (TUC) in relation to the Government’s legislative proposals. This raised two primary concerns for the Employer members. First, it was clear that when the Committee of Experts made its observation, it was commenting on a draft Trade Union Bill, which was still subject to social dialogue, a democratic process of discussion, debate and review; its comments were therefore premature. Revisions had been made since, hence the said comments did not reflect the current situation. The basis and status of the observation were unclear and needed clarification. Second, the observation contained a number of comments on issues such as picketing, strike ballot and quorum requirements, use of replacement workers in the event of strike, that is, issues which were all related to the regulation of strikes. The position of the Employer members that the Convention did not include the right to strike was well known and did not need to be repeated. It sufficed to say that there was no consensus in the present Committee on the issue. Since the Worker members had referred to the statement made by the Government group in February 2015, but only to quote its paragraph 4, it was useful to recall that the following paragraph of the same statement also noted “that the right to strike, albeit part of the fundamental principles and rights at work of the ILO, was not an absolute right”, that “the scope and conditions of this right were regulated at the national level” and that “the document presented by the Office described the multifaceted regulations that States had adopted to frame the right to strike”. The Employer members had heard the Government explain the complex issues and the act of balancing competing rights when considering these issues and looked forward to continuing the discussion.

The Worker member of the United Kingdom underlined the far-reaching restrictions of the Trade Union Act on trade union activities. The Trade Union Act provided the certification officer with wide-ranging powers to investigate union affairs and access confidential records, including the names and addresses of union members. In addition, the Trade Union Act curtailed the freedom of the unions to decide on the use of their funds and empowered the Government to restrict the ability of public sector unions to represent their members. Unions were required to appoint picket supervisors whose contact details had to be given to the police. These changes exposed the unions to an increased risk of legal challenges and to punitive financial penalties. Politicians from all major parties had spoken publicly against the Trade Union Act. Non-profit organizations had warned that the Bill would render the right to strike illusory. The devolved Scottish and Welsh Governments had both publicly opposed the Bill. Regarding the high voting thresholds, the Trade Union Act introduced a new requirement for a 50 per cent turnout. The Government assessed that 45 per cent of ballots in the last five years would not have been valid under this new rule. The Chartered Institute of Personnel and Development (CIPD), the leading human resources body in the United Kingdom, had called the thresholds “outdated” and had pointed out that in the last 20 years, the number of workdays of strike actions had fallen by more than 90 per cent. In parts of the public sector qualified as “important public services”, the Government would additionally require unions to meet a 40 per cent favourable votes of all those entitled to vote. When analysed together, the two voting requirements entailed that a 50 per cent turnout on a ballot would require an approval rate of 80 per cent. This Act would permit much wider restrictions to freedom of association than the ones allowed by ILO standards. This Act would also have a disproportionate gender impact, considering that an estimated 73 per cent of the workers in these “important public services” were women. The Secretary of State had justified the inclusion of education and transport in the list of “important public services” by the inconveniences caused by stoppages in those areas, and not for reasons of public safety and security. The Minister had also said that the thresholds ensured that strike actions could only be carried out with a “reasonable” level of support. There were no other areas in which a requirement for up to 80 per cent support was considered reasonable, least of all when related to exceptions to fundamental democratic rights. The process for industrial action was already long and highly regulated. The Trade Union Act not only added further complex procedural requirements, including a doubling of notice periods for action, and extensive additional information to be included in the voting paper, it also provided that a ballot for action would expire after six months and thus had to be repeated if the dispute had not yet been resolved. The postal ballot process had to be simplified and modernized to allow for electronic voting. The Government also intended to undermine any future action by allowing striking workers to be replaced by agency staff. This replacement of strikers was not desired by the employment agencies, as it was against the spirit of the European Union (EU) Temporary Agency Worker Directive (2008/104/EC), and contrary to the European sector’s professional code of conduct. It also constituted a serious violation of freedom of association and aggravated potential disputes between employers and employees. The Worker member concluded by highlighting that the Trade Union Act constituted a serious interference with the rights of United Kingdom workers under the Convention and called on the Committee to request the repeal of the Trade Union Act and to discuss with the social partners on how to develop a legal framework adequate to the challenges of the twenty-first century.

The Employer member of the United Kingdom recalled that trade unions had been declared lawful by the Trade Union Act of 1871, long before the creation of the ILO and that the United Kingdom had not had a problem ratifying the Convention in 1949. Before its enactment the Trade Union Bill had received a high level of tripartite engagement and parliamentary scrutiny. Following the Conservative Party’s election, the new Government had announced package reform measures, as promised during the electoral campaign, that included the Trade Union Bill and three consultation papers on the use of agency workers, ballots thresholds and intimidation picketing. Following the consultations, the Confederation of British Industry (CBI), the United Kingdom’s leading business organization, and the TUC, an organization comprising 52 unions, had given oral evidence. The Bill had later been read by the House of Lords where all the main political parties were represented and where sat, among others, 16 former union leaders and 70 former union members. Subsequently, the Government had taken into consideration the outcome of the consultations and had amended the Bill to: remove the extension of the 40 per cent threshold to auxiliary workers; apply the 40 per cent threshold to private sector union members carrying out a specific important public service; and require ballots to be run under the 40 per cent threshold where a majority of workers involved were carrying out an important public service. The Government also concluded that the ILO definition of essential services was not definitive and confirmed the six identified important public sectors. The legislative process had followed its course and, later on, the CBI had given further written evidence, the House of Lords report had been published and several amendments had been proposed and adopted. On 4 May 2016, the Bill had received Royal Assent and had become the Trade Union Act 2016. The Government still had to draft secondary legislation for some parts, including on the use of agency workers, and had to consult on other parts. This meant that more parliamentary and public scrutiny would come and that it was unlikely to be a speedy implementation process. The speaker supported the consensus between the social partners, as expressed in their joint statement of February 2015, that: “[t]he right to take industrial action by workers and employers in support of their legitimate industrial interest is recognized by the constituents of the ILO”. There was no consensus that the Convention included the right to strike and its modalities. The consensus position of the Government group, as expressed in February 2015, confirmed: “that the right to strike, albeit part of the fundamental principles and rights at work of the ILO, is not an absolute right. The scope and conditions of this right are regulated at the national level”. The situation was problematic on many levels with regards to the Convention and the issue of the right to strike remained unresolved both legally and politically. The recent difficulties were appreciated and lessons had been drawn from the dramatic events in 2012 and 2014. The Director-General, in opening this Conference, had highlighted: “So facing up to the responsibilities which the ILO’s mandate for social justice imposes upon each one of us means adjusting our actions, our behaviour, our decisions to ensure that the undoubted opportunities of transformative change at work are realized. So that all – not just the few – can look to the future not with fear but with confidence, not with an eye only to individual advancement but also with a real sense of common purpose”. The Director-General had also recalled the crucial role of the Conference Committee in finding a way forward despite the underlying divergences of opinions and had emphasized the importance of a strong, authoritative and relevant standards system for an effective and influential ILO. The speaker wanted to constructively engage to help the ILO find lasting and harmonious resolutions of these divergences. A more private forum would help build the understanding necessary to find those resolutions. To conclude, the speaker expressed the hope that the conclusions on the case would be in accordance with the guidance of the Director-General and would respect the tripartite consensus.

The Government member of the Russian Federation expressed concerns over the adoption by the Government of a series of measures to reform the labour laws which might adversely affect the realization of the workers’ rights of association guaranteed by the Convention. Actions that would affect the basic labour rights had to be the object of discussions with the social partners and, where appropriate, the ILO should be consulted to assess whether such measures would be in conformity with the international labour standards.

The Employer member of the United States emphasized that the present case was not ripe and as such should not be heard by the Committee. Under the ILO Constitution, the Committee was a committee in charge of examining whether a member State was applying its domestic law in a manner that was consistent with the Conventions it had ratified. The legislation that had been under scrutiny was a draft that had never been implemented. At the time of the adoption of the comment of the Committee of Experts, the legislation was a draft Bill that had not even passed one House of Parliament. Instead of reviewing a Bill, the Conference Committee should dedicate its precious time to hearing more important cases that had been left off the list. It was unlikely that governments would allow the Committee of Experts to interfere with their internal legislative processes. To conclude, the speaker questioned the decision of the Committee of Experts to formulate an observation on a draft Bill, especially when its subject matter, the right to industrial action, was extremely controversial.

The Worker member of New Zealand, also speaking on behalf of the Worker members of Australia, Canada, Fiji, Kingdom of Tonga and the United States, addressed the voting mode for industrial action in the United Kingdom. A mandate for strike action had to be sought by secret postal ballot, the costs of which appeared to be almost £200,000 per ballot and had to be borne by the union. The Trade Union Act significantly increased the requisite frequency of balloting. Moreover, there were new threshold requirements for strikes and the possibility for employers to either seek injunctive relief to halt a strike action, or to use agency workers to replace striking workers. The laws on industrial action were widely regarded as some of the strictest in Europe with the United Kingdom being an outlier even among the so-called “Anglo” countries (that is, Australia, Canada, New Zealand and the United States). The Committee of Experts and the Committee on Freedom of Association had been clear that procedural rules which substantially attenuated the right to strike might violate the Convention. In paragraph 170 of the 1994 General Survey on freedom of association and collective bargaining, the Committee of Experts indicated that, in relation to member authorization for industrial action, “the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice”. Similarly, the Committee on Freedom of Association, in paragraph 547 of the 2006 Digest of decisions and principles of the Freedom of Association Committee indicated that: “[t]he conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations”. Recalling that the Members of the House of Lords had requested an independent review into the use of electronic voting in industrial action ballots to which the Government had not yet given any follow-up, he called on the Government to work with the social partners to permit electronic voting and workplace voting as soon as possible.

The Employer member of Argentina reiterated the Employers’ position on the right to strike and the Convention. Every State was legitimately entitled to adopt laws regarding the right to strike in order to allow the exercise of this right. However, in the case of the United Kingdom the Committee of Experts was raising questions about a Bill that had been adopted since then, that regulated specific aspects of the right to strike, such as the voting procedure, restrictions on picketing and the replacement of striking workers. In doing so the Committee of Experts was raising issues that were not within its mandate. All States regulated the right to strike, which was not an absolute right, and although they had to consider the possible exercise of that right they also had to ensure that it was compatible with other rights, such as those relating to the employer’s property, freedom of movement and, above all, the right of workers who wanted to work. Despite the fact that the number of such workers might exceed that of workers in favour of taking forceful action, they might not be able to work because of the picketing. One could not possibly argue that employers should be the ones financing trade unions and pickets.

An observer representing the International Transport Workers’ Federation (ITF) commented on sections 2 and 3 of the Trade Union Act, namely the new requirement of a 50 per cent participation quorum in strike ballots and the requirement of 40 per cent support of all workers in “important public services”. The critical economic role of the transport sector was being used as a pretext to defend the free movement of passengers and goods over the rights of workers involved in transportation. Crackdowns of strikes in the transport sector had been occurring across the world in recent years. While the Trade Union Act did not ban strikes in the sector outright, the additional requirement of 40 per cent support would in fact deprive transport workers and all other workers in charge of “important public services”, from their right to strike, as they would not be protected through compensation guarantees. This negative result would be further aggravated by the existing legal mechanisms available to employers to obtain injunctions to cease actions. The additional 40 per cent requirement for important public services implied that 50 per cent of the members plus one member had to vote in a ballot and that 80 per cent of votes had to be in favour of an industrial action for such action to be lawful. The request of the TUC for electronic balloting had to be considered in the international context. In Germany, where some unions voluntarily laid down ballot thresholds in their rulebooks, ballots were held in workplaces rather than by post, producing higher turnouts. In Australia, a highly prescriptive system of strike ballots, it was possible to permit workplace and electronic voting. The Committee of Experts indicated clearly in its comments that the new ballot threshold would contravene with Article 3 of the Convention. The ILO supervisory bodies had held that the right to strike could only be restricted in the public service for those exercising authority in the name of the State or in essential services in the strict sense of the term. Transport occupations listed by the Government, namely local bus services, passenger railway services, airport security services and port security services, could not be considered essential services. The right to strike was a human right protected by the Convention and constituted international customary law. To conclude, the observer urged the Government to comply with the request formulated by the Committee of Experts to abandon the heightened requirement of support of 40 per cent of all workers in education and transport services.

The Employer member of France said that the case warranted the Committee’s attention. Based on observations by the TUC, the Committee of Experts requested the Government to review the Bill with the social partners with a view to its amendment. However, since it had been examined, the Bill had been extensively amended, which meant that the Conference Committee faced the difficult task of considering a text that was going through the stages of a national standard-setting procedure. The Convention provided a framework for the exercise of freedom of association and the protection of trade union rights. In doing so it placed two restrictions on the public authorities. By virtue of these restrictions, set out in Article 3(2) and Article 8(2) the public authorities must refrain from any interference which would restrict the right of workers’ and employers’ organizations to establish and join trade unions freely and the law of the land must not be such as to impair, nor be so applied as to impair, the right of employers and workers to establish workers’ and employers’ organizations. The Bill did not in fact run counter to either of those restrictions. None of the provisions referred to by the Committee of Experts came within the purview of the Committee since, it should be remembered, governments alone were competent to determine the rules governing the suspension of work contracts in the eventuality of a dispute. Finally, the Committee of Experts did not establish that there was any violation of the Convention, which was solely concerned with guaranteeing the freedom to establish employers’ and workers’ organizations.

The Worker member of Italy stressed that, in addition to the measures contained in the Trade Union Act, the Government proposed to authorize the recruitment of agency workers to replace strikers. This proposal infringed workers’ freedom of expression, and rights to organize and protest. The proposal would also have severe detrimental effects on recruitment agencies, which have expressed their opposition to the replacement of strikers with agency workers. Furthermore, the proposal would increase tensions between employers and workers, and would lead to employees seeking new employment opportunities, thus reducing productivity and causing an increase in recruitment and training costs. The Committee on Freedom of Association had found that the hiring of workers to break a strike in a sector which could not be regarded as an essential sector constituted a serious violation of freedom of association. In 2015, the Government of Italy and the trade unions issued a joint statement in which they called for the reaffirmation of the right to strike in all national and international forums in which the fundamental rights of people and workers were protected. The joint statement read as follows: “[t]he Treaty of Lisbon recognizes this right as one of the EU fundamental rights and defines a sort of joint European notion of this right, in addition to the national ones, by considering it a universal right. The ILO Committee of Experts, entrusted with the task of analysing national reports and detecting the infringements of Convention No. 87 signed by all EU Member States, has operated along these same lines. Said Convention, together with the other seven fundamental Conventions, contributes to define the minimum level of protection to be ensured to the rights recognized by the EU Charter of Fundamental Rights”. In reaction to the criminalization of strikes by the Italian fascist regime, the right to strike had been recognized as a fundamental right protected under the Italian Constitution. The right to strike, by giving to trade unions an economic leverage, also guaranteed freedom of association. To conclude, the speaker called on the Government to reconsider its proposal to authorize the recruitment of agency workers to replace strikers and engage in a dialogue with the social partners.

The Employer member of Denmark stated that the modalities of industrial action had to consider diverse elements of the national labour market. The obligations in respect of industrial action had been clearly reflected in the Government group statement of February 2015, which should be the basis for the work of the Committee of Experts and the Conference Committee. According to this statement, the scope and conditions of industrial actions should be regulated at the national level. He therefore noted with concern that the comments of the Committee of Experts dealt almost entirely with the aspects of industrial action in draft legislation. Emphasizing that the Committee of Experts had exceeded its mandate, the employer member refrained from commenting further on these comments.

The Worker member of Germany said that he was very worried about the freedom of association of British workers. The attack on these rights was reminiscent of a very dire period of British social policy, that is, the Thatcher era, during which all rights of workers had been severely curtailed. As a result of that policy, industrial relations had not recovered until today. While the provision concerning the explicit permission of the use of agency staff to replace striking workers had been removed from the Bill upon extreme pressure, the strike-breaking by agency workers remained of major importance for the Government. However, permitting the use of strike-breakers had wide-reaching consequences: not only did it compromise or render impossible the right to strike of trade unions, but – coupled with the minimum notification of two weeks prior to the strike – enterprises could take all their time to employ agency workers and any strike would be pointless. In addition, agency workers were generally poorly paid and suffered deplorable working conditions. The balance of powers would be shifted in favour of the employer and the bargaining power of workers would be lost completely. Therefore, such a situation would not only be contrary to Convention No. 87, but also to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). During the consultation procedure concerning the Bill, there had been criticisms not only from trade unions, but also from think tanks, law firms and recruitment agencies. It had also been found that British employers already had many means to replace striking workers. In conclusion, he claimed that strike-breaking should be prohibited as had been successfully done in the United Kingdom in 2003.

The Employer member of Turkey stressed that the case relied solely on the observations of the Committee of Experts and emphasized that the issues surrounding the right to strike modalities were not within the scope of the Convention. Conflicts, such as the one witnessed in 2012 and following years, had been settled with the tremendous efforts of the tripartite constituents. The outcome of the settlement on the matter, while not definitive, had to be taken into serious consideration by the Committee of Experts. The issues raised by the Committee of Experts, such as essential services, strike ballots and picketing related to highly contentious strike restrictions which had no legal basis in the Convention and could lead to further conflicts within the ILO system. Furthermore, the comments of the Committee of Experts in this case predominantly referred to a draft Bill which had not yet been implemented. This approach contradicted the rationale behind the existence of the Conference Committee and its fundamental mission to supervise the actual implementation of the Conventions instead of reviewing draft laws.

The Worker member of Zimbabwe expressed his serious concern over the recent changes to the legislation in the United Kingdom concerning freedom of association and was shocked to see that the Government had now started to adopt the same strategies as the Government of Zimbabwe. Some provisions in the Trade Union Act were very similar to the provisions in the legislation of Zimbabwe, which had contributed to mass violence and economic downfall. In 2008, a Commission of Inquiry had been established with an overwhelming majority in the Governing Body to examine the situation in Zimbabwe. The Commission of Inquiry had found that the list of essential services (including fire and health services as well as transport) was excessive in depriving workers from their right to strike. The United Kingdom had now created additional barriers for workers in essential public services (including health, education, fire, transport and nuclear services) concerning their right to strike in the form of a 40 per cent threshold of all workers entitled to vote with respect to strike ballots. Moreover, the notice period for taking industrial action in the United Kingdom had now been increased from seven to 14 days, a period similar to the one required in Zimbabwe, which had substantially undermined the right of workers to take industrial action. Indeed, the Commission of Inquiry found that the procedure for the declaration of strikes was problematic and explicitly confirmed that the right to strike was an intrinsic corollary of the right to organize protected by the Convention. He emphasized that even though Zimbabwe had been operating under similar provisions to those recently adopted by the United Kingdom that had not led to more jobs or economic security. On the contrary, Zimbabwe had one of the highest unemployment rates in the world. In conclusion, he expressed the firm belief that promoting fundamental rights and most importantly the right to freedom of association was the only way to create decent jobs and shared prosperity.

The Government representative reiterated that the approach throughout the legislative process on the Trade Union Act had been to strike a reasonable, proportionate and careful balance between the rights of trade unions and their members, and the legitimate interests of others affected by their actions. The measures in the Act had been subject to extensive democratic scrutiny. In addition, there had been three public consultations: on the scope of the 40 per cent support ballot threshold for important public services; on whether the legal framework for picketing had to be strengthened; and on a proposal to repeal the ban on hiring agency workers during strike actions (a measure that had not been included in the Trade Union Act). The Government had listened to the views expressed on specific measures during consultations and scrutiny by both Houses of Parliament, and had made revisions in the light of all the evidence put forward. For example, the Government had revised proposals concerning the duration of strike ballot mandates. It had also modified proposals to ban check-off arrangements in the public sector. Indeed, uniquely there was a separate independent Select Committee set up during the passage of the legislation through Parliament on the proposals regarding the contribution mechanism for union political funds. The Government had accepted the vast majority of the recommendations of that Committee and the requirement to opt-in to a union’s political fund now only applied to new union members. This had been welcomed by all political parties. Concerning the new powers of the Certification Officer, this agency was independent from the Government and trade unions could appeal any decision. With regard to electronic voting, the Government had to assess certain issues and would provide information in this regard in due course. Finally, the Trade Union Act had only received Royal Assent on 4 May 2016 and key provisions were yet to come into effect, including through secondary legislation. Observing that there was a wide range of views concerning the perception on industrial action among ILO constituents, the Government remained confident that the Trade Union Act struck a fair balance between the rights of unions and their members and their responsibilities towards the rest of society to everyone’s benefit – and that it fully complied with its international obligations.

The Worker members indicated that the discussion had reflected the Government’s determination in adopting the legislation. The Trade Union Act did not enjoy the support of the people, did not enjoy support among elected representatives of all parties and would put the United Kingdom on the far fringes of industrial relations systems in Europe. Moreover, the Act also contravened well-settled observations and conclusions of the ILO supervisory bodies that had enjoyed decades of tripartite support. The United Kingdom appeared to be associating itself more with countries that had been identified by the ILO supervisory bodies for their non-compliance with freedom of association rights. The Trade Union Act would mean that workers would face even greater limitations to stand up for decent services and safety at work, or defend their jobs or pay. The legislation appeared to be motivated wholly by ideological considerations without forethought as to its social and economic consequences. And the issues were not limited to the right to strike. The Act also granted to the certification officer significantly expanded powers to engage in highly intrusive investigations into trade union activities and obtain records at his own initiative, even without any complaint from a union member. The certification officer would thus have an insight into the internal organization and access to confidential union records (including correspondence between unions and members, membership records, including members’ names and addresses). The certification officer would also be able to investigate all such information in employers’ organizations and even in companies – as they were also a party in collective bargaining agreements. In the view of the Worker members, this very serious case, like many others cases discussed, deserved to be included in the list. The Government was seeking to effectively eliminate by law the fundamental right of freedom of association. Furthermore, the case had been included in the list in consensus with the Employer members. In conclusion, the Government should be urged to: (1) immediately repeal the Trade Union Act and organize full consultation and dialogue with the social partners on any preparation of legislation relating to industrial relations; (2) amend secondary regulation in full compliance with the Convention, including by: (i) withdrawing the proposal to remove the ban on the use of agency workers during strikes; and (ii) remove references to the transport and education sectors from the draft regulations regarding the 40 per cent threshold for strike balloting; (3) in consultation with the social partners, develop and introduce legislation to permit the use of forms of ballots other than postal ballots, including electronic ballots and workplace balloting; (4) with the social partners, review new restrictions on picketing, on union political freedoms and the greater overall control of trade unions through enhanced powers of the certification authority, in order to bring them into conformity with the Convention; (5) refrain from interference in the collective bargaining agreements which have been voluntarily agreed between employers and unions; (6) refrain from interference into trade union activities and into the internal organization of trade unions; and (7) provide a detailed report on progress to the Committee of Experts.

The Employer members welcomed the Government’s commitment to continue the constructive engagement and debate with both employers’ and workers’ organizations. Moreover, the information on the process of consultation and dialogue in the drafting process and on the proposed opt-in clause for union member contributions to political funds was welcomed. The Government also referred to the complexity of the issues and the need to balance competing rights. Acknowledging the constructive attitude of the Government, the Employer members requested more information on: (1) the status of the proposed abolition of a dues check off across all public sector organizations; (2) the status of the proposed opt-in clause with limited time validity for union members’ contributions to political funds; (3) the status of the proposal to increase the powers of the certification authority, including information on how it may limit employers’ and workers’ organizations to organize their programme in accordance with their own rules. Finally, there was a lack of consensus in the Committee on the relationship between the Convention and the right to strike. The Employers’ group was of the view that the issue of strike action could be regulated at national level, in line with the Government group statement of February 2015. Therefore, the Government should not be requested to repeal the Act or amend its strike regulations. This position, which diverged from the views of the Committee of Experts should be reflected in the record of proceedings of the Conference Committee.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted the Government’s indication that secondary legislation was still under discussion and noted with interest the Government`s comments regarding the engagement of the social partners in this ongoing process.

Taking into account the discussion of the case, the Committee requested the Government to:

• - respect the rights of workers and employers organizations to establish and join organizations of their own choosing without previous authorization;
• - define the power of the certification authority in such a way that it will not be in contradiction with the provisions of Convention No. 87 and provide information regarding the status of the proposal to increase the powers of this Authority;
• - provide information regarding the status of the opt-in clause with limited time validity for union members’ contributions to political funds accompanied by reporting obligations; and
• - report to the Committee of Experts before its next session in November 2016.

The Government representative thanked the Committee for its careful and thorough examination. He took due note of the conclusions and undertook to report back to the Committee accordingly.

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative said that the Committee of Experts had raised two issues concerning the United Kingdom's application of Convention No. 87. The first concerned section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, which limited the ability of trade unions to exclude or expel an individual from membership on the grounds of his or her membership of a political party.

Section 174 had been significantly amended by the Employment Relations Act 2004, which had had the effect of increasing the ability of trade unions to lawfully expel or exclude individuals on the grounds of their political party activities. However, the amendments retained the restrictions on the ability of trade unions to expel or exclude individuals simply on the grounds of political party membership. That distinction was important as it protected the basic right of a person to belong to a political party, while also enabling trade unions to ensure that those who actively articulated political views contrary to the unions' objectives and principles were denied membership. The 2004 Act also changed the compensation regime that applied when an individual was unlawfully excluded or expelled. The minimum level of compensation (currently set at £6,600) no longer applied in many situations of a person being unlawfully excluded or expelled on the grounds of political party membership.

The changes were intended to address the concerns of trade unions regarding the activities of far-right political parties and their desire to infiltrate union ranks. The changes had been introduced following detailed discussions with the Trades Union Congress (TUC). Although the changes did not go as far as the TUC had wished, there was general consensus that they were welcome and greatly helped trade unions in dealing with political extremists.

When making the above changes to section 174, the Government had been extremely conscious of the need to maintain a balance between different human rights: on the one hand, the rights of trade union members to design their own rules of membership and association, and on the other, the rights of individuals to belong to lawful political parties and to participate in political activities without suffering any sanctions as a result. Trade union membership was important in the United Kingdom, and the loss of the entitlement to belong to a trade union was detrimental to people who wished to exercise their democratic rights by engaging in political activities.

Although the TUC referred to the activities of certain extreme political parties, most of the country's political parties belonged to the mainstream and the law had to apply equally to all lawful political parties. Nevertheless, the Government was considering whether the present law struck the correct balance. In May 2007, it had issued a consultation document that it had circulated widely to all trade unions and employers' organizations, asking for their views on the matter. The consultation period would end in August 2007.

The initiative had been prompted by a recent judgement by the European Court of Human Rights in the case of ASLEF v. The United Kingdom. While the Court had recognized that United Kingdom law aimed to protect the rights of individuals to exercise their political freedoms without hindrance, it had ruled that aspects of section 174 had violated Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). The Government had therefore concluded that section 174 needed to be amended. Its consultation document suggested two ways in which that could be achieved. One option was to remove all statutory limitations on trade unions regarding their ability to expel or exclude an individual on the grounds of his or her political party membership or activities. Once it had considered the responses to the consultation, the Government would change the law at the earliest opportunity.

He said that the consultation was a major development. The Government's swift response to the Court's judgement indicated the seriousness with which it considered the issue and the importance that it attached to human rights. The Government would keep the Committee informed of subsequent developments through the usual reporting arrangements.

The second issue raised by the Committee of Experts concerned section 224 of the same 1992 Act, which in effect made it unlawful for trade unions to organize secondary industrial action. The Committee of Experts was of the opinion that trade unions should be free to organize sympathy strikes in situations where the initial strike was organized lawfully. However, his Government was of the view that that Convention No. 87 permitted member States to set legal restrictions on the taking of industrial action. Virtually all member States had enacted legislation in this area that reflected their domestic arrangements and industrial relations traditions. For example, some member States limited the ability of trade unions to undertake industrial action during the life of a collective agreement. His country did not impose such a limitation as its collective agreements were not legally enforceable.

Nevertheless, in the United Kingdom, it was unlawful for trade unions to organize any form of secondary action and the Government believed that there were good reasons why this should be so. The United Kingdom had historically operated a highly decentralized system of industrial relations, with many thousands of separate bargaining arrangements. The Government believed that such a system had its advantages. However, without the right legal framework, it could easily become anarchic and grossly inefficient. Throughout much of the post-war period, secondary action had been widespread in the country and it had had an extremely damaging impact on national prosperity. It had undermined the livelihoods of businesses and their employees.

Secondary action was particularly disruptive. It drew in employers and employees that had nothing to do with the original industrial dispute. It spread industrial conflict far and wide. In the United Kingdom, it made sense for such types of industrial action to be strongly discouraged. That had been done by removing the immunity from civil liability from trade unions that organized this type of action. In the Government's view, that restriction was necessary in the United Kingdom and struck the correct balance. In general, trade unions had fully adjusted to the law. They retained a strong bargaining presence, and the threat of taking primary industrial action had major force in the country. Thus, the strike weapon remained potent and effective, when used responsibly.

He added that there was no legal prohibition on individual workers taking sympathy action. Indeed, the law explicitly prevented courts from compelling any worker to work. However, the standard protections against dismissal for taking strike action did not apply in such circumstances, which ensured that unofficial industrial action was discouraged.

The Government believed that Convention No. 87 needed to be applied flexibly to take account of national conditions and traditions. The Convention did not deal explicitly with industrial action and did not therefore prohibit the regulation of strike activity. It was appropriate for the health of the United Kingdom economy and the stability of the country's complex system of industrial relations to deter sympathy and secondary strikes. The Government therefore had no plans to change the law in that area.

The Worker members indicated that the United Kingdom, like Romania, had not been able to resist the temptation to subject the right to strike and the right to bargain collectively to strict and detailed regulations. For that reason, both the Conference Committee and the Committee on Freedom of Association had frequently examined the incompatibility of certain provisions of United Kingdom legislation and certain national practices with the principles of Conventions Nos 87 and 98. In that respect, it was necessary to highlight the current trend towards deregulation, a trend that could be observed in almost all areas except that of industrial relations, where the rule seemed to be over regulation. The present case concerned the right of trade unions to draw up their own constitutions, elect their representatives in full freedom, organize their administration and activities and to formulate their programmes, as provided for in Article 3 of Convention No. 87. The provision also placed the obligation on the authorities to refrain from any action that might limit that right or hinder its lawful exercise.

One of the essential elements of the right to freedom of association was the power to freely define the criteria for the admission of new members and to freely exclude certain members from the trade union. Taking into account the frequent moves by far-right political parties to infiltrate free and democratic trade unions with a view to corrupting their structures and actions with intolerable ideologies, these two aspects were even more important for workers' organizations. Infiltration was not only to be observed in the United Kingdom, but also in other European countries. In order to defend themselves against the risk of infiltration, it was extremely important for workers' organizations to have at their disposal tools and guarantees that could also be used in court. National policies that jeopardized the ability of organizations to defend themselves before the courts were unacceptable.

However, in the United Kingdom, the current legislation did not offer sufficient protection against the attempts by the British National Party (BNP) to infiltrate trade unions. Moreover, the Associated Society of Locomotive Engineers and Firemen (ASLEF), a union affiliated to the Trades Union Congress (TUC), had been obliged by the courts to reverse its exclusion of a BNP militant on the basis of the national legislation, notably the Trade Union and Labour Relations (Consolidation) Act 1992. It had to be stressed that the BNP's ideology was purely neo-fascist and racist and that ASLEF had expelled a well-known party militant following allegations that he had threatened and harassed people distributing anti-Nazi leaflets and anti-Islamist brochures. It was extremely regrettable that ASLEF had finally been forced to refer the matter to the European Court of Human Rights to obtain justice and recognition of the union's right to expel such people. In a recent and very important ruling of 27 February 2007, the European Court of Human Rights, citing Convention No. 87, had clearly stated that trade unions were free to choose their members:

Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership (...). Unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union (...) Trade unions (...) are not bodies solely devoted to politically-neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues.

In view of the ruling of the European Court of Human Rights and its interpretation of Convention No. 87, the United Kingdom had no choice but to amend its legislation. And that was the hope of the British trade unions, of all the workers present in the Conference Committee and of the Committee of Experts. It also appeared to be the intention of the Government to do so, as it had admitted that the amendments made in 2004 were insufficient. Although it was not up to the Conference Committee to discuss the details of these amendments, they should be negotiated with national trade unions. It was essential for the Committee to urge the Government, in consultation with the national social partners and with the support of the ILO if necessary, to bring its legislation into line with the letter and spirit of Convention No. 87, and with the ruling of the European Court of Human Rights as soon as possible. The struggle against the far right, racism and xenophobia also made it necessary for trade unions to have the right to protect themselves against ideologies reminiscent of the darkest periods of the twentieth century.

The Worker members also noted that, although the Committee of Experts had not taken into account in its observations the right of trade unions to be able to take disciplinary measures against their members, it was still an important point. It was vital, in a situation where a member refused to respect the democratic decisions of his or her organization concerning industrial action, for the trade union to be in a position to take the measures needed to prevent individuals from damaging the collective interest.

Regarding the second point dealt with by the Committee of Experts - the right of workers to take part in strikes that affected them even if, in certain instances, the strikes did not concern their direct employer, and the amendment of sections 223 and 224 of the Trade Union and Labour Relations (Consolidation) Act - the Worker members requested that the issue be included in the conclusions of the Conference Committee. Trade unions were increasingly confronted with situations in which workers had different employers but worked in the same place. Depriving trade unions of the right to undertake joint industrial action on the basis of common interests or for reasons of solidarity, even if the action did not concern a dispute with their direct employer, ran counter to the right to strike and the right of freedom of association. On that point, they expressed their disappointment at the position of the Government, which was in contradiction with that of the Committee of Experts.

The Employer members said that this was an old case that had been debated on numerous occasions and concerned two points.

With regard to Article 3 of Convention No. 87 on the right of workers' organizations to draw up their constitutions and rules without interference by the public authorities, they reiterated that the 2004 amendment to section 174 of the Trade Union and Labour Relations (Consolidation) Act allowed unions to exclude or expel individuals on account of conduct which consisted of activities undertaken by an individual as a member of a political party. It did not allow for expulsion relating solely to membership and brought into play automatic compensation if a member was indeed expelled for being a member of a political party. They referred to the case of ASLEF v. The United Kingdom, in which the European Court of Human Rights had recently ruled that the Government was in contravention of Article 11 of the European Convention on Human Rights. In view of these recent developments, they noted the information provided by the Government representative and welcomed the process of consultation that was under way with the relevant parties, which constituted a major development.

In relation to immunities in respect of civil liability for strikes and other industrial action, they said that the matter had been considered on numerous occasions since 1989 and had resulted in the same outcome each time. In the view of the employers nothing had happened to warrant any change this time. They recalled that in 1991 the Committee of Experts had acknowledged that British legislation provided a significant measure of protection against common law liability for individuals and trade unions that organized and participated in certain forms of industrial action, and that those workers could not be ordered to return to or remain at work. Nevertheless, the Committee of Experts had continued to question the lack of protection for secondary industrial action and had repeatedly requested the Government to introduce legislation to enable workers and their unions to engage in industrial action such as protests and sympathy strikes.

In response to previous observations, the Government had continually raised the following points. First, United Kingdom law still provided protection against civil law liability that would otherwise arise wherever a trade union or any other person called on workers to break contracts in the contemplation or furtherance of a trade dispute with their employer, and it provided a wide-ranging definition of "trade dispute" for that purpose. Second, no change since 1979 to the law relating to the organization of industrial action had in any way affected the position of workers, who remained free to engage in industrial action, whether in relation to a trade union dispute with their employer or in support of other workers or of some other objective. Third, there was nothing in Convention No. 87 that indicated that there should be legal protection for sympathy strikes. The Government accordingly did not accept that there was any need for further legislation concerning protection against civil liability for acts of calling for, or otherwise organizing, industrial action on the grounds that this was necessary to ensure compliance with the Convention.

In later submissions, the Government had added that permitting forms of secondary action would be a retrogressive step and would risk taking the country back to the adversarial days of the 1960s and 1970s, when industrial action frequently involved employers and workers who had no direct connection with a dispute. The Employer members did not deem it necessary to comment on this hypothesis because, in their view, the current situation did not contravene Convention No. 87. They agreed that it was up to the Government to decide whether it wanted to provide civil protection for sympathy strikes and, until it did so, they believed that the status quo should be maintained.

The Worker member of the United Kingdom turned first to the way in which the right to associate was restricted by the law. Section 174 of the Trade Union and Labour Relations (Consolidation) Act forced trade unions to accept into their membership people who were members of extreme right political parties, whose views the majority found fundamentally abhorrent. Trade unions were not allowed to expel those people unless they had actively conducted themselves in a way which contravened union rules or policies. Moreover, any progress on the matter, as reported by the Government, had been forced by the ruling of the European Court of Human Rights. Indeed, the Government's proposals were for only limited change, which would not resolve the problem and would not meet the requirements of full compliance with Convention No. 87.

Article 3 of the Convention provided that unions could draw up their rules without interference from the public authorities. The Government was seeking to maintain the position that a trade union could not take disciplinary action against a member who refused to follow the democratic decision of the union to take industrial action. This was a grave and important breach of Convention No. 87 in that it attacked the primary purpose of any independent trade union - to promote and protect the collective interests of its members. Those collective interests were pursued following democratic decisions involving those affected. For a union not to be able to protect those decisions by discipline or expulsion of those who refused to abide by them was a fundamental attack on its powers to operate effectively.

Under United Kingdom law, no associations other than trade unions were required to admit into membership those who espoused views fundamentally contradictory to those of the association and its members. She gave an example of an animal charity with a policy against hunting that had decided to exclude from its membership all those who were in favour of hunting. The charity had been unsuccessfully challenged in the courts. There was no justification for treating trade unions differently under the law from any other membership organization.

One effect of the current law was to provide, albeit unintentionally, the far right with a weapon with which to attack trade unions. In January 2003, a far right magazine had urged its readers to infiltrate trade unions specifically in order to be thrown out and then sue for hefty compensation.

She added that the right to strike was particularly limited in the United Kingdom. It was not lawful for workers to take action in support of others if they had a different employer, and members of the same union could not call upon one another to take sympathy action unless they were employed by the same body. Even workers that had an interest in, and might be affected by, the outcome of a dispute could not lawfully be called upon to take supportive action. This was important not only in the private sector, but increasingly so in the public sector. Many central and local government functions were now subcontracted to private or tertiary-sector organizations.

Sympathy strikes were not the only limitations in respect of the right to organize. Unions needed to be able to prove that a dispute related to one of a defined list of workplace or contractual issues. Industrial action relating to something outside that list could never be lawful. In addition, there was a very complex set of laws that regulated calls for action by trade unions. A union first had to give notice to the employer that it intended to hold a ballot and provide the employer with a copy of the ballot paper that it would distribute. After the ballot, it had to inform the employer of the ballot result, and finally, at least seven days before calling on any members to take action, it was obliged to tell the employer the sort of action that it would be. Furthermore, the union had to supply employers with details regarding the numbers and categories of workers and the workplaces affected by the ballot or action. In the United Kingdom, a spontaneous walk-out was allowed only if the workers were in danger for health and safety reasons. Trade unions were prevented from taking action in furtherance of their members' interests owing to difficulties in meeting highly technical and complicated legal requirements. The attention of those involved in the dispute was therefore transferred from the injustice and breach of rights that prompted the dispute to the details of the formal legal requirements.

The Committee of Experts had previously asked the Government to keep it informed of developments regarding the right to take sympathy action. The Government had not been able to provide such information, as it had declined to take any steps. She said that the Government had delayed far too long in meeting its obligations under Convention No. 87. She therefore urged the Committee to call on the Government to take further action as a matter of urgency to ensure compliance with the Convention.

The Employer member of the United Kingdom said that, with regard to the right of workers' organizations to draw up their constitutions and rules without interference from the public authorities, he welcomed the decision by the Government to enter into a period of formal consultation regarding proposals to amend section 174 of the Trade Union and Labour Relations (Consolidation) Act in light of the decision of the European Court of Human Rights in the ASLEF v. The United Kingdom case. In relation to the issue of immunity in respect of civil liability for sympathy strikes and other industrial action, he said that there was nothing in Convention No. 87 that required special protection to be accorded in the case of proceedings that concerned the organization of industrial action among workers who had no dispute with their own employer. He therefore supported the position outlined by the Government representative on this matter.

The Worker member of Senegal said that the Committee of Experts had emphasized in its report that problems still remained as regards section 174 of the Trade Union and Labour Relations (Consolidation) Act (TULRA). Although amended in 2004, the Act still gave individuals the possibility of invalidating the basic provisions governing the protection of trade union rights. By authorizing the infiltration attempts of extremist political parties in the trade union movement, the offending legal provisions allowed individuals to damage the autonomy of the trade union movement. In that manner, the Act misrepresented the mission of the trade union movement.

The TUC denounced the automatic compensation of former members excluded by trade unions on account of their membership of an extremist political party. That system meant that trade unions could do little in relation to individuals whose practices were incompatible with trade union activism. The TUC should be able to protect itself against extremism. The statutes of trade unions were their constitution, and they should not be weakened. The freedom of an individual should not challenge that of trade union organizations. Obliging a trade union to pay compensation to an excluded member seemed to be the best means to encourage prejudicial action.

Referring to sections 223 and 224 of the TULRA, he said that they infringed the principle of solidarity, which constituted the basic foundation of trade unionism. The fact that workers could participate in sympathy strikes constituted their real means of resistance. The limitations contained in those sections were contrary to Convention No. 87 and to the right to organize. The Government should therefore take the necessary measures to ensure that the guarantees provided by Convention No. 87 were not rendered ineffective. The authority of Conventions was at stake. Real reforms were needed, as the status quo was not a viable solution. He concluded by calling on the Government to restore effective dialogue with the TUC.

The Worker member of the United States said that sympathy strikes were becoming an increasingly frequent and important tool because of economic globalization and delocalization. The Committee on Freedom of Association had found that the prohibition of sympathy strikes was abusive and that such strikes should be allowed if the original strike was lawful.

The Committee of Experts considered that the restrictions imposed by the Trade Union and Labour Relations (Consolidation) Act violated ILO standards and had repeatedly asked the Government to take the necessary measures to amend Sections 223 and 224 of the Act. However, the Government had refused to do so. According to the legislation, strikes were lawful only if they related to the primary employer, a term which had a narrow legal definition. It referred only to the work site, and did not extend even to subsidiaries of a parent company. The restrictions ignored the legitimate interests of workers and had led many British companies to divide their workforce artificially in order to create buffer companies.

The restrictions on sympathy strikes were having a documented negative effect on freedom of association in the United Kingdom. One such example was the case of 670 staff of Gate Gourmet, an airline catering company, who had been dismissed following a lawful strike relating to the employment of casual staff. Some 100 airline employees had embarked on a two-day strike in sympathy with their close industry colleagues, who had been employed by a different company but with whom they had shared the same workspace. The company had acknowledged that it had drawn up a plan to deliberately provoke industrial action so as to give itself an excuse to dismiss staff and replace them with cheaper labour. Although it also claimed that that plan had been rejected, the dismissals had occurred and the unions had not been able to negotiate the workers' reinstatement.

It was therefore clear that the law in the United Kingdom severely restricted the ability of workers to act collectively and to exercise the rights protected by Convention No. 87.

The Government representative thanked all those who had contributed to the debate, and particularly those who had expressed support for the Government's efforts regarding the future amendment of section 174 of the Trade Union and Labour Relations (Consolidation) Act, 1992, in relation to the ability of trade unions to exclude or expel an individual on the grounds of his or her membership of a political party.

In relation to the issue of the legality of secondary industrial action, he said that the case of Gate Gourmet was not a typical example. Dismissals for strike action were extremely rare and the situation in the country should not be judged on the basis of a single case. In view of the specific industrial relations situation in the United Kingdom which he had described earlier, it would be particularly harmful if there were to be a large number of sympathy strikes.

He said that the Government would respond to the issues raised by the Committee of Experts and the Conference Committee in its next report under the Convention.

The Employer members said that, in relation to the right of workers' organizations to draw up their constitutions and rules without interference by the public authorities, there should be due and proper recognition of the statement by the Government representative that a process of consultation was under way and that the Government intended to amend the law. The Committee could not ask for more than that.

With regard to sympathy strikes, although noting the comments that had been made, they said that those arguments should be taken up within national legal structures which was where they could be debated correctly. Nothing in Convention No. 87 required legal protection for sympathy strikes. Regarding the sympathy strike in the Gate Gourmet case, they pointed out that the courts had found that the industrial action had been unlawful.

The Worker members said that in their view four essential points had to be included in the Committee's conclusions. Firstly, the Committee had to recognize that the right to freely determine the membership criteria for new trade union members and to exclude members from the trade union, or take other disciplinary measures against members who refused to comply with decisions taken in a democratic manner, were essential elements of the right of workers to organize, particularly to protect trade unions against infiltration by members of associations whose ideas were incompatible with the values and social and democratic model espoused by the trade union movement.

Secondly, they noted that the Government had expressed its willingness to amend the legislation and admitted that the amendments made in 2004 did not fully address the concerns relating to freedom of association, and that further steps were necessary. It was essential for any further amendments made to the legislation to be discussed with the social partners so as to create a legislative framework that was in full conformity with Convention No. 87 and the jurisprudence of the European Court of Human Rights. That should be done in close collaboration with the ILO.

Thirdly, as had been emphasized by the Employer and Worker members of the United Kingdom, the current legislation did not respect the right of trade unions to take disciplinary measures against their members. The Worker members had requested the Committee of Experts to examine this issue, taking into account the additional information that the Government would provide, so as to ensure that the legislation was in full conformity with Convention No. 87.

Finally, they called on the Government to recognize the right to participate in sympathy strikes. Such recognition necessarily implied the amendment of sections 223 and 224 of the TULRA, which should be done in collaboration with the national social partners. Addressing the Government and the employers, the Worker members recalled the principle that the Committee on Freedom of Association had laid down on several occasions that the right to organize sympathy strikes was part of the right to strike.

The Committee took note of the statement made by the Government representative and the debate that followed. The Committee observed that the Committee of Experts' comments referred to several legislative provisions impacting upon the right of workers' organizations to draw up their constitutions and rules and to organize their activities without interference by the public authorities.

The Committee noted the Government's statement according to which it has issued consultation documents, widely circulated to all UK trade unions and employers' organizations, suggesting possible amendments to section 174 of the Trade Union and Labour Relations Act (TULRA), including the removal of all statutory limitations on trade unions regarding their ability to expel or exclude individuals on the grounds of their political membership or activities. The Government indicated its intention to change the law in this respect at the earliest opportunity.

The Committee noted the recent judgement of the European Court of Human Rights which, making explicit reference to Articles 3 and 5 of ILO Convention No. 87, found the application of section 174 of the TULRA to be contrary to Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It welcomed the Government's commencement of a consultation process proposing possible approaches to the amendment of section 174 and expressed the hope in this regard that the TULRA would be amended in the near future so as to ensure that workers' organizations may draw up their constitutions and rules without interference by the public authorities.

The Committee further requested the Government to engage in full consultation with the national workers' and employers' organizations concerned with a view to reaching a consensus on the other matters raised in the debate. It requested the Government to provide detailed information on the progress made in the consultation process and on all proposed legislative changes in its next report to the Committee of Experts. The Committee trusted that the Committee of Experts would pay particular attention to the discussion that took place on this case.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

The Government supplied the following information:

The Government has honoured its pledge to restore the right, which was denied in 1984, for staff at the Government Communications Headquarters in Cheltenham (GCHQ) to join a trade union of their choice. The conditions of service at GCHQ have been amended, with immediate effect, to remove all restrictions on union membership. The staff are now free to join any union they wish. The full details of these changes will be communicated to the ILO in due course.

In addition, a Government representative stated that the United Kingdom Minister of State for Employment had already announced formally the restoration of trade union rights at the Government Communications Headquarters in Cheltenham (GCHQ) in his speech to the plenary session of the Conference. He had emphasized the Government's full support for the ILO, the importance that it attached to restoring the United Kingdom's reputation for fulfilling its obligations in the ILO, and its full respect for the application of the ILO's core labour standards. He was therefore very pleased to put on record before the Committee his Government's prompt action to restore freedom of association at GCHQ. This was one of the very first acts of the new Government, after it was elected on 1 May 1997.

The speed with which his Government had acted on this commitment demonstrated the importance to the United Kingdom of upholding respect for freedom of association and basic trade union rights, the exercise of which it believed was crucial to balanced, humane, democratic and peaceful development. Referring to the wider questions raised about his Government's compliance with the provisions of the Convention, the speaker indicated that he was not in a position to give a detailed response at this point. He could, however, confirm that the Government had pledged to restore a fair balance between the rights and responsibilities of employers and employees at the workplace. The Government intended to consult later in the year on its proposals for fairness at work. Trade union organizations would, of course, play a full part in those tripartite consultations. Finally, he wished to confirm that his Government would, in due course, respond in full to the comments made by the Committee of Experts in its latest observation.

The Workers' members stated that on the basis of the observation of the Committee of Experts a long and difficult debate might have been needed on the application by the United Kingdom of the Convention. However, in view of the declaration of the Minister of Employment in plenary, and that of the Government representative in this Committee, it seemed that progress was being made at last. With regard to the issue of the dismissal of workers at GCHQ, it would appear that the situation had been rectified. This was a great victory for the supervisory bodies and the system. However, sight should not be lost of the fact that the Government would have to take several further steps before its legislation and practice were completely in line with the requirements of the Convention. But there were significant reasons to look forward to such further steps with some confidence, especially as the new Government was prepared to engage in real and meaningful consultations with the Trades Union Congress (TUC) and the Confederation of British Industry (CBI). The Workers' members welcomed the Government's intention to introduce a White Paper to restore fairness in the workplace. The Workers' representatives in the United Kingdom were looking forward to proper consultations on the White Paper and subsequent legislation. Finally, the Workers' members welcomed the prospect of full participation by the Government in the ILO in line with the Minister of Employment's statement, and of its intention to ensure respect for the core ILO Conventions.

The Employers' members noted that this case was well known to this Committee since it had been discussed on several occasions. The written information submitted by the Government, as well as the explanations of the Government representative, showed that this case was essentially resolved. The actual contribution of the Committee with respect to this solution was difficult to evaluate and internal considerations had probably played a more decisive role than the discussions of the Committee. Instead of referring to historical considerations, it was enough to note with satisfaction that freedom of association had been reinstated at GCHQ. As was often the case with the discussions of this Committee, several points as well as the comments of the Committee of Experts were never discussed in detail but were just touched upon generally. Points 2 and 3 of this year's observation touched upon fundamental questions but since neither the Government representative nor the Workers' members had dealt with them the Employers' members were going to follow the same line while reserving the possibility of coming back during a forthcoming session of the Conference.

The Workers' member of the United Kingdom appreciated and welcomed the statement of the new Labour Government on bringing to an end a 13-year-old injustice. He also expressed the appreciation of the British TUC, his own union which had over 900 members banned from trade union membership at GCHQ, and of the 14 GCHQ staff who were dismissed for refusing to leave their trade union, to the ILO and all the delegates of this Committee for keeping the issue of GCHQ alive. He also thanked those Governments and Employers' members who had given their support and joined in the call for a resolution of this case over those 13 years. Moreover, he thanked the British civil servants who had presented this case 13 years ago, virtually all of whom had been members of the same union banned at GCHQ in 1994. Most of all he wished to thank the Workers' members of this Committee for their steadfast and total support for this issue.

The Government member of Switzerland, in his personal and official capacity, welcomed with great satisfaction the statement of the Government representative. The discussion of this case for several years made it a symbol touching the application of a fundamental Convention of the ILO. One could only express delight with respect to the measures taken in the case of GCHQ and note with satisfaction the measures that the Government had taken or was going to take on a tripartite basis to fully implement the Convention. Hope could be expressed that the Government would demonstrate the same goodwill regarding the other requests of the Committee of Experts. This was not only a case of progress but a case which had been resolved and therefore should no longer appear on the list of cases to be discussed.

The Government representative noted the welcome by the Committee of the restoration of trade union rights to the staff at GCHQ.

The Workers' members disagreed with the Government member of Switzerland that the case had been resolved. On the contrary, many steps had yet to be taken in order to bring national legislation and practice into conformity with the Convention. They trusted that these measures would be taken soon.

The Committee took note of the written and oral information provided by the Government. It noted with satisfaction that the Government had fulfilled its promise to re-establish the right of the staff at Government Communications Headquarters in Cheltenham to join organizations of their own choosing, which had been withheld since 1984. The Committee decided to mention this case of progress in the appropriate part of its General Report. The Committee expressed the hope that, in consultation with the organizations of workers and employers, the Government would examine the other points raised in the report of the Committee of Experts.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government representative started with the overview of the background of the case and pointed out that the Government Communications Headquarters (GCHQ) collected and monitored information for intelligence purposes and formed an integral part of the United Kingdom intelligence system. He emphasized the change in the legal status of the GCHQ under the Intelligence Services Act of 1994 and the fact that GCHQ provided government departments and military command with vital signal intelligence, and had close and vital links with the intelligence services in many other countries. The Act made it clear that GCHQ's intelligence production functions were exercisable "in the interests of national security with particular reference to the defence and foreign policies" of the Government. In the Act, the expression GCHQ referred to the Government Communication Headquarters and to any unit or part of a unit of the armed forces which was for the time being required by the Secretary of State to assist the Government Communication Headquarters in carrying out its functions. The speaker repeated that these were functions carried out directly or indirectly by the military in many countries. He explained, referring to the requirement that GCHQ's work maintain continuity of operations, that the action which the Government took to restrict staff representation at GCHQ was in response to the disruption caused between 1979 and 1981 when 10,000 staff days were lost through industrial action. The Government believed that it had an overriding responsibility to safeguard national security and therefore could not allow the continuity of GCHQ's operations to be threatened by industrial action.

As the first main problem of the case, the representative of the Government indicated that, in Britain, agreements reached between trade unions and employers were not legally enforceable and that, therefore, any offer of a no-strike deal from trade unions could never guarantee that future disruption would be avoided. In fact, a draft no-disruption agreement proposed by the Council of Civil Service Unions (CCSU) in 1984 was subsequently repudiated by two of the main unions. This risk of disruption would be inherent in any proposal to allow GCHQ staff to rejoin national unions.

The speaker thought that the second main problem was the difference of view between the United Kingdom Government and the Committee of Experts about the exemption of GCHQ staff from Convention No. 87 under Article 9. He emphasized that GCHQ staff included civil servants who come under the authority of the Foreign Secretary, as well as military personnel who come under the authority of the Secretary of State for Defence. If Britain suddenly imposed full military status upon these who had always enjoyed civilian status, it would be an arbitrary and unacceptable change for the individuals concerned, who regarded themselves as civilians and not as military personnel. He nevertheless considered that this was a difference of definition and not a real difference of function. He referred to the case of the European Court of Human Rights, which found in 1985 that the Government's action over GCHQ was not in breach of article 11 of the European Convention on Human Rights regarding freedom of association, since GCHQ was "a special institution whose purpose resembles to a large extent that of the armed forces and the police in so far as GCHQ staff directly or indirectly, by ensuring the security of the respondent Government's military and official communications, fulfil vital functions in protecting national security". He thought that the Committee of Experts had endorsed this view in practice in the 1994 General Survey on Freedom of Association and Collective Bargaining by noting that the exceptions authorized by Convention No. 87 were "justified on the basis of responsibility for the external and internal security of the State" (paragraph 55).

The Government believed that GCHQ was covered by the provisions of Convention No. 151, which allowed governments to decide on the extent of rights to trade union membership for public servants whose duties were of a highly confidential nature. It was therefore disappointing that the Committee of Experts dismissed this argument without specific grounds.

For the above reasons the Government representative considered that the position of staff at GCHQ needed to be regarded as an unusual and special case that fell outside the normal scope of freedom of association.

The Government representative further indicated the developments since the discussion of this case at this Committee in 1992, following the Government's assurance to continue the dialogue with the trade unions seeking an acceptable solution: there was a series of detailed and constructive discussions between the Secretary of the Cabinet and the head of the whole civil service, and the general secretaries of the national civil service unions; the Government Communications Staff Federation (GCSF) was formed and recognized by GCHQ management for all negotiating purposes, and now had membership of over 50 per cent of GCHQ staff; GCSF has been listed by the United Kingdom Certification Officer for Trade Unions and Employer Associations since 1985 and is recognized by the Certification Officer as operating largely in the same way as many other small trade unions in representing its members' interests. As regards the affiliation of GCSF to the CCSU, the speaker emphasized that the Government was prepared to make such affiliation possible but that the civil service unions were not prepared to accept it. Since the meeting between the Prime Minister and the unions in December 1993, there had been no formal proposals submitted by the trade unions but informal contacts had been continuing on this issue.

The speaker thought that the Government had thus clearly demonstrated its willingness to find a solution to this matter by pursuing a genuine dialogue. The proposals put forward by the Prime Minister represented a considerable change in the Government's position from 1984. The Government had taken note of the most recent observation of the Committee of Experts, thought that there was still scope to examine new possibilities for making progress and expressed its willingness to give consideration to any new proposals for the resolution of the problem.

Referring to the recent press information, the representative of the Government emphasized that no decision had been made to withdraw from the ILO and that no threat had been issued. He explained that the evaluation of membership of the ILO was part of the continuous evaluation which the United Kingdom Government undertook of its membership of all international organizations and the expenditure associated with them.

The Workers' members first clarified that only point 1 of the observation of the Committee of Experts was dealt with in this discussion. Referring to the long history of this case, they thought that its continuation without any resolution was a threat to the whole standard-setting machinery. The Committee of Experts' views had been clear and unequivocal from the beginning: denial of the right of GCHQ staff to join a union of their own choice is an infringement of Convention No. 87. The Government, however, consistently refused to accept the observations of the Committee of Experts and insisted on its own interpretation of Convention No. 87. As regards the interrelationship of Conventions Nos. 87 and 151, nothing overrode Convention No. 87. As to the second argument that GCHQ should be treated as a military establishment, if the Government could not put them in uniform, they were not military personnel in the context of this Convention. Regarding the question of a conflict of loyalty in the case of strike, the right to strike was a separate issue from the issue involved in this case. Referring to the Government's indication that the existence of GCHQ had recently been publicly admitted, the speaker noted that it should also be publicly revealed that trade unions had existed in that organization for about 40 years before the right to organize in that area was taken away. He also stated that despite the number of hours lost through strikes the full coverage of the operation was ensured because the trade union members in GCHQ were loyal citizens to the country.

In the 1992 discussion of the case, not only the Workers' members but also Government members and Employers urged dialogue between the United Kingdom Government and the trade unions. The Committee then "expressed its deep concern at the continuing refusal of the Government to implement the Convention as regards the situation of workers at GCHQ who still did not enjoy the right to join a union of their own choosing". Stressing that three years had elapsed since the Committee's hope for substantial progress, the Workers' members thought that the conclusions and how they should be expressed should be made only after the discussion as to how this case should be concluded.

The Workers' member of the United Kingdom continued the second part of the statement of the Workers' members. He first pointed out that in Britain agreements between unions and employers could be legally enforceable if the union concerned and the employer so wished, and that the trade union did suggest it as one of the contributions in meetings with the Cabinet Secretary. Secondly, there was nothing unusual about a mixture of civilian and military personnel working together. Thousands of members of his organization worked in the Ministry of Defence, worked with military personnel, managed military personnel as serving officers or are themselves managed by serving personnel.

Referring to the assurance made by the Government in 1992, he noted first that the conclusions of the Committee were reported to the Government, second, the dialogue with the trade union was resumed and remained open. The third point was that the Government would continue to look within the dialogue for a solution safeguarding the security of the country and acceptable to the parties involved. He agreed with the Government representative that the discussions with the Cabinet Secretary and the meeting with the Prime Minister were in good faith. During such meetings, the issue remaining between the two sides was a question of conflict of loyalty. As regards the offer of affiliation of GCSF to CCSU, the speaker explained the reasons why the workers rejected it. Firstly, the workers asked if GCSF would be free to affiliate to the Trades Union Congress or if it would be free to undertake transfer engagements. The answer appeared negative because of the possible conflict of loyalty, while the Government was prepared to consider the removal of the veto that the Director effectively had. The GCSF was thus not independent as it was supposed to be. Secondly, it would not have provided a solution in conformity with Convention No. 87 since there is no freedom of choice. Thirdly, it would bring no benefit to anybody, as the CCSU was no longer able to negotiate with the Government, except for the question of pensions, because the Government was ending national bargaining.

At the meeting with the Prime Minister, on the technical items on national security, workers did make proposals which would be acceptable to Government. As for the no-strike agreements, they offered to look at having legally enforceable contracts but the Ministers in the Government believed that there was a conflict of loyalty in being a national trade union member and being employed at GCHQ. Therefore, in spite of the willingness of the Government to continue dialogue, there seemed to be no proposals that workers could make to overcome this perceived conflict of loyalty.

Referring to the threat concerning membership of the ILO and a special paragraph, the speaker noted a direct press interview by the responsible Minister saying that if there was a special paragraph, then the position of Britain in the ILO was in jeopardy, which caused workers in the United Kingdom great concern. He added that in recent discussions with Ministers and the Cabinet Secretary, the Ministers said that special paragraphs were for military dictatorships. The same rule should apply to every country irrespective of its state of development, of its contribution to the ILO and of its size. The question was how to bridge the gap with the Government when the problem was only in Ministers' minds. The Government had no proposals and said that the trade unions should have them. So there had to be a solution or a special paragraph. The speaker concluded by recalling the fact that 11 years ago members of his organization, some of them for 30 years, were taken away by a sudden decision by the Government in contravention of Convention No. 87.

The Employers' members did not think it necessary to recall the details of the well known history of a case which first appeared on the agenda of the Committee in the middle of the 1980s. In addition, they were not directly concerned with a problem which did not involve private employers. This case was characterized by an unusual attitude of the two parties to stick to their respective positions.

Few new elements had been brought since the last discussion of this case. Discussions and negotiations took place, including at the highest level with the Prime Minister, but without reaching an agreement. The proposal by the Government of an independent staff association was rejected, while the Government did not want staff at GCHQ to join the TUC. The problem would have perhaps been resolved if this organ had been put under the authority of the Ministry of Defence or if the workers had been given military status, as was the case for activities of this type in certain countries. However, in the present situation of the case, it could only be resolved by conciliating two positions of principle, as recommended by the Committee on Freedom of Association: the Government's will to ensure that the service of GCHQ was not interrupted on the one hand and the determination of the workers that Convention No. 87 should be fully applied to them on the other.

They noted the Government's indication of their willingness to continue the dialogue and hoped that sufficient common sense and goodwill would be shown there so that a satisfactory solution could be found. Concerning the so-called "threat" referred to by the Workers' member of the United Kingdom, which the Government representative stated was without basis, it had no more to do with the work of this Committee than the prospective elections.

The Employers' member of Sweden pointed out that the Committee of Experts itself recognized that the staff at GCHQ ensured functions identical to those provided in other countries by military institutions, and that the exclusion of armed forces provided by Convention No. 87 would have been fully applicable to them, had they been administratively placed under the authority of the Secretary of State for Defence. The entire case should therefore be regarded as a purely administrative issue and not one of human rights.

He thought it regrettable that this case was treated, both in the United Kingdom and in the international sphere, as a main preoccupation of the ILO in the field of human and trade union rights, also taking into account the relatively small number of persons concerned. The attacks on the United Kingdom Government for a decade were particularly incomprehensible, taking into account that the ILO was practically silent for nearly a half century concerning the enormous and systematic violations of human and trade union rights in the Soviet bloc. Where were the proportions? He also found it obvious that it was for political purposes against a particular government or certain types of policies that the Workers' group had given the case such proportions. The speaker thought that it was not good for the ILO to be used for such purposes.

The Workers' member of the United States regretted that, after 11 years, the only new thing was the pressure from the Government on this Committee, threatening the withdrawal from the ILO if its rules were applied to the United Kingdom. It was without precedence that a country used such a threat of financial and diplomatic consequences to challenge the very integrity of this Committee and also the ILO itself. The rules should be the same for everybody, even for the rich and powerful.

The Workers' member of South Africa thought that this case concerned not only the United Kingdom but also a question of principle. In South Africa, the Government had proposed to deprive workers in the National Intelligence Service of their trade union rights. This was stopped by the workers who were determined to bring such violations of Convention No. 87 before the ILO if necessary.

He stressed that the Government of the United Kingdom did not comply with the recommendations of the Committee of Experts and even made the intolerable action of threat. To another country, this Committee did urge today that Convention No. 87 be fully respected. This was no doubt a particular case, but the principles were the same and should be applied equally. In contrast with the United Kingdom Government, the workers at GCHQ were not asking for special treatment. This Committee should maintain its consistency and strong will as to its principles.

The Workers' member of Germany deplored that a strong country with such a long tradition of democracy ignored the recommendations of the ILO. The situation of trade unions in the United Kingdom probably caused less problems than in other countries outside Europe. But if an interpretation was made to justify a special treatment for this case, it would ruin the principles of objectivity and universality in the supervision of standards' application, and it would also give the impression that special paragraphs were only for developing countries. It was true that these countries do not have the same means of influence and pressure.

The question of a special paragraph had already been discussed by the Committee at the end of the 1980s but so far these warnings have not led to a constructive solution. It was incorrect to think that the two parties were equally insistent in maintaining their principles: the workers had demonstrated their willingness to take account of the requirements of their security. In addition the problem should not be reduced to a purely administrative question since it was the very principle of the freedom of association that was challenged. The employers should consider the consequences upon their own right to organize if such a restriction was to be tolerated. For all these reasons the speaker thought that the Committee should take a firm position on this case.

The Workers' member of Canada first reacted to what appeared as a form of threat that the United Kingdom Government would withdraw from the ILO if it was treated like any other governments. Referring to the statement of the Government representative that no decision had been made to withdraw from the ILO and that such a decision would require careful evaluation, the speaker felt that it was obvious that the Government should have evaluated carefully their statement to the media. It was not the workers but the Government who had made this case a high profile one in the media.

In addition, some Government members expressed their irritation by this case coming back again. But all the members of this Committee had good reason to be irritated by the attitude of a government that insistently refused for 11 years to follow the recommendations of the authoritative bodies of the ILO.

Therefore, the speaker thought that the Government of the United Kingdom should not be discriminated against: after all the procedures exhausted during the last 11 years without the Government's complying with the requirements, a special paragraph was warranted.

The Workers' member from India summarized the principal problems. He indicated that he agreed with the declarations made by the Workers' members and that this case demonstrated an unfair and unreasonable practice on the part of the Government which violated trade union rights. Furthermore, a trade union was acceptable to the Government only if it was recognized as independent from the TUC. During the past 11 years the Government had been negotiating, but the delay in reaching solutions was also a denial of justice. The United Kingdom was wealthy and influential. Therefore the ILO should be careful not to apply a double standard or give special treatment in favour of the United Kingdom which would not also apply to developing countries. The present Committee always asked developing countries to immediately remedy violations of the Conventions. An inequality of treatment in favour of the United Kingdom would give rise to suspicion and damage the image of the ILO. Consequently, the case should be mentioned in a special paragraph, unless the Government gave assurances that it would resolve these problems in the near future, that the TUC can resume its presence in GCHQ, and that the original statute concerning the workers at GCHQ will be restored. The argument that a special paragraph would be used in the coming elections against the Government was totally unacceptable in this case.

The Workers' member of France stated that in the last few years the Government had made few credible arguments and that it was contradictory to have a civilian status if, as had been demonstrated, the workers at GCHQ carried out military functions. The United Kingdom was an important democratic country which formed part of the OECD and the G7; none the less, the Government exempted itself frequently from the social standards of the European Union and had violated the union rights of workers at GCHQ over the past 11 years. Furthermore, the Government had threatened to withdraw from the ILO if the Committee adopted a special paragraph. The Committee should not give in to such a threat. The statements of the Government representative gave a bad impression of the United Kingdom in the world. If this country continued to violate the social standards and the Conventions of the ILO, it would be converted into a free enterprise zone and unfair competition would exist. The contradiction between the United Kingdom's actions in promoting a social clause at the international level while at the same time reducing the rights of trade unions in the United Kingdom, an industrialized country which was one of the wealthier countries, warranted that the Committee adopt firm conclusions.

The Government member of the United States noted that this was one of the most difficult cases the Committee had ever discussed. She explained that, on the one hand, it was impossible to deny that freedom of association, including forming and joining a trade union of one's choice, was as basic a right in industrialized countries as it was in developing countries. On the other hand, this particular case had an extremely narrow scope, involving a relatively small number of highly technical employees dealing with matters of national security which were military in nature, and the potential conflict between loyalty to one's employer and loyalty to one's union was a very real concern. On the two previous occasions the Committee had discussed this case, her Government had joined in a strong, tripartite recommendation that the United Kingdom Government engage in substantive, frank and constructive dialogue carried out in good faith, so that a mutually satisfactory solution could be found that would be in conformity with the Convention. She regretted that the problem still had not been solved. She hoped that the present Committee would once again send a clear and strong message to the Government, and that the message would once again be unanimous. Such a unified signal was the best way for the ILO to encourage continued, genuine and intensified dialogue on the matter of freedom of association at GCHQ, so that once and for all this case could be resolved.

The Workers' member from Argentina expressed his concern over the attitude of the Government concerning this case for the last 11 years, and the fact that it had done nothing beyond making unfulfilled promises. The Committee on Freedom of Association had strongly urged the Government to strengthen its efforts to comply with the Convention. In previous years the Government had repeatedly defended the universal application of ratified ILO Conventions, without exception. In this case, a violation of Articles 2 and 4 of the Convention continued to impede the right to organize for a group of workers who had not been excluded by the Convention. Measures had been taken against their freedom of association; and in 1983 almost all members of the union had been dismissed. He considered that the Committee should adopt a special paragraph to demonstrate impartiality, independence and the need to apply the same rules to all countries.

The Government member of India stated that liberty came with certain obligations; therefore application of certain reasonable restrictions on fundamental rights of liberties was well recognized. What was a reasonable restraint was a matter of policy evolved in a specific ethos. In the particular case of GCHQ, the workers were not denied a right to representation through a grievance-registering mechanism. And the employers in question clearly performed functions flowing from the exercise of the sovereign power of the State, making them distinct. For these reasons, the restrictions imposed by the Government of the United Kingdom were reasonable, and this case was an example of the need to make the interpretation of ILO Conventions more flexible. The real functions of these employees should be taken into consideration instead of merely their civil or military status. ILO bodies must avoid a legalistic and rigid interpretation of Articles 2 and 9 of the Convention. Therefore the Committee should recommend that dialogue should continue, and the parties should be more flexible, but a special paragraph in the case of the United Kingdom was not only inappropriate, but unfair.

The Workers' member of Japan noted that the Committee of Experts had consistently asked that measures be taken by the Government concerning this case. Unfortunately, the measures had not been taken, leading to a double standard where the Government asserted its own interpretation of the Convention. If the Committee gave in to one government under mounting pressure, it would set a negative precedent. In this case the principles of independence, objectivity and fairness of the ILO supervisory machinery were at stake.

The Government representative of Germany set out the problems in this case and summarized the position of the Committee of Experts and the Committee on the Application of Standards in the last years. He recalled that the Committee of Experts had noted that this was an exceptional case. It had not asked directly that the legislation or practice in the United Kingdom change, but rather that the discussions be resumed in order to comply with provisions of the Convention. However, the situation had not improved and the parties could have done more. Therefore, the Committee should ask for other measures, but it should not adopt a special paragraph. The adoption of a special paragraph required the existence of both a sustained violation and a certain measure of gravity. Although there had been a sustained violation, the violation was clearly not so grave in comparison to other cases in respect of which the Committee had adopted a special paragraph. In the present case, involving 13 employees working at the GCHQ (at least as of three years ago), who had not made use of three options available and had not suffered either physically or financially, the question was whether they had been granted the full freedom of association rather than the right to organize. It was never alleged that any of these employees suffered any physical, or even financial, detriment. It had been mentioned numerous times that there would be no failure to comply with the Convention if the United Kingdom Government simply decided that these employees should be placed under the Ministry of Defence, indicating that the real issue in the case was the nature of the functions performed. Therefore, a clear difference existed in this case, as far as gravity was concerned, which made it difficult and impossible to support a proposal for a special paragraph. There was a danger that the special paragraph would lose its meaning and importance if it was adopted in this case. While recognizing that the Government did not seem to be ready to take all the necessary measures, the speaker hoped that there would not be a vote on this matter and indicated that, if there were, he would vote against a special paragraph.

The Workers' member of Finland, speaking on behalf of the Workers' members of the Nordic countries, stated that the United Kingdom Government's delay tactics had called into question the effectiveness of the ILO supervisory bodies. By opposing conclusions of the ILO supervisory bodies in this case, the United Kingdom Government had behaved contrary to both the Constitution of the ILO and the basic rules on which the ILO supervisory machinery was based. Taking into consideration the length of this case, strong actions and a special paragraph should be taken in order to secure the observance of Convention No. 87 in the near future.

The Government representative of Canada observed that the possibility of GCHQ workers joining other organizations created a risk which was a legitimate concern for the Government, and which was recognized as such by the Committee of Experts in its observations. It was perfectly within the realm of Convention No. 87 to prohibit the right to strike to workers in such sensitive and security-related areas. In other countries, public or civil servants engaged in similar duties were usually exempt from the scope of that Convention because they were usually included in the military or defence department. For this reason, a special paragraph clearly was not appropriate in this case, although the Committee should once again call upon the Government to resume dialogue. She stated that this case was not so serious as to warrant such attention in the light of so many other cases of much more grave violations but noted that it had existed for too long a time.

The Government member of Uruguay noted with concern that despite the observations of the Committee of Experts and the present Committee the parties had not arrived at positive results after such a long time. He was surprised that the Government representative had alluded to possible doubts concerning the loyalty of the civil servants in question toward the employer, since he believed that the issue of loyalty was set aside in 1991, given the statement by the Worker member of the United Kingdom in this respect. A solution to this problem could be reached by making a clear distinction between the possibility of freely affiliating with a union and the question of eventual limits on the right to strike. The speaker hoped that the democratic tradition of the United Kingdom would permit it to avoid a possible vote by the present Committee, and would assist in resolving the problems in question in the coming year. None the less, the Government must accept a definite compromise. Lastly, the speaker indicated that it was not good that this type of discussion on such a problem had been prolonged for so many years.

The Workers' member of Turkey stated that some governments of the developing world which did not fulfil ratified Conventions in their countries, when criticized by the present Committee, had tried to discredit the ILO by alleging that the ILO was an organization dominated by industrialized countries, which humiliated poor countries. This case was important for refuting these accusations. Therefore, he urged the Committee to resist any attempts to apply a double standard and to adopt a special paragraph.

The Government representative of Australia, after summarizing the problems and the position of the Committee of Experts and the Committee on the Application of Standards in the last years, noted that the United Kingdom case was only one of 59 observations by the Committee of Experts on Convention No. 87, covering countries from all regions and at various levels of development. This demonstrated the rigour of the ILO supervisory processes in seeking to protect the fundamental rights of workers. The speaker concluded by stating that the protection of workers' rights in this case should be made with a positive approach, seeking that the parties reach agreement.

The Government member of France indicated that this was an important and delicate case since it involved the principles of freedom of association which governments should respect, above all if they have ratified the Convention. The United Kingdom should be treated the same as all States and impassioned debates on this issue should be avoided. The options available to the present Committee made it less urgent to adopt a special paragraph. Following a jurisprudence, developed from considerable experience, the special paragraph procedure applied to all member States, regardless of their geographic location or their level of economic development, whenever two circumstances existed: when a grave failure of application persisted, or when there was a belligerence on the part of member States which resulted in grave violations of human rights, such as imprisonment, violence, arrests and assassination of union activists. The speaker believed that both conditions did not exist in the present case and summarized the position of the Government member of India favouring dialogue and discussion between the parties to resolve the serious but limited conflict.

The Government representative of the Netherlands suggested that the United Kingdom Government could accept an advisory mission of the ILO to facilitate negotiations between all the parties concerned.

The Government representative of South Africa supported the proposal made by the Government of the Netherlands, based on the length of the problem and its own experience of how very difficult disputes could be successfully resolved and reconciled by an ILO direct contacts mission.

The Government representative of the United States concurred with the proposal to request the United Kingdom Government to invite an ILO consultative mission to the United Kingdom to help seek a solution to the problem. Her Government would support Committee conclusions in this direction.

The Government representative of Turkey expressed objection to the inclusion of this case in a special paragraph.

The Government member of the United Arab Emirates, speaking also on behalf of the Government members from Saudi Arabia, Oman and Kuwait, supported the recommendation of the Committee of Experts urging the Government to adopt measures to resume dialogue with the trade unions with the objective of reaching a satisfactory solution for all of the interested parties. In order to arrive at a solution, it must be taken into account that this was a limited problem which should be considered in its appropriate dimensions. A clear distinction should be made between the right to organize trade unions and the right to strike. The status of the workers in question also must be taken into consideration, whether civilian or military. Furthermore, all of these points should be considered with regard to the context, culture and tradition of the United Kingdom. The Committee should find a solution by urging both parties to resume the discussions, but this case did not require a special paragraph.

The Workers' member of the Netherlands referred to the statement made by the Government member of France and indicated that the second criteria mentioned to adopt a special paragraph - the existence of gravity and problems involving questions of human rights - was not correct. He asserted that other types of violations also could be the subject of special paragraphs, and that was the criteria the present Committee followed. Otherwise, special paragraphs could only be addressed to military dictatorships.

The Government representative of the United Kingdom welcome the debate which he followed with much interest and expressed his agreement with the statement made by the Government member of France on the climate which had surrounded the debate which had made it a sober and responsible discussion. Many speakers had recognized the complexity of the situation and the difficulty in finding solutions. He emphasized that there was no truth to the suggestion that the United Kingdom had decided to withdraw from the ILO if a special paragraph were to be adopted. The Committee should decide the case on its merits and not on extravagant press information. Regarding the circumstances for adoption of special paragraphs, it was fundamental that all countries be regarded as equal concerning compliance with ILO standards. The United Kingdom Government did not want to be treated differently from other countries. However, special paragraphs must be reserved for serious cases. The issue of proportionality was important here, as had been noted by various speakers. In this respect, the situation at GCHQ was very particular. Workers had the right to join a union in the great majority of workplaces in the United Kingdom and if they were dismissed or their rights violated, legal redress existed. The speaker rejected the idea put forth by various speakers that the rights of workers in the United Kingdom were trampled under foot. The Government representative concluded by indicating that the proposal to send a mission to the United Kingdom was not for him to decide. None the less, if this proposal was adopted it would be considered by the Government.

The Workers' member of the United Kingdom noted that there were a number of errors in some of the statements, starting with the Employers' member of Sweden who failed to realize that the transfer of civilian staff of GCHQ to the Ministry of Defence would have created the same problem because the latter organization is unionized by civil service unions and would have resulted in the same loss of rights. He further noted that his union and all civil service unions in the United Kingdom are apolitical and are proud of serving governments, whatever their politics.

The speaker referred to the statement of the Government representative of Germany concerning the situation at GCHQ and noted that 7,000 people lost freedom of association rights in 1984; the figure 13 apparently came to mind because 14 people were dismissed.

He took exception to the Government representative of Canada's statement concerning the desire of GCHQ staff to join other unions. He emphasized that for the past 11 years they had had no rights to belong to any union, only to the staff association. No previous guarantees had been broken by the unions. Two of the civil service unions had repudiated agreements in 1984, but he recalled that the first party to repudiate such agreements in 1984 was the Government itself.

The speaker endorsed the Netherlands Workers' member's point and was straightforward concerning the need for a special paragraph: what he wanted was the restoration of trade union rights guaranteed under Convention No. 87 which were taken away from GCHQ staff 11 years ago. He renewed his willingness to engage with the Government in meaningful dialogue, although he noted that the Government failed to suggest any way in which it could be meaningful. He observed that everyone in Britain has legal recourse against individual dismissal, except those people employed at GCHQ who no longer have access to industrial tribunals. They had been forced to accept Š1,000 in exchange for losing their rights.

The speaker then welcomed the proposal by the Government representative of the Netherlands to send an ILO fact-finding and conciliation mission to the United Kingdom if this would stimulate meaningful dialogue.

The Workers' members congratulated the Government representative of the Netherlands for his suggestion that an ILO mission might be helpful and regretted that this suggestion came so late in the debate. They felt that such a mission might change the Workers' feelings with regard to a special paragraph.

The Workers' members observed that notwithstanding a certain sense of drama surrounding this case, it was a part of a slow procession of cases before the Committee. It had elements in it, however, which the Workers believed to be important and wished to emphasize in the debate.

Indeed, taking most of the Governments' statements into account, it was the Workers who should be threatening to leave the ILO and not the United Kingdom Government, because some of the statements made on this case were at their best, malign, and at their worst, mischievous, so that the discussion in this Committee stumbled from equivocation to downright misrepresentation. The whole issue was bedeviled by the special paragraph - the whole question of the special paragraph influenced the debate.

In the first place, the Employers attempted to play the issue down as an embarrassment that should go away. They made a valuable point, however, in reminding the Committee of the two points raised by the Committee on Freedom of Association when it first considered the case: firstly, that there should be an uninterrupted service at GCHQ if there was to be a settlement of this case and, secondly, that there should be a right to join a union for the staff, a union of their own choosing. This had also been the view of the Committee of Experts throughout, fully shared by the Workers who could not be accused therefore of taking an extreme position. They believed, however, that a boil, this particular boil included, had to be lanced if a cure was to be effected. Incidentally, the Workers' members rejected the insulting and false remarks made by the Employers' member from Sweden that the Workers' group stood by silently when the Soviet Union and the Eastern bloc were abusing human rights.

With respect to the comment of the Government representative of the United States emphasizing the small number of people at GCHQ and the fact that they were professional and technical staff, the Workers stressed that professional and technical workers were just as entitled to trade union rights as anyone else and one should not thrust them aside merely because their numbers were small.

Referring to the interventions of the Government representatives from Germany and France, the Workers' members argued that the key issue for a special paragraph was sustained violation, consistent refusal of the Government either to take notice of the Committee of Experts or of the conclusion of this Committee, or both. Special paragraphs, historically, had been given on a variety of cases including on purely technical cases involving no deaths, no outrage, no human rights violations. It was important, as far as this Committee was concerned, to clear up this confusion, which was used as an excuse to prevent any discussion of a special paragraph in connection with GCHQ, and not to have in any future discussions on this case, or any other case, the argument that special paragraphs had a special character because they should only be proposed when major human rights violations were concerned.

With respect to the arguments advanced by the Government representative of Canada that the GCHQ had got a union and therefore had nothing to complain about, the Workers' members pointed out that it was in fact a government-sponsored union, a house union, which was under the complete control of the Director of GCHQ. They also pointed out that the argument according to which Convention No. 151 had to override Convention No. 87, already very long ago had been rejected by the Committee of Experts as totally irrelevant.

Concerning a number of other government contributions which were helpful, they singled out one question which was strung through the debate, and this was about the military nature of the operation. According to one Government representative, for example, had GCHQ staff been under the Ministry of Defence it would have escaped. The Workers' members stressed that it was not possible because people working there were not military, they did not wear uniforms, they were not under service traditions and they did not get service pay, so this confusion should also be put out of the way. Indeed, there were trade unions throughout the Ministry of Defence where civilians worked with the military only GCHQ staff were excluded.

Coming to the issue of the special paragraph, the objective of the Workers' group was not a special paragraph for itself. The Workers did not believe, in the light of the attitude of the Government representative from the United Kingdom, that a special paragraph would change the situation. The issue has become a sort of political football within the governing party in Great Britain and the Workers did not want to play any part in political manoeuvring. This was not a political issue as far as the Workers were concerned, but the Workers' group, like everyone else, wanted a solution and a special paragraph in itself was not a solution, it represented at its best a spur to action or the ultimate frustration of the Committee. While on that basis a special paragraph in this case would be more than justified, the Workers' group supported the suggestion made by the Government representative of the Netherlands, and supported by others, for a conciliation mission, which might represent a road to a solution. In this connection, the Workers' group stressed the need for such a conclusion as to be virtually unanimously accepted by this Committee - Workers, Employers and Governments - and which should firmly invite the United Kingdom Government to accept the mission offered. There was no humility involved in them accepting this offer, but it should be recognized that a subsequent refusal either to accept the request when it was made or failure to take into consideration any suggestions which might emerge, will be viewed by everybody on this Committee as undermining the standard-setting aspects of this Committee's work. The Workers did not want to threaten anybody, nor to set time-limits, but time was running out on this particular issue and they hoped therefore that a mission, if accepted, could take place as quickly as possible and that conclusions could be reached in sufficient time for any discussion that might take place in this Committee next year, in sufficient time for it to have the knowledge that the mission had taken place and that the conclusions and the helpful nature of what they had done had produced a solution. On that basis, the Workers agreed to draw up a conclusion on this case for this year which would not be included in a special paragraph.

The Employers' member of Sweden, referring to his previous statement, explained that he did not accuse the Workers' group for not having criticized the Soviet bloc, but had talked about the disproportionality of this case.

The Workers' members accepted his apology.

The Workers' member of the United Kingdom, speaking on a point of order, repeated the comments he had made during the previous sitting in rejecting the accusations that there was a political motivation to the TUC bringing a complaint about the GCHQ at the request of the Council of Civil Service Unions who were the unions in GCHQ prior to the ban. All the unions in the Council of Civil Service Unions were trade unionists who did not affiliate to the Labour Party in Britain and were proud of being non-political in order that the British civil service should be non-partisan and serve efficiently governments of whatever political colour.

The Employers' members refrained from commenting on what had been said by individual delegates because those persons would not have the opportunity to react again. Nor would they be used to making conjectures on the sense to be given to an intervention. They would hold to what had been said but still wished to make some remarks of substance on two subjects. On several occasions, reference had been made to the question of the authority of the supervisory machinery and some people felt that this authority was being called into question. This was not totally appropriate because it overlooked the difference between domestic law and the way in which domestic law was implemented, and international law. International law was based on the wish of a country to be a member of an international organization, on the voluntary pursuance of the rules of an organization by a State. There were no ways of enforcing such legislation apart from trying to convince countries to obey the rules, and the ILO had a very well tried and tested procedure for supervising its Conventions, which was exemplified by the many hours of discussion on this case.

A second point which played an important role in this debate concerned the question of equal treatment; this was raised on several occasions, particularly in connection with a special paragraph. Equal treatment in the special terminology of the ILO meant the avoidance of any double standards. The emphasis with which this point was made seemed to be rather exaggerated because nobody would say they were not in favour of equal treatment. However, one could not establish what was equal treatment with some kind of a ruler or with a stopwatch, there were certain aspects to be taken into account, including the length of period that a case had existed and was being discussed. In this Committee there had been a whole number of cases which were dealt with at greater length than the case of the United Kingdom. Some of the cases had a tradition of more than 20 years and in most of them, in fact, there had been no special paragraph because what was decisive was certainly not the length of a case, but the content, the weight to be attached to a particular case. The Employers believed that the case of the United Kingdom was a very special case and for the Convention it was an atypical case. It was of a relatively limited dimension, it was not about freedom of association being called into question for a whole country, but about a small group of people in a semi-military profession. Nevertheless, the Committee had to find a solution for this case also, and the Employers regretted that up until now no solution had been found. They were demanding that serious efforts be made in order to bring about such a solution, which must be found basically by the parties to this dispute themselves. They must have to accept it and must be able to implement it. But it could also be useful to have a mission sent to the United Kingdom to provide additional assistance in bringing about the solution.

As regards the question of the special paragraph, on which there were many theoretical comments on the usefulness and on the harm which could possibly be done by such a measure, the Employers did not need to adopt a position because nobody had requested this special paragraph.

The Committee noted the oral information supplied by the Government representative, as well as the wide-ranging discussion that took place thereafter. In the discussion concerning this case, many references were made to the length of time which had elapsed since the case first came before the Committee and to the views expressed by the Committee on previous occasions.

The Committee deeply regretted and deplored the fact that the Government had not taken action to resolve the issues underlying the case.

In these circumstances, the Committee had given some consideration to the adoption of a special paragraph concerning this case. While a significant number of members of the Committee were disposed towards the adoption of a special paragraph, the majority were prepared to extend to the Government a final opportunity to resolve the issues.

In this respect the Committee had noted the Government's statement that further dialogue was possible and desirable.

The Committee hoped that it would be possible, with the exercise of common sense and goodwill, for a satisfactory resolution of this case to be reached in the near future. The Committee invited the Government to receive an ILO advisory mission to help this process.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative addressed the comments raised in the Committee of Experts' report concerning the complexity of the legislation. He indicated that he would address the general concerns raised and that his Government would provide more detailed information on specific points in its next report on this Convention. He stated that the aim of the legislative changes taking place in his country over recent years was to establish a proper balance between the rights of trade unions and employers and between trade unions and their members. These changes had been extensively debated and therefore had come about as the result of the democratic process. He affirmed his Government's position that the legislation in question was in full compliance with the provisions of the Convention and that there has been no regulation of the freedom of workers to organise their own trade unions or to adopt their own rules and determine the manner in which their union affairs would be conducted. The legislation, furthermore, provided special protection against legal proceedings which might otherwise be brought against trade unions calling on workers to break contracts in contemplation or furtherance of a trade dispute and in no way infringed upon the worker's right to take part in industrial action. The widely supported amended legislation was intended to protect the rights of individual trade union members by ensuring that they were properly consulted prior to a call for industrial action. As concerns the complexity of its legislation, the Government had made efforts to ensure that clear guidance was available by publishing a series of free up-to-date booklets explaining the legislation as it applied to employers, workers and trade unions. Furthermore, the Government intended to bring all the legislation together into a single consolidated Act. New measures had been introduced in this regard since the recent elections. He concluded by assuring the Conference Committee that the Government would supply full information concerning the progress of this legislation.

The Workers' members welcomed the statement made by the Government representative that a consolidation of legislative texts concerning labour issues would be made shortly. Nevertheless, they stressed that information from the British Trades Union Congress indicated that the overall legislation had become not only too complex but also oppressive. Even if the trade unions of some countries felt that they could not function without detailed legislation regulating their rights, British trade unions were of a contrary opinion. In fact, simply considering the number of legislative texts and their complexity, the legislation was oppressive. Furthermore, some of this legislation considerably impeded the activities of the trade union movement. The situation had come to a point where the ordinary trade union delegate no longer understood the legislation and was therefore tempted to curtail participation in trade union activities to the detriment of the movement. Whilst there would always be men and women willing to dedicate all their time, indeed their whole lives to the trade union movement, many in some parts of the world had died for the movement. If ordinary members were deterred from taking an active role at a local level in fear of contravening the law, this would be a great loss to responsible trade unionism. As concerns the consolidation of the legislative texts into one Act, they stated that, according to the information they had, the Government was also going to adopt other laws concerning trade unionism. Given that trade unions could not request the Government to introduce legislative amendments at the same time that the consolidation was being considered, they requested the Government to pause for a moment and to consult with the trade unions in order to review the provisions which could be eliminated not only from the new Acts but also from those which had already been adopted so that all of the legislation would be in conformity with the Convention. This would permit a more in-depth examination of the entire legislation later on.

The Employers' members expressed a certain discomfort with respect to the comments made by the Committee of Experts concerning the volume and the complexity of the legislation. The Committee of Experts had perhaps condemned the Government too rapidly by, for example, noting an incompatibility with the Convention and then requesting full information in order to determine if there was a violation. As concerns more specifically the volume and the complexity of the legislation, the Employers' members, stressing that there was no Convention providing that national law had to be simple, feared that the Committee of Experts used subjective criteria. In an ideal world laws would always be simple and everyone would subscribe to them. Unfortunately, this situation was much more complicated, particularly for historical reasons and laws naturally had a tendency to become more complex. It appeared that the Committee of Experts had concluded that one or two provisions could be interpreted in such a way that there could be a violation of the Convention. Nevertheless, practically all provisions of national law everywhere could be interpreted in this manner, as the criteria was so large that it opened the door to abusive interpretations. If provisions were to be criticised, it should be done in a concrete fashion. The criticism made by the Committee of Experts concerning the complexity of legislation was not a valid reproach to be made against a country. It would be better to cite a specific provision which was in violation of a certain Convention. This was the only rational approach. As concerns the measures taken by the Government to consolidate legislative texts, the Conference Committee would have to wait for the texts in order to undertake a detailed examination.

The Government representative assured the Committee that it would convey these comments to his Government. He had noted that this issue of complexity of legislation had to be seen taking into account the needs of the ordinary workers and their trade union representatives and he stressed that most of the laws on this subject dated back 20 years. The Government would supply in its next report on this Convention the supplementary information requested by the Committee of Experts which permit further review of this question next year.

The Government representative, with respect to the situation at the Government Communications Headquarters (GCHQ), recalled that his Government had explained in some detail in previous discussions in this Committee its reasons for maintaining that there was no substantive case to be answered. He reiterated three main points maintained by his Government concerning this case: (1) GCHQ staff were engaged in vital intelligence gathering and communications activities which formed part of the United Kingdom's national security and were therefore covered by the provisions of Convention No. 151 which allowed exemption from the right of association for public servants who were engaged in work of a confidential nature; (2) This case related solely to one establishment. Furthermore, similar establishments in other ILO member States were generally staffed by military personnel and thus excluded from the provisions of Convention No. 87; (3) While GCHQ employees may not belong to national trade unions, they are free to organise in a trade union based on the workplace called the Government Communications Staff Federation. This Federation, which is registered as a trade union under the appropriate legal provisions of the United Kingdom, had in its membership more than half the present employees at GCHQ and represented them both individually and collectively in negotiations over pay, conditions of service and a wide range of other issues. It is clear, therefore, that employees at GCHQ did retain the right to trade union membership and representation.

Last year, the Conference Committee concluded that, despite the substantial difference between the views of the Government and those of the unions on trade union representation at GCHQ, the Government should reopen dialogue with the unions with a view to finding a solution in full conformity with the Convention.

Prior to last year's Conference there had been no discussions on this issue between the Government and the trade unions for over six years. The Government representative informed the Committee, however, that as a result of its conclusions last year, a dialogue had begun. The Prime Minister wrote to the General Secretary of the Trades Union Congress on 25 June 1991, setting out the Government's views on the matter, but at the same time offering the unions the opportunity to discuss union representation at GCHQ with the Head of the Home Civil Service during one of their regular meetings with him. The Prime Minister wrote again on 20 December 1991 reiterating this offer. This information was provided to the Committee of Experts at the end of 1991. These letters led to a resumption of dialogue. On 18 February 1992, a special meeting was held to discuss the GCHQ issues between the Head of the Home Civil Service and the general secretaries of all the civil service trade unions. This meeting did not result in an agreement on how the substantial differences remaining between the parties might be resolved. The issues were indeed difficult and highly sensitive, affecting national security. The Government had made clear, however, at that meeting and subsequently in a letter to the Secretary of the Council of Civil Service Unions, dated 24 February 1992, that despite these differences, the Government remained willing to consider any new proposals the unions might wish to put forward. The Government concluded its letter by noting that there was still a fundamental incompatibility between the propositions of the two sides which could not be easily resolved. It indicated, however, its willingness to consider any new proposals the unions may wish to make which would guarantee the Government the absence of any disruption to essential security operations. The Government had, therefore, responded at the most senior level to the conclusions concerning GOCHQ reached by this Committee in 1991 and the dialogue remained open. While he noted that the Workers' members might maintain that this meeting merely demonstrated that there was no room to propose arrangements which would be acceptable to the Government, the Government representative recalled that it was acknowledged in this Committee's debate in 1991 that the differences between the two sides would not be easy to resolve and neither the Government nor the unions could be expected to find a complete solution easily or quickly. The activities at GCHQ involved essential operations of national security and the Government had to be fully satisfied that these would be safeguarded from any form of disruption. It might not be possible to bridge the substantial gap between the Government and the civil service trade unions; nevertheless, the Government was ready to discuss any proposals that could offer the necessary guarantees. Such proposals would be considered fully and fairly on their merits. The criticisms made of the United Kingdom at the 1991 Conference and contained within the Committee of Experts' latest comments had produced a response from the Government. Careful note had been taken of the supervisory bodies' comments. The Government was willing to continue this dialogue in an attempt to reconcile the differences between the two parties and would consider any constructive suggestions to this end. He urged the Conference Committee to accept the action taken to reopen dialogue with the unions as a step forward and to support its continuation.

The Workers' member of the United States spoke on behalf of the Workers' members. They expressed their dismay at the inaction on the part of the Government following the lengthy discussions on this case last year in this Committee and the unanimous conclusion it reached urging the Government to undertake remedial action in the shortest possible time. The substantive points of the case had already been settled last year and did not need to be repeated. In 1991, the Conference Committee had expressed its deep concern at the lack of dialogue between the Government and the trade unions at GCHQ concerning the ban of their right to join unions of their choice. This Committee urged the Government to reconsider its position by promptly resuming the dialogue with a view to finding a solution in full conformity with the Convention and requested the Government to report in 1992 to the Office on the real and substantial progress made. Unfortunately, no progress could be noted. The Committee of Experts' report indicated that the Government had reaffirmed its belief that its actions in respect of GCHQ were in line with its obligations under ILO Conventions. The Committee of Experts further noted that they had not been provided with any new element to lead them to modify their previous observations on the merits of the case and urged the Government to resume in the very near future constructive discussions calculated to lead, through genuine dialogue, to compromise acceptable to both sides. They considered that the meeting held between the Government and trade union representatives was merely a facade and did not constitute a genuine constructive dialogue which would lead to reconsideration of the Government's position or a compromise acceptable to both sides as intended by the Committee of Experts and by this Committee. They believed that it was clear that the Government had no intention to consider any arrangements or proposals involving representation by free trade unions. It, therefore, appeared that the Government wished to be ruled by a different standard than those governing other member States which had ratified the Convention. They hoped that the Government representative would convey to his Government the Workers' members' desire for real movement in this case. The attitude taken by the Government, in sharp contradiction with its long history of enlightenment and dedication to ILO affairs, unfairly and unnecessarily flaunted the ILO supervisory system, setting a bad example for the faithful observance by developing countries having ratified the Convention.

The Workers' member of the United Kingdom also spoke on behalf of the Workers' members. The Workers' members stated that it was difficult to determine from the statement made by the Government representative whether the Government had changed its position. They recalled that in 1991 there was unanimity on this case that a continued dialogue was necessary. The Government had been requested to take action to this end because this Committee was tired of dealing with a case of no progress and wanted to get on with its work in many other parts of the world. They noted that the Minister had not addressed this Committee on behalf of his Government and whilst they were sure that the Government representative who had spoken did so with the full authority of his Minister they considered that this could be considered to be partially a political issue since all parties at the recent general election, except the one elected, promised to restore freedom of association at GCHQ. The politics of the United Kingdom did not concern this Committee but the issue had been raised to establish that this case did not concern a constitutional issue, since it could be argued that the other political parties which were willing to restore the rights of GCHQ workers were not concerned about national security. They noted that this was an old case which had been the subject of great speculation and discussion in the corridors. This case raised very serious questions about the authority of the standard-setting and supervisory functions of the ILO. If the Government of a well-known and formerly powerful country appeared to hamper, to equivocate or even to ignore the views of the Committee of Experts and of this Committee, then the whole process would be undermined. On the surface this case appeared to deal with a relatively small issue but if this Committee could not tackle a small case, a case which nevertheless concerned a vital principle, how could it deal with the horrors of some of the cases brought before it involving death squads and disappearances. The Government representative had not attempted to argue as they had done on previous occasions in detail that the situation of the GCHQ workers was not in contravention with the Convention. He had argued, however, that these workers did have a union. This "union", however, had no certificate of independence and was not accepted as a trade union. The High Court would shortly judge whether or not this union actually was independent. If the High Court determined that this union was not independent, then the Government would have to stop saying it was. Paradoxically, if the Court decided the union was independent, the Government would have to ban it. In any event, the question of whether the present situation at GCHQ was in contravention with the Convention had already been determined by the Committee of Experts and by this Committee last year and in previous years as a study of the conclusions on this case would show. In 1991, therefore, this Committee focused on the need for the Government to resume dialogue with the trade union on this case. They recognised the need for guaranteed, uninterrupted service at GCHQ and agreed that the Conference Committee could not indicate the manner in which this should be assured, but insisted that this be negotiated with the union. It was necessary to examine in detail the statement made by the Government representative that dialogue had taken place. The dialogue referred to by the Government representative consisted of the following:

- a letter from the Prime Minister to the TUC, immediately after the 1991 Conference, indicating its Government's continuing firm commitment to its present policy on union representation at GCHQ;

- a letter from the Head of the Home Civil Service to the civil service trade unions indicating the Government's intention that the ban on national trade unions at GCHQ would continue - and this was from the person appointed to have any discussions with the trade unions;

- a new letter from the Prime Minister in December 1991 reiterating his previous position;

- a meeting in which the Head of the Home Civil Service affirmed the Government's belief that it was not in contravention with the Convention and had not changed it position that the arrangements in GCHQ were fully satisfactory. The Head of the Home Civil Service further indicated that the Government knew of no arrangement which it might consider to resolve the situation in a satisfactory manner for both parties.

The Workers' members queried whether there was any point in discussing this case if the Government had no intention to change its position. They therefore requested the Government representative to indicate whether the Government might actually be willing to reach a conclusion which would be acceptable to both sides and thus reassure this Committee of a genuine dialogue so that real negotiations with the trade unions could take place.

The Employers' members recalled that this case concerned the Government Information Centre and that the work carried on there could not be interrupted for security reasons. In the beginning of the 1980s there had, however, been strikes there which led to the alternative offered to employees with the result that GCHQ workers no longer had the right to join the organisations of their own choosing. Over several years, there had practically been no contact between the Government and the trade union. Recently, however, there had been high-level conversations and even an initiative by the Prime Minister. The conclusions of this Committee in 1991 had been followed to little effect but there had, nevertheless, been a first contact had that constituted progress. The solution could only be found at the national level, but the Conference Committee could play a role as a catalyst and be a positive influence. Some new elements could be taken into account: new elections had been held and a new Labour Minister had been named and this might create a new atmosphere in the country; furthermore, a stronger Government could make more concessions. In any event, as had already been stated last year unanimously, discussions should resume and continue in a substantive manner and not only in form. Two elements were therefore essential: first, the Government had to be assured that the work at GCHQ would be carried out without interruption. Secondly, the workers had to be free to join the organisation of their choosing. The Employers' members appealed to the two parties to take up a constructive dialogue in order to attempt to find a solution.

A Government member of Switzerland noted the Government representative's indication that it was ready to continue a constructive dialogue and that indeed it appeared that a certain dialogue had been re-established. Even if some considered this dialogue to be sufficient and others felt that the Government only turned a deaf ear, progress could be noted as compared with previous years. As had been noted by the Workers' members and the Employers' members this was a case typically concerning internal politics, magnified by the circumstances. This situation came out of the circumstances prevailing in the beginning of the 1980s when the Government of the United Kingdom was involved in a conflict which directly threatened its security. The tense climate of international relations had changed and this détente could be found in the ILO. The Committee had therefore to show its wisdom and also its determination. Democracy was a valid concept for all countries; the universality of standards and the efficiency of the supervisory mechanism ensured that the Convention must be applied equally. This Committee must therefore make conclusions, very strict if necessary, inviting the Government, which had an important role in the ILO, to make a special effort to ensure dialogue. The Experts had emphasised in their report that workers had the right to establish organisations of their own choosing and that the right to organise did not prejudge the right to strike. The Committee of Experts had urged the Government to resume in the very near future constructive discussions calculated to lead, through genuine dialogue, to a compromise acceptable to both sides. The speaker urged the Government to respect the conclusions of the Committee of Experts in the same spirit.

A Workers' member of Pakistan stated that the member States of the ILO, whether developed or developing, must all respect the fundamental principles of the ILO Constitution and the Declaration of Philadelphia. One of the essential principles in this context was Convention No. 87. Universal principles applied in all countries and there should be no discrimination in this regard. Western countries which boasted to be the champions of democracy had responsibility and special obligations towards the ILO because they were among the countries which founded the Organisation. The United Kingdom had ratified the Convention in 1949 and when member States ratified a Convention they undertook to respect the relevant international obligations and to bring their legislation into conformity with the Convention. The Committee of Experts had clearly indicated that a change was necessary as concerned the situation at GCHQ and the speaker appealed to the Government to resume and intensify a real dialogue with the trade union so that the Convention would be respected.

A Government member of Canada recalled that the Convention established one explicit right and two implicit rights. The first was the right for workers' organisations to freely establish the organisation of their choosing. The two other rights concerned collective bargaining and the right to strike which were not explicity mentioned in the Convention but developed from the jurisprudence of the ILO's supervisory bodies. GCHQ workers were now members of a trade union which had the right to bargain collectively. They did not have the right to strike, but that fell under one of the exclusions accepted because of the nature of their activities. Still, they could not join a national trade union and this seemed to be due to the fact that, given the British system of industrial relations and legislation, the Government could not obtain any real guarantee that there would not be a strike at GCHQ if the workers in question were members of a national trade union, even if they gave a verbal guarantee. This Committee did not have ready-made answers but it was encouraging to note that the dialogue had been resumed when it had not existed for several years. It was perhaps not a very constructive dialogue up to now and there had not been concrete results, but the dialogue had been opened which, in itself, was encouraging. The speaker associated herself with the Employers' members in urging the Government to pursue the dialogue in a constructive spirit so that the parties themselves could come to a satisfactory agreement.

A Workers' member of Norway speaking also on behalf of the Workers' members of Denmark, Finland, Iceland and Sweden stated that the United Kingdom Government had not undertaken a real dialogue with the trade unions which would permit resolution of this case. The trade unions had indicated that they were ready to conclude an agreement with the Government as concerns the right to strike. This case therefore could be resolved if the Government respected the right of workers to establish an independent trade union of their choosing. If the Government did not accept this compromise, that would constitute reason for mentioning this case in a special paragraph. Furthermore, they hoped that the Government in consultation with the International Labour Standards Department would submit this dispute as soon as possible to the International Court of Justice, as had been requested by the trade union. The Workers' members of the Nordic countries were bound to make a further appeal to discuss the question of mentioning this case in a special paragraph.

A Government member of Australia recalled that his Government had already spoken in 1991 to express its concern over the lack of progress in this case, which even if it largely concerned questions of a technical nature, also raised a problem of fundamental principles: the right of workers to freely organise. Still, this problem could never be resolved in a satisfactory fashion if the specific circumstances prevailing at GCHQ were not taken into account. The fact that there were discussions which were still open between the Government and the trade unions was encouraging, but it seemed that the dialogue had not been particularly positive or constructive up to now. Furthermore, the discussions had not given rise to concrete and specific proposals even though certain proposals had been made by the trade unions in 1984 to the House of Commons Select Committee on Employment. This case would never be resolved without a willingness on both sides and the speaker therefore firmly appealed to the Government to commit itself without reservation to a constructive dialogue in order to finally resolve this case.

A Workers' member of Spain stressed that the Government, in a letter sent to the trade union, had stated that it saw no use in the discussions. There had therefore been no progress but rather a step backwards since 1991. Concerning the substance of the issue, the problem was that the workers did not have the right to join organisations of their own choosing. The Government attempted to justify this prohibition because of the strategic importance of GCHQ, but if this were true, only workers in centres without any importance would then be able to have the right to join the organisation of their choosing. Freedom of association could not be subordinated to the importance of the establishment in which workers were employed. This approach would indirectly raise the question of who would decide on the strategic importance of an establishment. If it were the Government, then it would also have the right to determine which workers could or could not join the organisation of their choosing.

A Government member of the United States recalled that her Government had joined the consensus prevailing in this Committee in 1991 to appeal to the Government of the United Kingdom to resume a dialogue with the trade unions on the question of the GCHQ. Welcoming the interest and intent expressed by the Government to continue the dialogue, the speaker nevertheless expressed her regret that there had not been more progress more rapidly. She hoped that the Government would not only continue but intensify the dialogue with the trade unions with a view to determining whether it was possible to reach a mutually satisfactory solution taking into account the special needs at GCHQ. The effectiveness of the supervisory machinery depended on dialogue. This did not necessarily imply agreement, but rather a willingness to listen to the other party and efforts of good faith by both sides to create an atmosphere of reat and constructive dialogue. This Committee could not solve this issue in the place of the Government and the United Kingdom trade unions, but it should be hoped that its efforts would help the parties to find a solution.

A Workers' member of Greece stated that if the dialogue begun in this Committee did not continue in the country in question, then it was a dialogue among the deaf. The United Kingdom was one of the most industrialised countries with a long democratic tradition, and which affirmed the respect of trade union rights and liberties. It did not respect this Convention, one of the essential ILO Conventions, if not the most fundamental. If this developed democratic country adopted such an attitude, what could be hoped for from developing countries which were confronted with serious economic difficulties? The attention of the United Kingdom Government should be drawn to this aspect because its attitude put the ILO in danger.

A Government member of Germany expressed his disagreement with respect to certain comments made by the Committee of Experts. First, as concerned the relationship between Conventions Nos. 87 and 151, there was no doubt that the latter established a specific standard which took precedence over the former or complemented it. The attitude of the United Kingdom Government in this case, however, was clearly not in violation with Convention No. 151. If the Experts felt that there was a violation of Convention No. 87, that would mean that the Conference, 14 years ago, had intentionally accepted the possibility that there were situations compatible with the new Convention No. 151, but not with Convention No. 87, adopted almost 30 years earlier and already ratified by a large number of countries. Secondly, the speaker expressed his reservations with respect to the rigidity of the Committee of Experts which had not taken into account the fact that the Secret Services in the United Kingdom were subordinated to the Home Office and not to the Ministry of Defence. The speaker recalled that he had entirely subscribed to the opinion of the Conference Committee in 1991 to urge the United Kingdom Government to enter into dialogue. The Government representative had indicated that there had been dialogue both written and oral, but the speaker stressed that this must be more than a mere formal contact. There must be in reality a resumption of true dialogue on the substance. The Committee should perhaps also give some indication in these discussions so that the Committee of Experts, when it meets again in March 1993, could proceed with an examination of the correspondence exchanged and the contents of the discussions. Without going as far as to suggest to this Committee that it should give indications on the contents of this dialogue, as had been done by the Workers' member of Norway, the speaker stated that the dialogue must be pursued and improved.

A Workers' member of the United States, in the name of the Workers' members, requested the Government representative to indicate whether, in resuming the dialogue, the Government was prepared to reconsider the prohibition made for workers at GCHQ to freely join the organisation of their own choosing. Only if the reply to this question was affirmative would this be a constructive and real dialogue which would permit movement towards a satisfactory solution.

The Government representative thanked all the speakers for their contributions and assured the Conference Committee that he had taken careful note of all the points made. He recalled, as had already been indicated by a number of speakers, that prior to this Committee's meeting in 1991 no discussion had taken place between the Government and the national trade unions for over six years. The core of the Committee's 1991 request, therefore, was that this situation would change. The dialogue now has been reopened. It must be recalled, however, that the issue was an extremely sensitive one and that it would be extremely difficult to find a solution which would sufficiently protect and maintain the interests of all the parties concerned. Nevertheless, his Government wished to maintain and develop a constructive dialogue with the trade unions. He considered that the best chance for progress would be through the continuation of the dialogue rather than calling up past differences. He assured this Committee that: (1) he would personally and immediatly report to the Ministers on the views expressed and conclusions reached in this Committee; (2) the dialogue which had been resumed with the trade unions remained open; (3) his Government would continue the dialogue to look for a solution which both fully safeguarded the national security interests and was acceptable to the parties involved.

The Workers' members noted that this Committee was entitled to have some expectation that there would be a solution to this case. As concerns the Employers' members' comment concerning the fact that a new Government was in power, they expressed the hope that the Government's new position of strength would enable it to be generous and to enter into a constructive dialogue. They agreed that there must be an assurance that there would be no interruption in the work carried out at GCHQ, but the workers must also be guaranteed the right to join the trade union of their own choosing. With reference to the comment made by the Government member of Canada concerning the difficulty in ensuring that there would be no strikes at GCHQ if the workers were permitted to join national trade unions, they recalled that it was possible for governments to introduce restrictions on strikes which were perfectly in conformity with the Convention. It therefore was possible to reach a conclusion satisfactory to the concerns of both parties which would be in conformity with the Convention. The Federation which GCHQ employees could presently join was not a true trade union and had not been accepted for registration as an independent trade union. They stressed that they were not promoting the interests of individual trade unions but rather the issue of the freedom to join the trade union of one's own choosing. No practical proposals had been put forward by the Government before this Committee to resolve this case. Clearly a dialogue was not merely a succession of monologues. As had been indicated by the Government member of Germany, a serious will to produce results had to be demonstrated by the Government. A special paragraph had been proposed for this case and this question seemed to dominate the concerns of this Committee's members. The more important issue, however, was not whether to have a special paragraph, but rather how to ensure free trade unionism at GCHQ. A special paragraph was not only to be used for serious violations against human rights but also as a special note to express regret at the refusal of a government to cooperate with the Committee of Experts and this Committee, which had in fact happened in this case. They could forgo the special paragraph if they could be reassured that the Government intended to make all efforts to ensure genuine dialogue on this question with a view towards a solution acceptable to both parties. They urged that the conclusions be drawn up very firmly in that light and in a manner which made it clear that substantial progress had to be made. The Government representative appeared in his final statement when he referred to a solution "which was acceptable to the parties involved" to be attempting to fulfil the commitment requested by this Committee. It appears that the Government representative felt this to be so and if this now was shared by the whole committee a special paragraph would not be appropriate.

The Employers' members stressed the large consensus in this Committee concerning the evaluation of the situation at GCHQ. All the speakers had expressed the hope that the discussions begun would continue in a more intensive and constructive fashion and that they be more targeted. Nevertheless, two essential elements had to be present in order to find a satisfactory solution for both sides: the Government must be assured that the work would not be interrupted, and the workers must be free to join the organisation of their choosing. It was not for this Committee to indicate in detail to the parties the manner in which to arrive at such a solution, but the fact that the Minister himself would intervene now in the dialogue should be welcomed as it constituted an additional guarantee of success.

The Committee took note of the general discussion on the question of the nature and complexity of the legislation, and of the information supplied by the Government in this connection. It understood the Government's undertaking to supply full particulars to the Committee of Experts on the different points raised by that Committee. It hoped to be in the position to make a full assessment of the situation at its next session. Concerning the GCHQ question, the Committee took note of the information supplied by the Government representative as well as of the discussions which had taken place. The Committee once again had to express its deep concern at the continued refusal of the Government to implement the Convention as regards the situation of workers at GCHQ who still did not enjoy the right to join a union of their own choosing. The Committee noted the correspondence exchanged and the recent meeting at a high level which took place with the unions. Nevertheless, it deplored that these initiatives did not result yet in a genuine dialogue and did not meet so far the wishes expressed by the Committee last year. Taking due note of the Government's declared intention to reach a solution on this question, satisfactory to all parties concerned, it strongly hoped that this statement would be rapidly followed by a substantive, frank and constructive dialogue, carried out in good faith, so that a solution in full conformity with the Convention could be found to this problem which had been raised by the Committee of Experts and discussed by the Conference Committee for many years. The Committee expressed the very firm hope that, as from next year, it would be able to take note of substantial progress in this matter. The Committee intended to examine this case again at its next session of the Conference.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

In their 1991 report the Committee of Experts made observations on a number of aspects of the application of Article 3 of the Convention with particular reference to the Employment Acts of 1980, 1982, 1988, 1989 and 1990 and the Trade Union Act of 1984. The following represents the United Kingdom Government's response to the points raised by the Experts' observations.

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

The United Kingdom Government is of the view that provisions are needed to ensure that trade union members are free "to make up their own minds and follow their own consciences without fear of disciplinary action by their union".

The United Kingdom Government:

(a) therefore welcomes the Committee of Experts' view that section 3(3)(c) of the 1988 Act, which states that trade unions may not discipline members who, in good faith, assert that their union has breached its own rules or the law of the land, is not incompatible with Article 3 of the Convention;

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

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

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

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

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

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

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

2. Indemnification of union members and officials

The United Kingdom Government:

(a) welcomes the Experts' recognition that nothing in the provisions of section 8 prevents a union adopting any particular rule;

(b) notes that the Experts are now suggesting that section 8 of the 1990 Act should be "amended" rather than - as in its 1989 observation - "repealed":

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

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

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

(f) cannot agree that there is any need to amend the legislation as suggested by the Experts, since its present terms are not incompatible with any guarantee afforded by the Convention.

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

The United Kingdom Government:

(a) sees no further argument in the Experts' observation which demonstrates that any change to present law is needed to ensure compatibility with the guarantees afforded by the Convention;

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

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

(d) cannot find in the provisions of Convention No. 87 any authority for the Experts' conclusion that the Convention requires that calling for, or otherwise organising, the particular forms of industrial action which it mentions ought to have legal protection;

(e) will certainly provide full details of the provisions of the 1990 Act, as appropriate for the purposes of the next article 22 report on the Convention and, accordingly "

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

4. Dismissals in connection with industrial action

The United Kingdom Government:

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

(b) regrets that while the Experts' observation mentions certain points made in the United Kingdom Government's article 22 report, which demonstrate why legislation suggested by the Experts is unnecessary or inappropriate, none of those are itemised in the observation itself;

(c) wishes to place on the record the fact that the United Kingdom law and practice include the following features:

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

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

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

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

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

(vi) while workers' terms and conditions may be established by collective agreements made between employers and trade unions, in the United Kingdom employees wholly free to decide to take industrial action without having to take into account potential consequences for their union in terms of its contractual obligations;

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

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

5. Complexity of the legislation

The United Kingdom Government:

(a) can confirm, as indicated in the 1988-90 article 22 report, that it is willing to bring forward a "consolidation" measure as and when resources and the legislative timetable permit;

(b) draws attention to the practical distinction which was identified in the 1988-90 article 22 report between a "consolidation" measure (which would bring together in one statute provisions which are at present to be found in a number of statutes), and a measure which would effect some substantive change to the law as it presently stands;

(c) reiterates that the government believes that nothing in United Kingdom general employment law is incompatible with any guarantee afforded by any ILO Convention ratified by the United Kingdom; and, accordingly "

(d) rejects the suggestion that there is any need to use the occasion of such a "consolidation" measure to include provisions which would effect substantive changes to the present law applying to industrial relations and trade union affairs.

In addition, a Government representative of the United Kingdom recalled that the experts' observation dealt with two separate issues, one concerning the dismissal of workers at the Government Communication Headquarters (GCHQ) and the second, a number of observations on Article 3 of the Convention in relation to a series of employment and trade union acts passed during the 1980s. Written comments on the second issue dealt with in the Committee of Experts' report had already been provided in the written information communicated by his Government. He expressed the hope that this response would be passed on to the experts for examination. In these circumstances he considered it most appropriate to defer discussion of these matters and to restrict the discussion to the subject of GCHQ.

Although under the ministerial responsibility of the Secretary of State for Foreign and Commonwealth Affairs, GCHQ was not part of the Foreign and Commonwealth Office, being in fact one of the United Kingdom Security and Intelligence Services and forming an integral part of the United Kingdom's organisation for defence and national security. It provided vital operational support to the armed forces of the United Kingdom and those of its allies, including a non-stop, continuous watch for any form of armed hostile activity. Between 1979 and 1981 GCHQ saw a series of severe disruptions through industrial action with the loss of 10,000 working days. These disruptions were not related to any grievance specific to GCHQ but its employees were used as part of a broader campaign within the context of a national civil service negotiation. Following this and after long and careful consideration of all the implications, including its international obligations under ILO Conventions, the Government changed in 1984 the terms and conditions of its employees at GCHQ. The main condition altered discontinuing the freedom of workers at GCHQ to belong to any trade union other than one based in that particular establishment. The Government's action was aimed solely at ensuring the continued performance of security operations at GCHQ, in the firm belief which many other Governments shared that it was unacceptable to have a top-secret intelligence establishment vulnerable to national strike action. Following the Government's decision, the overwhelming majority of employees at GCHQ, specifically 98 per cent of the workforce, accepted the new conditions of service. Nearly all of the remainder transferred voluntarily to other government posts where they could retain their national union membership, or opted for voluntary redundancy with the generous compensation normally paid in cases of redundancy in the United Kingdom. By the end of 1988 only 13 workers remained who could accept neither the new conditions of service, nor jobs in other parts of the government service, and all of these received either full redundancy payments or generous ex gratia compensation.

Various aspects of the British industrial relations system must first be understood to put the Government's action in context. In the first place, the British system of industrial relations was based on voluntarism and the voluntary nature of this system was valued by unions, employers and Government. Secondly, historically, all collectively bargained agreements had been voluntarily entered into and were not legally binding. They were therefore not legally enforceable and there were no legal sanctions if they were broken. Within this framework of freedom and voluntary, non-binding collective agreements, both private and public sector workers were free to organise and to strike. There were only three exceptions to this general situation, all of which were within the public sector. Firstly, within the armed forces, who had neither the freedom to organise nor the freedom to strike. Secondly, within the police force, who had the freedom to organise but not to strike, and lastly, within very limited categories of the civil service, where the Employment Protection Act of 1975 and the Consolidation Act of 1978 contained sections which allowed the Government to exclude certain employees from the provisions of the Acts for the purposes of safeguarding national security. These provisions had only been applied to the Intelligence Services and formed the legal basis of the Government's action at GCHQ in 1984. Beyond this, all civil servants, regardless of rank or function, had the same freedom to organise and to strike as employees in private industry.

The Government representative stated that the Government's action at GCHQ was taken on a unique and exceptional basis, in such a way to specifically preserve both the voluntary framework of the industrial relations system and the freedom to organise and strike enjoyed by all other civil servants. He underlined that, within the voluntary system of industrial relations, a no-strike agreement entered into voluntarily could not be sufficient to provide an absolute guarantee of the uninterrupted operation of GCHQ which was vital to the national security of the United Kingdom and many of its allies. It was for this reason that he considered that holding out any prospect of negotiation of a strike-free agreement as a solution would only serve to raise expectations which could not be fulfilled within the system of industrial relations of the United Kingdom, for any agreement reached could, quite properly, be repudiated by the unions at any time.

Although the Government had made it a condition of service that employees at GCHQ should not belong to national trade unions, workers there had the freedom to organise in the Government Communication Staff Federation (GCSF), a workplace-based union. GCSF had a membership of over 50 per cent of employees at GCHQ, which was about the same percentage that the national unions once represented in the same establishment. Apart from strike action, GCSF operated like a normal union, representing its members at GCHQ in all relevant matters, including negotiations over pay and conditions and issues of working environment. It was entered on the statutory lists of trade unions maintained by the Certification Officer, a national, legally constituted independent entity. The Certification Officer had stated that GCSF operated "in much the same way as many other small trade unions". GCSF had applied to the Certification Officer for a Certificate of Independence and although this had not been granted, the union had appealed against the decision. Whatever the outcome of the appeal it could not in any way detract either from GCSF's formal standing as a listed trade union or from its handling of day to day business or its ability to represent its members. GCFS was not in practice disadvantaged by reason of not holding a certificate of independence, because the management of GCHQ extended to it facilities which were at least the equivalent of the benefits which a union holding a certificate of independence would enjoy under the law.

The Government representative recalled that if the case had been brought under Convention No. 151, it would have been dismissed at an early stage because the provisions of Article 1, paragraph 2, of that Convention allowed Governments to determine, by means of public law and regulations, the extent to which the protection provided for in the Convention applied to public service employees engaged in duties of a highly confidential nature. This was precisely what the Government had done in the case of GCHQ. Convention No. 87 itself excepted from its provisions the armed forces and it was the Government's contention that the kind of national security functions carried out at GCHQ were in the spirit of that exemption. The speaker further wished to draw the attention of the Committee to the fact that the European Commission of Human Rights had also examined this case and had found that, although there had been an interference by a public authority in the workers' rights to form and join trade unions, this interference was justified, since GCHQ was a special institution whose purpose resembled that of the police and armed forces in fulfilling vital functions concerned with the protection of national security.

By means of summary, the Government representative stated that, as a large number of people had recognised, both on this Committee and elsewhere, the issue at stake was a technical problem of labelling and interpretation and not a case involving fundamental questions of human rights. If there was a breach, therefore, it was of a highly technical and not a fundamental nature, for the following reasons: GCHQ was part of the national security and intelligence services; under Convention No. 151 there would have been no breach; in many other countries the same activities would be carried out entirely within the military apparatus and would therefore be exempt even under Convention No. 87; out of all the workers involved, only thirteen eventually did not accept the revised conditions or alternative employment and they were given generous financial compensation; other international bodies concerned with fundamental human rights had ruled in the United Kingdom Government's favour; and lastly, workers at GCHQ had, in fact, access to an effective and indeed very active workplace trade union organisation.

The Government representative welcomed that, in its most recent report, the Committee of Experts had recognised a number of these issues and his Government welcomed these positive outcomes of dialogue with the experts. It was recognised by the Committee of Experts that the workers at GCHQ were in the category of those for whom it was permissible to curtail the freedom to strike. The Committee had also acknowledged that the workplace union, to which over 50 per cent of these workers belonged, was treated by management as a full-fledged union and it had accepted that while the Government did not object to trade union membership per se among these workers, it did have continuing objections to membership of certain unions. The speaker stated that the Committee of Experts' assessment was correct, but that he had recalled why, within the voluntary framework of British industrial relations, this remained the case if the interests of national security were to be maintained at GCHQ. He nevertheless stated that his Government would continue to look very carefully at the experts' comments and at those of this Committee and gave an assurance that he would report fully the views expressed by the present Committee. He expressed the conviction that his Government would continue to listen to and carefully consider ideas on the matter, not least in deference to the importance which it fully understood was attached to the matter by the supervisory organs of the ILO including all members of this Committee. In conclusion, the Government representative trusted that on the basis of his explanations the Committee would be able to undertake a balanced, informed discussion of this case, maintaining a due sense of proportion about the issues involved.

The spokesman for the Workers' members expressed the agreement of his group that the discussion be restricted to the case of workers at GCHQ. However, that the other points mentioned in the report of the Committee of Experts, on which the Government had supplied a certain amount of information, should be discussed in 1992. This could perhaps therefore be mentioned in the conclusions of this Committee. In any event the Government should be requested to supply a report sufficiently in advance so that it might be discussed next year.

The Worker member of the United States recalled, on behalf of the Workers' members, that the Committee had decided in 1990, by a small majority, not to mention the application of Convention No. 87 by the United Kingdom in a special paragraph of its report. The Committee of Experts had concluded, however, that the dismissal of 13 workers from Government Communications Headquarters (GCHQ) at Cheltenham, on account of their refusal to step down from membership of unions of their choice, constituted a violation of Article 2 of the Convention. More importantly, in its conclusions, the Committee had note that "the Government states that it remains unconvinced that to do so would serve any useful purpose" and had "urged the Government to reconsider its position in relation to the reopening of discussions with the public service unions...". In the plenary session the speaker had indicated that the workers' attempts to have a special paragraph adopted came to nothing because the employers and certain governments had not fully appreciated what was really at stake, namely not to slam the door on new negotiation with the unions. In his opinion, this was, and continued to be, the core of the problem.

After underlining that he did not intend to ask for a special paragraph, he expressed his concern over the inflexible position of the British Government in refusing to discuss with the unions. This was a key question which, if not resolved, prevented any further action. As indicated by the Committee of Experts, the TUC had informed the Prime Minister that the unions were prepared to adopt a positive approach to the GCHQ question, providing the discussions were reopened as suggested by the Experts and by this Committee. The Prime Minister did not respond to this proposal and the Government continued to declare its conviction in the futility of such discussions. The refusal on behalf of the United Kingdom to resume discussions with the unions threatened the very principles to which this Committee had firmly and consistently adhered for years. It was the only case in 25 years, where a government had refused dialogue with its social partners, despite Conventions Nos. 87 and 144, which the United Kingdom had also ratified. The speaker none the less thought he had detected a certain note of encouragement in the intervention of the Government representative, notably in his assurance that his Government would continue to look very carefully at the observations of the Committee of Experts and of this Committee.

After many years of difficult dialogue, this Committee had stressed, in one common voice in its 1989 report, the crucial importance of the principles consistently followed by the Committee of Experts, not only for maintaining the independence of the supervisory system, but also the universality of standards and the necessity of applying them with objectivity and impartiality. It also unanimously adopted that faithful adhesion to these principles was equally important to the Conference Committee in pursuance of its work. From this, it necessarily followed that equality in application and impartiality must extend to all countries, regardless of size, power, geographical location or political persuasion: the same yardstick must be applied. It had been insisted on numerous occasions in this Committee, particularly during the years of struggle with the East Bloc countries, that the Committee could not project two faces, one for the East and another for the West. It therefore followed that neither could this Committee project one face for the developing countries and quite another to a highly industrialised Western State. Could such a drastic departure from the principles of impartiality and objectivity be tolerated, in a particular case, by a Committee where there has consistently been unanimous respect for these very principles? This Committee had always been known as the conscience of the ILO. If at times its conclusions had been demanding with regard to governments, equal justice was always dispensed. Departure, in an individual case, from the perception that standards were being applied impartially wherever breaches occurred would result, in the Workers' view, in a severe loss of credibility for the Committee.

Throughout his involvement in the discussions of this case, the speaker had always been puzzled and distressed by the inflexible attitude of the Government, where the possibility of further discussions with the social partners on the case of workers at GCHQ was concerned. According to the report of the Committee of Experts, this was the third time, despite its repeated entreaties and those of this Committee, that the Government had stated that it would serve no useful purpose to reopen the dialogue. The inexorable position of the Government raised serious concern within this Committee as to the Government's motives. The Government should know that for as long as free men gathered and engaged in dialogue anything could happen, as was testified by the progress achieved, through the efforts of the Experts and of this Committee over the years, when governments had encountered seemingly insurmountable problems of compliance with ratified Conventions. Even if, in the eyes of the Government, it would take a miracle to resolve the problems of workers at GCHQ with the assistance of the British trade unions, miracles did happen, like the incredible emergence, in the past three years, of the countries of Eastern and Central Europe to freedom and democracy. By means of conclusion he appealed to the Government not to spurn the latest offer of the British trade unions to resume discussions. Their offer to take a constructive and positive approach in the renewed negotiations clearly indicated that they were not insensitive to the importance of security operations at GCHQ. The contribution of an essential tripartite partner should in no instance be belittled.

The Workers' member of the United Kingdom, speaking on behalf of his group, indicated that he would not be asking for a special paragraph on this case to be included in the Committee's report because the Workers took the view that to do so would result in a sterile technical discussion on the special paragraph procedure rather a real dialogue on the case itself. He had listened with interest to the information supplied by the Government representative and recalled that the case before them essentially concerned the dismissal of a number of principled trade unionists for their refusal to give up the right, enshrined in Convention No. 87, to join a trade union of their own choice. He recalled that this particular case was considered by some to have been blown out of proportion, but he stressed that the principles underlying the case were central to the work of this Committee, and to the supervisory functions of the ILO. The continued refusal by a government to listen to and take actions over the comments made by the Committee of Experts, as well as the conclusions which this Committee adopts, was bound to be seen universally as an affront to the work of the present Committee. It was for this reason that this case was of particular interest. While it remained unresolved, and so long as there was failure to achieve a dialogue leading to progress, it undermined the entire supervisory system. Most fundamentally, it raised the serious question as to whether two standards were in operation in the work of the Committee, according to whether it was a less developed country, which did not have a sophisticated civil service, or a highly developed country whose resources and influence were such that it could attempt to evade the views of the Committee of Experts and the conclusions of the present Committee. There should be neither exceptions nor special treatment made in this Committee, for this would undermine its authority.

The Workers' member acknowledged that the application of Convention No. 87 posed problems. In particular it raised questions concerning pluralism, concerning the right to strike and where the right to strike could be legitimately refused. It also raised questions of who was and was not a civil servant, and over the fine definition of which particular categories of people should be allowed exemption under this Convention. The Workers' member stressed his deep and abiding respect for the law and particularly for those laws which were enshrined in human rights Conventions, but declared an implicit distrust in those who tried to argue that the law had many faces in different situations. Human rights were indivisible and the same laws should apply to all countries, whether developed, developing, rich or poor.

Contrarily to the explanation of the Government representative, the speaker declared that the disruptions which took place in the civil service between 1979 and 1981 concerned issues affecting both GCHQ and the civil service as a whole, since the Government had taken away pay bargaining machinery which had operated effectively in the civil service for 25 years. In response to the allegation that the country was put at risk by these token strikes, he recalled that the trade unions had ensured a skeleton staff had been in operation, as was generally currently the case over weekends. It was, therefore, nonsense to suggest that the country's security was at stake.

The Workers' member endorsed the outline of collective bargaining machinery given by the Government representative, but underlined that this framework had been steadily destroyed by the present Government. He insisted that on countless occasions the workers had made it clear that they were prepared to do something exceptional in the case of GCHQ. Having recognised the problem as presented by the Committee of Experts and in seeking to resolve this situation, the British trade union movement was prepared to talk about the unique solution of a no-strike agreement with arbitration which would be isolated for that particular unit to meet the views of the Committee of Experts that workers whose functions related to security matters could legitimately have their right to strike curtailed. This was the price the trade union movement was willing to pay in order to contribute to solving this problem.

With respect to the Government Communication Staff Federation (GCSF) operating at GCHQ, the speaker recalled that the Certification Officer had refused to issue a Certificate of Independence. GCSF was effectively a company union, and the fact that people were allowed to join a company union did not mean that they were being allowed to join a union of their own choice. It was this very freedom which was in question, as in the case of one-party states where only one trade union existed. With reference to the findings of the European Commission on Human Rights, the speaker declared that these did not in any way override the opinion of the Committee of Experts which could only be challenged by the International Court of Justice.

The work of the Committee was characterised by the spirit of dialogue. The United Kingdom had ratified Convention No. 144 on Tripartite Consultations relating to the activities of the ILO. Over the last 12 months, the British trade unions had tried to avoid this becoming a focus of conflict at this year's Conference. Last May, the Secretary-General of the TUC wrote to the Prime Minister to attempt to persuade him to reopen the discussions as requested by the public service trade unions and in keeping with the conclusions of the Committee of Experts. Unfortunately, no positive response was received. At this point all the trade unions were asking was to enter into dialogue with the British Government to explore whether a solution along the lines suggested by the Committee of Experts was possible. They were not asking for assurances; all they wanted was to be able to discuss. This request could not be considered unreasonable. For this reason the Worker member launched an appeal for the Committee to encourage the Government to take up dialogue with the trade unions. Refusal of such a simple demand would call into question the principle of dialogue which was at the very basis of the supervisory process. The Government's reply should be examined by the Committee of Experts and discussed by this Committee in 1992.

The Employers' members expressed agreement that the discussion be restricted to the single case of workers at GCHQ. Consequently, they considered that the conclusions should not mention that the other points would be examined next year by the Committee, as requested by the Worker members. This was the fifth time since 1985 that the workers at GCHQ were being discussed. The facts were clear and nothing new had emerged. The case was actually not typical of Convention No. 87, insofar as the activities carried out at GCHQ were very close to those of the armed forces. If the personnel of GCHQ had been transferred to the military sector everything would be resolved, however, this was not the case. The Government's actions were taken following strikes and working interruptions at GCHQ. The Government had demanded that the workers leave their union, which, with the exception of 13 workers, they did. Later discussions over the possible conclusion of a no-strike agreement had failed. Various misgiving, notably concerning the voluntary nature of collective agreements, also played a role in this. It remained to be seen whether the GCSF, with its membership of 50 per cent of employees, was a bona fide union. At any rate, the crucial point was that, for some time, workers at GCHQ has not had the possibility of forming or joining a union of their choice. From the legal point of view the situation was clear, as described by the Worker member of the United Kingdom. As in the past, the Employers' members firmly opposed the application of double standards. This case was, however, very different from those of the ex-Communist States, whose Constitutions prevented the forming of free unions outside of the established single party union. In the case of the workers at GCHQ the difficulties are of a practical nature and many of the factors relating to the case were specific to the United Kingdom. In the first instance, the Government and the trade unions did not have much mutual sympathy. Both tended to become entrenched in their positions so that a total absence of dialogue arose and this was the major problem. For this reason a new impetus was needed for both parties to resume contact and discuss the situation. This was a question of limited bearing which in no way threatened trade union rights throughout the United Kingdom. Only the workers at GCHQ were involved. Even if only 13 workers had wished to make use of their right to freely choose a union, it was the duty of this Committee to ensure that their freedom of choice was guaranteed. Workers must have the right to freely join the trade union of their choice regardless of the number of people involved. For this reason the Employers' members, like the Workers' members, expressed the wish that the Government would be persuaded to reopen dialogue. A guarantee, on behalf of the unions, that the activities of GCHQ would not be disturbed by working interruptions was also expected. The practical aspects of a resolution on this question must be decided by the parties involved in the United Kingdom and consequently the Employers' members did not have any precise suggestions on the matter. In conclusion, the Employers' members expressed the hope that the Government would renew its dialogue with the unions, that it would supply information to be examined by the Committee of Experts at its next session, and that, next year, this Committee could note substantial progress in this area, such as the renewal of dialogue if not a solution.

A Workers' member of Sweden, also speaking on behalf of the Workers' members from Denmark, Finland and Norway, stated that the freedom of choice in establishing and joining organisations, as provided for in Convention No. 87, was one of the foundations of freedom of association. The Committee of Experts, as well as this Committee had stated that GCHQ workers should not be denied the right to belong to organisations of their own choosing. ILO supervisory bodies had repeatedly urged the British Government to reopen discussions with the public service unions in order to arrive at a satisfactory resolution to the problem. The trade unions had indicated their willingness to enter into constructive discussions with the Government. The Government, however, had refused to accept the conclusions of the Committee of Experts and had even refused to meet with the unions. They regretted that the United Kingdom Government has neither accepted the views expressed by the Committee of Experts nor made use of the established procedure for obtaining a definitive interpretation of the Convention. Moreover, they were surprised that the Government had not chosen to renew discussions with the trade unions concerned. Regardless of the different political opinions of the parties concerned, the principle of discussions or negotiation with social parties was respected in most developed countries. This case could not be resolved through endless discussion in an international forum. The solution to this problem could only be found through discussions between the Government and the trade unions concerned. They expressed hope that this dialogue would be reopened and that this case could be listed among the cases of progress in next year's report of the Committee of Experts.

A Workers' member of Poland stated that the Committee was once again dealing with the problems of the application of Convention No. 87 by the United Kingdom. He expressed concern that most of the incompatibilities between the British legislation and the Convention, as identified by the Committee of Experts, still remained. Furthermore, he regretted the persistent and continuous nature of these incompatibilities. These issues had been discussed by the ILO's supervisory bodies for many years, but yet there had been no substantial improvement in the situation. He supported the appeal made by the Committee of Experts for a resumption of the dialogue between all social partners involved. This invitation to reopen the dialogue should also be extended to cover all the isues relevant to the tripartite relationship in the United Kingdom. The British Government should use the tripartite consultation mechanism available in the interest of a consensual social process to comply with the provisions of Convention No. 144 which had been ratified by the United Kingdom. The GCHQ case concerned the lack of will on the part of the Government to fully recognise the right of GCHQ workers to organise and to bargain collectively. However, the lack of clarity of British legislation as concerned trade union rights was also a problem. The Committee of Experts had also commented on the complexity of the employment legislation in the United Kingdom. According to the Experts, the variety of legislative texts involved created a serious obstacle to a proper interpretation as to the application of ILO standards by domestic law. According to the Committee of Experts' report, the Government had attached to its report a number of booklets on the legislation to demonstrate that the law was, in fact, relatively intelligible to those whom it most directly affected. In reality, however, even qualified lawyers could not interpret this complicated set of rules. In the judgements given by the Court of Appeals and the House of Lords, acting as the Supreme Court, in the case of Merkur Island Shipping Corp v. Laughton, the employment legislation then in force was criticised for its lack of clarity which was considered to be in violation of the general principle of the rule of law. Both courts found that, particularly in the field of industrial relations, the law should be expressed in terms that could be easily understood by those who had to apply it, even at the shop-floor level. Absence of clarity encouraged those who wished to undermine the rule of law. For these reasons, the speaker requested that the Government be urged to take a more consultative approach with the social partners in order to bring British law and practice into line with all freedom of association standards.

A Government member of the Netherlands indicated that his Government considered that the GCHQ case concerned more than merely a technical question, but also affected fundamental workers' rights. Two years ago, his Government had voted against the adoption of a special paragraph not because the case was not important, but rather out of respect for the supervisory system of the ILO and in the belief that certain sanctions should be reserved for extremely serious human rights violations. His Government still believed that this was an important issue and hoped that it would be resolved properly within the ILO supervisory system. He had understood from the Workers' members' statements that they would not ask for a special paragraph. He recommended that the United Kingdom Government be urged to carefully consider the discussion held in this Committee in a constructive spirit and in a spirit of consensus.

A Workers' member of Colombia stated that he had been following this discussion with great attention and could not accept that two separate positions be taken for the same case. Each case was unique and it was clear that the partial or total breach of a Convention was a matter with political consequences. Under no circumstances should the Committee accept that the violation of a Convention in an underdeveloped country, or a country which was economically submissive, was a serious crime, while the violation of a Convention in an economically developed country be considered as merely a technical difficulty. It would be very dangerous to engage in such a discrimination which could cause the Committee to lose its credibility.

The Workers' member of Sri Lanka stated that the United Kingdom is renowned as the citadel of democracy. As the founder and Head of the Commonwealth it is regarded as a model for emulation by members of the Commonwealth and their peoples. Sri Lanka, as also other Commonwealth nations, has been inspired and influenced by British democratic traditions and practices and has fashioned its own institutions and practices on the British model. It is, therefore, regretted that the denial of the freedom of association to workers in the United Kingdom has not helped to sustain this image. The United Kingdom had ratified one of the most important ILO Conventions and was now flagrantly violating one of its principles: the fundamental right for workers to choose their own organisations freely. The Government representative of the United Kingdom did not even seem willing to enter into a dialogue with the social partners to resolve this question. The Government's argument that the GCHQ was a sensitive establishment and that, therefore, strikes would be detrimental to its proper functioning appeared to be invalid as the unions were prepared to discuss the possibility of a "no-strike agreement". He concluded by requesting the Government to enter into meaningful dialogue with the trade unions, without any preconditions, but with the simple aim to resolve this situation.

The Government member of Australia applauded the constructive basis on which the contributions from the Workers, Employers and Governments had been made. He noted that the GCHQ case clearly reflected special circumstances of a complex and sensitive nature. The case touched upon security interests of the British Government but also raised important issues concerning the rights of workers to organise and associate freely. His Government considered, as it stated in this Committee in 1989, that the circumstances in the GCHQ case might constitute a breach of Convention No. 87 and it supported the conclusions and proposals of the Committee of Experts aimed at securing a resolution of the case. This case was first considered by the Experts in 1985 and there has been no real progress since that time. He expressed his Government's regret that the United Kingdom Government had not taken any specific action to address the issues raised by the Committee of Experts. He hoped that he had been correct in detecting a preparedness on the part of the Government to take a more constructive approach in the future. Nevertheless, the current approach was, to say the least, extremely disappointing and could only serve to undermine the effectiveness of the ILO's supervisory machinery. The Committee of Experts had reiterated their view in this case that the right to strike might be curtailed where the workers concerned carried out functions which related to security matters, but added that these workers should not be denied the right to belong to the organisation of their own choosing. These comments provided a framework within which this case could be resolved. It would be necessary, however, for the United Kingdom Government to consult with the Trades Union Congress and relevant trade unions to review the status of GCHQ workers. Six years had passed since the Government had held formal discussions with the unions concerning this issue. According to the Committee of Experts, the Trades Union Congress and relevant trade unions had indicated that they were prepared to negotiate constructively with the Government about the GCHQ situation, thereby offering a real prospect that the various issues in this case could finally be resolved. He suggested that the Government be urged to take positive steps to secure a settlement in this case which would be consistent with the provisions of Convention No. 87 and which would reflect the conclusions of the Committee of Experts.

A Workers' member of the Netherlands regretted the unwillingness of the Government to enter into dialogue with the trade unions and associated himself with the previous speakers on this point. He further noted that the GCHQ workers were allowed to join the Government Communications Staff Federation (GCSF) which, in the Government's opinion, could not necessarily be considered not to be a trade union. The Government thus apparently maintained that the GCHQ workers did have the right to organise. At the same time, the Government referred to Article 9 of the Convention concerning the "armed forces" exception. They agreed with the Committee of Experts' conclusions that the government did not seem to object to trade union membership per se for the GCHQ workers, but rather that it had continuing objections to membership of certain unions. He expressed deep concern that, if the Committee accepted the present deadlock, this would be viewed as an invitation to other governments to adopt the United Kingdom government's attitude. With reference to the Employers' members' statement concerning double standards, he recalled that the debate on double standards concerned the position of the Eastern European countries and several developing countries and that each country should be judged according to its economic, cultural, social and political particularities. This case concerned basic principles and was not merely a technical matter. The Government had not accepted the conclusions either of the Committee of Experts or of this Committee. This was the type of case which was addressed in paragraph 12 of the Committee of Experts' report. The only honourable approach in a case of such importance, where there is a difference of opinion, would be for the government to go to the International Court of Justice for a final opinion. The Government's statement that conclusions reached in another international forum which had accepted the Government's position seemed to be all the more reason for requesting the International Court of Justice for a final determination. He concluded by recommending that the Government be urged to resume the dialogue with the trade unions.

A Workers' member of Tunisia recalled that democracy, well known in the United Kingdom, was also defined by cooperation, consultation and dialogue. The Government had, however, refused to enter into dialogue with the trade unions, while maintaining its decision to arbitrarily dismiss 13 GCHQ workers. He did not understand, therefore, how the Government could preach and defend the principles of liberty, democracy and social justice to the developing countries, and moreover, how it could defend the principles of the ILO to which it was supposedly attached. The speaker concluded by supporting those speakers who had requested that this case be mentioned in a special paragraph.

The Government member of Norway, also speaking on behalf of all five Nordic Governments, stated that, while recognising the technical issues involved, this case concerning the right to organise in unions freely chosen was fundamentally a human rights case. The speaker indicated that in her country had a strong tradition in respect of the right to organise which included military personnel and police. The right to industrial action in her country was, however, restricted in respect of military personnel and police. This type of distinction could perhaps also be made in the United Kingdom. She regretted that there had been no discussions between the United Kingdom Government and the trade unions since 1989 and urged the Government to take the initiative to establish contacts as soon as practically possible in order to make progress in resolving this conflict. She indicated her comprehension for the problem of double standards in this case, but expressed the hope that this case could be resolved with a consensus conclusion. She urged the Government to seriously consider the discussions held in this Committee and the conclusions which would be drawn with a view towards finding a constructive solution to a problem which had taken up too much time of the Committee for too many years.

A Workers' member of Spain pointed out that this was a very important moment in the work of the Committee. The Committee of Experts had noted that the workers concerned could not be considered to be "armed forces". From this affirmation, it would be impossible to deny them the right to associate, but the Government required that they associate to one specific trade union, which was not necessarily the one chosen by the workers. It was necessary to ask why the Government had chosen a trade union which could be different from one chosen by the workers. There must be other reasons which were not purely formal in this case where formality was a way of hiding the real issue. It seemed more and more clear that the reason for which these workers could only associate with the GCSF was because it was not an independent trade union organisation and it did not call strikes. Calling strikes was the initial cause of this problem. This case was also important as it dealt with the United Kingdom, a developed country and member of the European Economic Community (EEC). At the beginning of the meeting of this Committee, all the delegates praised the Committee's objectivity, but this objectivity was brought into question when the Committee was dealing with the case of a developed country. This could have the effect of raising doubts so to the functioning of the supervisory machinery.

A Government member of Panama noted that there were two important aspects in this case: a technical aspect and a fundamental aspect concerning the violation of Convention No. 87 by the United Kingdom. He was concerned that the Workers' and Employers' members of the United Kingdom had insisted on not mentioning this case in a special paragraph, despite the fact that the Government had made no progress in the last six years and that in 1989 there had been a vote for a special paragraph. The speaker called the Committee's attention to the fact that Panama, a small country in the middle of a democratic transition which had made enormous efforts to provide reports on of economic sanctions and an interactions, ratified Conventions in order to satisfy the requests of this Committee, but was subjected to a special paragraph for mereby observing that the Committee of Experts had tried to impose terms which were not clearly defined in the Convention and to impose its interpretation of Conventions and for not having followed certain rules concerning freedom of association. The speaker pointed out that the United Kingdom, one of the founding countries of the ILO and a highly developed country should resolve the situation as soon as possible by means of constructive dialogue and should not adopt an intransigent attitude in this regard. He reiterated that there were incongruencies in the procedure followed by this Committee in this case because there had been no progress since there had been a request for a special paragraph in 1988.

A Workers' member of Venezuela stated that in previous discussions on other cases before the Committee, a very precise attitude was adopted concerning countries which were in violation of various international labour standards. He asked whether this Committee would support the Committee of Experts which had studied this case since 1985. The Experts were concerned about the right of certain workers to join trade unions. He also asked whether the question of a special paragraph was only valid for the African, Latin American or Asian countries. If this was the case was if fair to have such different approaches? The speaker pointed out that this case had been discussed since 1985 with regard to 13 workers who had been dismissed, and also with regard to the negative attitude of the Government to resume a dialogue and to arrive at an agreement on the issue. In this Committee, the Government representative of the United Kingdom had closed the doors on dialogue. He trusted that the Government would arrive at an agreement and, if no agreement was arrived at, it could be considered that this Committee took a different attitude to the founding, industrialised countries than other countries. He pointed out that the same measures should be applied to all countries and a consistent line of conduct should be maintained. He indicated his solidarity with the United Kingdom workers and their right to freedom of association and the right to strike.

The Workers' member of Uganda stated that the Government's argument that a trade union in the GCHQ would threaten the security of the country was ill-founded because, to the contrary, the security of any country depended upon the respect of the fundamental human rights of all citizens. Furthermore, it was not trade unions which caused conflicts, but rather the violation of rights. They stated that there would never have been a problem if the Government had been discussing the issues in question with the trade unions in its country and recommended, therefore, that the Government reconsider its position and enter into dialogue with the social partners concerned.

A Government representative of the United Arab Emirates, also speaking on behalf of Bahrain, Saudi Arabia, Kuwait and Qatar, noted that this case dated back to 1985. He also noted the specific circumstances of the status of GCHQ workers, as well as the apprehensions and doubts expressed by the United Kingdom Government that some trade unions might not be committed to an agreement which included a provision not to have a right to strike. It seemed that, for this reason, the Government was not in a position to pursue negotiations for fear that some conflicts might arise in the future. The Government had clearly confirmed that the GCHQ workers had the right to join the GCSF and that 50 per cent of the workers had already done so. In spite of the problems referred to by the trade unions in this respect, the Government indicated that the trade union has powers at least equivalent to other trade unions. The two parties should be able to overcome and correct these difficulties. The Committee of Experts clearly referred to the fact that workers engaged in work involving national security may be refused the right to strike but they should have the right to organise in a trade union of their own choosing. This should allow them to find on a formula whereby these workers would accept the restrictions on the right to strike while being permitted to join the trade union of their own choice, in conformity with the provisions of the Convention. Therefore, in the same context as the statements made by the Government members of the Netherlands and of Australia, and taking into account that the Committee of Experts had indicated that the Government was not opposed to this position, the speaker noted that there was room for negotiation to arrive at an agreement ensuring the interest of both parties. He expressed the hope, therefore, that an agreement resolving this case would be reached. He also hoped, as was stressed by the Government representative of the United Kingdom, that the dialogue with the Committee of Experts and with this Committee would, in the light of the comments made by the Workers' and Employers' members in this Committee, continue. The speaker noted with pleasure that this case would not be sanctioned with a special paragraph, but rather that this question would be resolved by dialogue.

A Workers' member of Pakistan indicated the value which he placed upon the tradition of democracy in the United Kingdom, but pointed out that the Committee had always maintained universal criteria in the application of standards, in particular the standards concerning freedom of association. There could not be a difference in the application of these standards between developing countries and developed countries. The ILO supervisory machinery and its observations must be respected by everyone. He pointed out that for the last 50 years public servants in the United Kingdom have had the right to join the organisation of their choosing and have had the right to bargain collectively for the last 25 years. This case dealt with the issue of certain public servants who had to join an organisation which was not necessarily of their choosing, which was not in conformity with Article 2 of the Convention. He noted the Committee of Experts' comment concerning the complexity of the British labour legislation, in particular the Employment Act of 1990, which appeared to narrow the scope of protection in respect of freedom of association which the Committee had already determined to be inadequate. Furthermore, the Experts had considered that the GCHQ workers could not be considered as workers in the "armed forces" under Article 9 of the Convention and they therefore had the right to organise freely. The Experts had expressed concern that this case had not progressed in recent years despite the positive attitude demonstrated by the TUC to continue the dialogue. The speaker recalled that the United Kingdom was one of the founding members of the ILO, a country of industrial importance, and a member of the Governing Body and should set an example and bring its law and practice into conformity with the Convention. Finally, he highlighted that various Governments, the Workers' members, the Employers' members and various experts in international law who had urged the Government to resume the dialogue. He called for the Government to open a constructive dialogue.

The Workers' member of Germany referred to the Government representative's statement concerning the uniqueness of the common-law system and the system of industrial relations in his country and recalled that in the past this Committee had witnessed several similar controversial discussions where government representatives had defended their position on the basis of the uniqueness of their situation in one way or another. Nevertheless, the United Kingdom was responsible for bringing its law and practice into conformity with the Convention. If the Government could not ensure conformity, then its only option would be to request a ruling in the International Court of Justice.

The Government member of the United States stated that in past discussions on this case the Committee had disagreed on the ways of resolving it and this had resulted in a loss of the moral power behind the Committee's conclusions. She noted the special nature of the case and the unique and compelling concerns of national security which required that GCHQ operate at all times. However, she stressed that no problem can be solved without talking. She noted that dialogue does not presuppose achieving agreement, as the Committee of Experts had acknowledged in asking the Government to reopen discussions with a view to determining whether it might be possible to arrive at satisfactory arrangements. Dialogue was not a one-way street, nor did it necessarily mean a rapid solution. Nevertheless, she stressed, the undertaking was worth the effort. The strength and the moral authority of this Committee were derived from the fact that it operated on the basis of dialogue and consensus. She noted the commitment of all members of this Committee to ensuring that the effectiveness of the ILO supervisory machinery was not diluted. She hoped, and indeed was encouraged, that a consensus solution could be achieved in the GCHQ case.

The Employers' members noted that after the lengthy and substantive debate on this case there was much agreement in the present Committee on a decisive point: the dialogue between the Government and trade union should be resumed. The fact that there were no differences of opinion showed that this debate was significantly different from other debates held on the same case in the past. They asked the Government representative to submit this message to his Government and hoped that they would see results later on. Noting that a number of speakers went into detail on the other questions concerning the United Kingdom's application of the Convention, which were not under discussion at present, the Employers' members wished to point out that they had their own position and reserved the right to express that position at the proper point in time; indeed, on several issues they held quite different views to those expressed by the Experts, and not only on the question of the right to strike.

The Workers' members welcomed the content and the form of today's discussion. It appeared clearly that the GCHQ question was not only a technical problem, but was a case of principle: the freedom of workers to organise in a trade union organisation of their own choice. The Workers' members had already explained why they would not request a special paragraph this year. There were no double standards being applied; their position was rather to apply maximum pressure to arrive at genuine consensus on the most urgent problem, namely, the lack of dialogue and the need to resolve this and to search for a solution together with the trade unions. The Workers' members had achieved large and unanimous support on this point, and they thanked all the speakers, especially the Government members, If the Workers had requested a special paragraph as had been the case in 1989, the discussion might have been quite different, both on the nature of the problem and the meaning of special paragraphs. In a constructive spirit, as had been shown by the TUC, the Workers' members had wanted to stress the movement that had to be made towards reopening dialogue, in particular because the Government had ratified Conventions Nos. 87 and 144. They noted the statement of the Government representative that his Government was willing to examine the Committee of Experts' views and those expressed by the present Committee, in particular on the need to resume dialogue. This Committee therefore should formulate strong conclusions, expressing regret and formally calling for the Government to reconsider its position and to re-establish shortly dialogue between itself and the trade unions. The Workers hoped that within some months it would be possible to note genuine and substantial progress.

The Government representative had listened with great interest to this discussion and to the points raised by Governments and by Employers' and Workers' members. In reply to a number of speakers who had suggested that the crux of whether this case was a fundamental or technical one rested on the issue of the workers' right to join a union of their choice, he believed that it was a technical issue precisely because the relevant ILO Conventions allowed exclusions from this right for certain categories of workers. He was happy, however, to hear many speakers emphasise that this case was not related to any problem in the general procedures for freedom of association in his country, particularly in the public sector, and that no doubts existed about the general right to organise and to strike in the British civil service. Referring to the Workers' comment that GCHQ unions, by going on strike in the early 1980s, had not been putting the country "at risk", he explained that, he had not meant to imply this, but had rather meant that in the increasingly technologically sophisticated world of intelligence, his Government had felt that any "risk" of disruption of a central intelligence agency was unacceptable. Also in reply to Workers' speakers who had argued that the present Committee's censure should be spread evenly across countries and not confined to developing countries only, he agreed that the essence of ILO standards was their universality; but surely that did not mean that there should be censure by a system of regional rotation. What was meant was rather that this Committee should reserve its strongest censure for the worse cases of abuse, wherever they occurred. He stressed that the breach of the Convention - if there was any - was of a purely technical kind; no one had been murdered, tortured, raped or jailed without trial and there was no general limitation on the freedom to organise or strike in the public sector. The constraints on these freedoms were limited to intelligence workers who, in most other countries, were defined in such a way as to be exempted from the Convention. To suggest that there was any parallel between this and such other cases was precisely to adopt double standards and undermine universality. On earlier statements pointing to an apparent lack of dialogue between the Government and the unions. He explained that, his Government had, in fact, held repeated negotiations with the national unions when it first took the decision to change the terms and conditions of employees at GCHQ. At that time, national unions had urged that a no-disruption agreement would provide adequate safeguards. However, their proposals had been of a limited nature, leaving large areas to be determined through subsequent negotiations, with later disagreement of unions about the offer. His Government recognised that the unions had indicated on several occasions (including recent letters mentioned by the Workers' members) that they would change their position on the question of a no-strike agreement. Given the sensitivity of this issue in the domestic context, given the strongly felt opinions on both sides and the overriding need to ensure the smooth operations of GCHQ, his Government had been unwilling to make any purely cosmetic gesture which would run the resk of being over-interpreted or raise expectation which could not be fulfilled. He stressed, nevertheless, that the Government would be made fully aware of all the points raised in the present Committee and would have due regard to them in its reply to the above-mentioned letters, which he was sure would be made in due course following the simple acknowledgement of receipt which had already been sent. His Government would also continue to look very carefully at the comment of the Committee of Experts.

The Committee noted the written information supplied by the Government, as well as the oral statement made by the Government representative concerning the situation at GCHQ, and the discussion which had taken place in the Committee. The Committee expressed its deep concern at the lack of dialogue between the Government and the trade unions and at the lack of progress since it last examined the questions raised under this Convention in relation to the workers at GCHQ, who continued to be unable to join the trade union of their choice. It regretted to be obliged, once again, to ask the Government to reconsider in the shortest possible time its position by resuming dialogue with the trade unions with a view to finding a solution to the situation of the workers in question, in full conformity with the Convention. The Committee also expressed the firm hope that the Committee of Experts would be in a position to observe as from next year, on the basis of a new report from the Government, real and substantive progress in bringing the practice into conformity with the requirements of the Convention ratified many years ago.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative recalled that, as a founding member of the ILO, his country continues to support its aims, objectives and activities. He then pointed out that public service workers in his country have broader freedoms to organise, bargain and strike than public servants in most other countries, and indeed are treated no differently from workers in other sectors of the economy. By contrast, in other cases considered by the present Committee, public servants had been entirely or partly barred from the right of association.

The Government appreciated the work done by the Committee of Experts, which had a difficult and complex task in looking at the application of conventions and interpreting them in the light of national laws and in the context of the diverse socio-economic factors and institutional structures in each country. The Committee of Experts was a distinguished authority in law whose opinions were respected. But in complex areas there were often divergent views, even among experts and within rational and democratic organisations - of which the ILO must surely rank as a leading example - it should be possible to say: yes, we understand why you came to these conclusions, but we think it is possible to make a different interpretation.

The Government's actions in respect of the General Communications Headquarters of Cheltenham (GCHQ) were taken solely in the interests of protecting national security. Although the GCHQ was not part of the Foreign and Commonwealth Office, it was in fact one of the security and intelligence services and formed and integral part of the United Kingdom's organisation for defence and national security. It provided vital indispensable operational support to the armed forces of the United Kingdom and its allies, including a continuing watch for any form of armed hostile activity. The speaker conveyed his Government's disappointment with the Committee of Experts' rejection of the argument that the workforce at GCHQ might fall within the scope of the "armed forces exemption" in Article 9 of the Convention. The functions of GCHQ were very closely connected with those of the armed forces and the Government found it hard to believe that GCHQ would not fall within the spirit of the exemption. Consequently, this was very much the kind of borderline case which Convention No. 151 was designed to clarify. GCHQ should operate continuously if national security needs were to be met and there had been severe disruption there through industrial action, with 10,000 work-days lost between 1979 and 1981. The Government's actions had been taken in the firm belief that it was unacceptable to have a top secret intelligence establishment vulnerable to national strike action.

In framing its Conventions, the ILO had taken account of the special issues which in matters of national defence and security; Convention No. 151 contained a specific exclusion clause for those involved in work of a highly secret or confidential nature. In formulating its action on GCHQ the Government took the view that it remained within the letter and spirit of these instruments. Convention No. 87 could and should be examined in conjunction with Conventions Nos. 98 and 151. It appeared to the Government that because of earlier disputes about the application of Convention No. 87 to the public service, an instrument dealing specifically with this area - Convention No. 151 - had been adopted and this new Convention took precedence over the generality of Convention No. 87. The Government's interpretation of the preamble of Convention No. 151 was that it had been adopted with the two earlier Conventions in mind. Conventions Nos. 87 and 151 were interwoven with each other to such an extent that the power in Article 1(2) of the latter Convention to disapply the guarantees provided by that Convention would be of no utility or practical effect unless it was intended to have the effect of disapplying also the associated provisions of the earlier Convention. This meant it was for governments to determine - by means of national law and regulations - the extent to which the protections provided for in the Convention applied to public service workers engaged in highly confidential work: this was precisely what the Government had done.

The speaker noted that the Committee of Experts stated in its observation that the supervisory bodies of the ILO have consistently disagreed with the Government's view. The speaker indicated, however, that the same Committee previously acknowledged (in its report to the 1985 Conference) that the interpretation of the Conventions adopted earlier by the Committee on Freedom of Association was not the only sustainable one and was not necessarily definitive. The Committee of Experts was on record as recognising the difficulties inherent in interpreting the interrelation of these Conventions. In addition, the Court of Appeal in the United Kingdom specifically considered this issue, concluding that the Conventions should be read together and that Article 1(2) of Convention No. 151 took precedence over Convention No. 87. Therefore, the Government did not believe that its actions at GCHQ represented a breach of Convention No. 87.

The Government noted the Committee of Experts' expression of regret that 13 employees at GCHQ have been dismissed because of their refusal to give up membership in the union of their choice. The Government also deeply regretted the necessity of that action, which was not taken lightly. The speaker then set these dismissals in the context of developments at GCHQ, every opportunity was extended to the small group of staff who retained their membership in a national trade union to accept the terms and conditions of employment that were introduced on that date or, where practicable, to transfer to other employment in the Civil Service. The overwhelming majority of staff at GCHQ (98 per cent) accepted the new conditions of service. Nearly all the remainder either transferred voluntarily to suitable posts elsewhere in the Civil Service where they could retain their union membership, or opted for voluntary departure with the generous compensation normally paid in cases of redundancy. On 15 July 1988, the Government wrote to the remaining 18 employees who had either failed to leave their national trade union, or had rejoined trade unions after initially accepting the new terms of service, formally enquiring whether they were still members of a national trade union and reminding them that, if they were members, they were in breach of their conditions of service. On 29 September 1988, the Government announced that it proposed to transfer the few remaining trade unionists for whom alternative posts could be found; to terminate with compensation the employment of the so-called "non-optants" - those who had refused either to leave their union or to be transferred - for whom there was no realistic chance of finding alternative posts; and to institute further disciplinary proceedings against the "rejoiners" - those who had initially accepted the new conditions of employment but subsequently resumed their union membership - if they did not agree to leave GCHQ voluntarily with compensation. The possibility was, of course, at this stage, still open to those concerned to accept the conditions of employment at GCHQ and to remain there, and the government very much hoped that they would do so. By the end of October 1988, 17 trade union members remained at GCHQ. Of these, ten were "non-optants" and seven were "rejoiners". Of these 17, three were transferred to alternative jobs within the Civil Service, one rejoiner accepted premature retirement; and the remaining 13 were dismissed. Of the 13 who were dismissed, the seven non-optants received generous compensation and the six rejoiners received, ex gratia, six months' salary in lieu of notice. There are now no members of national trade unions at GCHQ, but there is a staff association which enjoys many of the rights of collective organisation except the right to strike. Over half of the employees at GCHQ are members.

The Government noted the Committee of Experts' view that it should undertake renewed negotiations with the relevant national trade unions. In fact, discussions were held with the national trade unions following the Government's announcement of 25 January 1984, and in those discussions the unions urged that a "no disruption agreement" would provide adequate safeguards. These proposals, which were of a limited nature, leaving the determination of the areas to be covered by the agreement for later negotiation, were very carefully considered by the government but had to be rejected, as they did not provide sufficient guarantee that conflicting pressures would not produce difficulties in the future. Support for this conclusion was taken from the fact that the draft "no disruption agreement", which had been tabled by the Council of Civil Service Unions, was subsequently repudiated by two of the main trade unions concerned at their 1984 annual conferences. the unions formally rejected any negotiations directed towards the possibility of concluding a no-strike agreement at GCHQ. The Government recognised that the trade unions subsequently indicated that they might change their position on this point, but this possibility itself supported the Government's position. It was essential in the national interest to ensure the uninterrupted future operation of GCHQ and, clearly, this could not be guaranteed if agreements entered into by the unions representing the workers concerned could be repudiated at any time in the future as a result of a change in position of the unions concerned. The Government was also aware that very few trade unions in the United Kingdom had been prepared to enter into no-strike agreements and that a union which would voluntarily sign such an agreement, to ensure arbitration rather than strikes as the end result of any dispute, could find itself in severe difficulties with the rest of the trade union movement. Thus, for example, the Electrical, Electronic, Telecommunication and Plumbing Union (EETPU) was expelled from the Trades Union Congress (TUC) in September 1988 after entering into single-union no-strike agreements with two private companies. The Government therefore considered that in the specific context of GCHQ, and the national defence interests it served, further negotiations with the relevant trade unions could not possibly serve any useful purpose.

While, in the Government's view, the traditions and culture of British trade unions would make it impossible to revert back to representation by national unions at this particular defence establishment, the Government's action, was limited to GCHQ within the organisational control of the armed services; If the workers at GCHQ, undertaking the same tasks within the same establishment, had been reclassified in this way then no issue would arise under the convention: it would have been an apparently easy solution. However, it would not have been a solution which, in the Government's view, was possible, either in principle or in practice. At the level of principle, the people working at GCHQ were civil servants with contracts of employment as civil servants; it would have been a breach of those contracts and of the basic rights of these workers to reclassify them; these workers certainly would have strongly and rightly objected to such an action. It followed, therefore, that if such change was to take place, it would have to be done over a very long period of time. However, the people working at GCHQ had very specific and very rare skills and the practical problems of implementing such a change were considered to be insurmountable. the government, therefore, took the view that for reasons of principle and for reasons of practice such a change was not possible.

In conclusion, the Government maintained that its action on GCHQ was not an attack on freedom of association or on trade unionism, but was taken solely in the interests of securing its national defence. Over the period since 1984 when it announced the action, the Government had made every effort to accommodate the small minority of workers who were not able to accept the new conditions of service. The outcome was not perfect, but in the context, might be seen as one which was both reasonable and practicable, and which left the United Kingdom well within the spirit, and indeed the letter, of ILO Conventions. If Conventions were to be effective, interpretation must not be too narrow; it must be appropriate, responsible and realistic.

The Worker member of the United Kingdom stated that this was a serious case, because a very deep principle was at stake. He had hoped for a sign of progress, or at least a gesture of conciliation, but it appeared that the Government had never moved from its position and had consistently repeated the same arguments on the many occasions this case was before the present Committee or the Committee on Freedom of Association.

He had listened to the arguments advanced although they were not new. Firstly, regarding the Government's statement that civil servants generally in the United Kingdom enjoyed broader freedom to organise and to bargain than those of most countries, the speaker replied that the rights provided for civil servants generally in the United Kingdom were those laid in Conventions which the Government had adopted: no more, no less. If the Government was better than other countries it was because those countries infringed the appropriate Conventions, particularly the freedom to associate. By denying the GCHQ workers that freedom, the Government was placing itself in the same position as those countries.

Secondly, as regards the inter-relation of Conventions Nos. 87, 98 and 151, the Committee of Experts had already answered the Government's argument. Convention No. 151 does not overrule the important articles of Convention 87. Each time the Government had used this argument the Committee of Experts had rejected it.

Thirdly, the argument that GCHQ workers should be treated in the same way as members of police and armed forces because of the nature of their work, the speaker - while conceding the very special nature of their work - stressed that the Committee of Experts rejected that argument; indeed with very good cause: all these workers had been members of national trade unions for 30 to 40 years; they were then as they are now - civil servants. The Government representative had pointed out himself that it would not be possible for them to be conscripted into the armed forces; they were not members of the armed forces and could not be treated as such.

Fourthly, as regards the argument that the civil service trade unions would not accept a no-strike deal because when this was suggested at one stage it was rejected by two trade unions at their subsequent conference, the speaker pointed out that there was a great difference between seeking a conference's views on a hypothetical case and an actual offer of a binding agreement; the latter had never been put to the trade unions' conferences because no offer of any kind had ever been made by the Government to the unions concerned. Indeed, only a month or two ago, there were discussions with the civil service trade unions which said they would be prepared to negotiate a watertight deal which provided positive assurances of no interruption to the work of the GCHQ. The Government should therefore do what the Committee of Experts had asked them to do - that is to negotiate a no-strike deal; if the British trade union movement refused to negotiate or refused to reach agreement the Government would then have a case that it could confidently present to this Committee. The Government was not asked anything unusual but only to negotiate.

Fifthly, as regards the argument about how generous the Government was in its compensation to dismissed or compulsory transferred GCHQ workers, no price could compensate for a denial of freedom to associate and the right to organise. The Government had already shown its so-called generosity when it bribed GCHQ staff with L1,000 each if they left their unions. The principles laid down in Convention No. 87 were not for sale and could not be bought at any price.

Sixthly, concerning the argument about 10,000 workdays lost, the speaker emphasised that this was not 10,000 of workdays lost to GCHQ. He could not reveal how many staff worked at GCHQ for that was secret information which he was not prepared to reveal, but many thousands of hours were lost each week when a large proportion of the staff went home at the weekend. That put the Government claim into its true perspective. However, the important issue here could take the form of this interesting question... since the strikes took place in 1979 and 1981 and it was 1984 before the Government actually took some measures, was it really a matter of such great urgency as far as the national security was concerned, if it took so much time?

Finally, as regarded the argument based on the judgements handed down by the British and European courts, the speaker conceded that the Government may have won on technicalities but, in this context, only one court was entitled to interpret Conventions under the Constitution of the ILO: the International Court of Justice. The Government representative seemed to argue somewhat perversely that because the possibility existed of having the Committee of Experts challenged in court then ambiguity must therefore exist. The United Kingdom Government was challenging the views of the Committee of Experts. They were creating the ambiguity. The answer to that was that the Committee of Experts had invited the Government, if it wanted to challenge its interpretation, to do so before the International Court of Justice. The Government had not done so and would not do it because, in the speaker's opinion, they already had legal advice as to what the answer might be.

It appeared that the Committee of Experts, in its appeal to the Government, put its final conclusions in about the strongest terms it could use: what the Committee of Experts wanted in fact was negotiations. The present Committee could not come back every year discussing the same thing and was entitled to have the answer to one simple question: will the Government enter into negotiations with the trade unions as the Committee of Experts has recommended, or will it not? This could be answered by a simple yes or no. This Committee should let the Government answer that question and make its judgement.

The Workers' members emphasised that all the relevant information on this case had already been given by the present Committee in its reports of 1987 and 1988, by the Committee on Freedom of Association, by the Committee of Experts - all of which had decided this issue - and, finally, by the Government representative in his present statement. Consequently, there was nothing to add on substance. Although it was decided by common agreement to limit the discussion to the first part of the observations made by the Committee of Experts on the GCHQ, the Worker members noted with concern in the light of the observations of the Committee of Experts and of the discussions which took place these last years, that this was not an isolated case but actually a situation, among many others, where unjustified measures had been taken against unions with the effect that their action, and in particular collective bargaining, was hindered. They wished to emphasise that the arguments raised by the Government representative contradicted both the observations of the Committee of Experts and the Committee on Freedom of Association. The Government is ignoring the Committee of Experts' observation that the measures taken against the GCHQ workers form part of a systematic restructuring of the labour relations legislation. They emphasised that this case concerned both Convention No. 151 and Convention No. 87, and raised the issue of public servants' freedom of association and collective bargaining. Convention No. 151 is meant to clarify and add to Convention No. 87, and not to replace it. The public servants' freedom of association and of collective bargaining still raises serious difficulties in this country.

Concerning the alleged necessity of the measures to be taken with respect to the GCHQ, they expressed their surprise, as did the Worker member of the United Kingdom, that the Government had waited until after 1984 to deal with events which occurred in 1979 and 1981. It was disturbing that the Government took such drastic measures as dismissals, since the ILO supervisory bodies had begun the examination of this case.

The Government had not used the possibility of recourse to the International Court of Justice, and refused to negotiate and to take into account the comments of the ILO supervisory bodies. It is worrying that a sort of internal association of GCHQ employees could be established, while the existence of a normal union was challenged. Should one conclude that this type of association is less dangerous than a traditional union for national security? Do public servants lose their patriotism when they organise?

The Workers' members noted with regret that the Government maintained its position and refused to negotiate; therefore, this is a very serious case. They hoped that this case had not reached the point of no return.

The Employers' members recalled that this case had already been examined by the present Committee twice - the first time in 1985 - and that the Government and the Worker members were still at odds. The Employers' members stated that they had no intention to act as arbiters. This case concerned a communications centre where employees have functions comparable to those of military personnel and the Government was not prepared to accept strikes which could have serious repercussions; this position seemed justified. The discussions and negotiations did not produce results and 17 employees refused to cancel membership in their union, as proposed by the Government; 13 of these 17 employees have been transferred or dismissed. This was a very special case which would not affect the United Kingdom economy, wholly or partly. This was a very specific case which would not happen again in other circumstances since its complexity was also due to the difficult distinction between public servants and military personnel, a difficulty which has legal repercussions.

In 1985, when the Committee of Experts first studied this case, it noted in its report that this question went beyond the scope of Convention No. 87 and that this was a very complex situation. The issue was the relationship between Conventions Nos. 87 and 151 and the Committee of Experts then considered it was not in a position to make a decision. In the meantime, the Experts modified their position. The reference made to the International Court of Justice was then legitimate, since under the Constitution the Court was the only body competent to decide on interpretation problems. The question was: who should refer the case to the International Court of Justice? Could a government simply write a letter to the Court? This would be too easy.

The strained relations between the Government and the unions explained that this problem could not be resolved yet and that there was no solution in sight. This case should be replaced within the context of the part of the observations made by the Committee of Experts which would not be discussed this year.

Even before the publication of the report of the Committee of Experts, the Employers' members heard the unions complain that the Government constantly interfered in collective bargaining and that it violated union rights. The issues which were raised now could be debated, and should be examined again by the Committee next year. The Employers' members hoped that the Committee of Experts would examine again these questions in the meantime.

The particularly difficult relations between the unions and the Government are an obstacle to a solution. The question as to whether this communications centre could be integrated with the armed forces was a very difficult question to resolve since it concerned national legislation but, from a theoretical point of view, that solution could be considered. However, the Employers' members would not state whether this solution was the best one.

In any event, in view of the differing points of view, it would be necessary to emphasise in the conclusions that what was at issue in this country was not the freedom of association, but the situation of workers in a given sector which raised serious difficulties. The question had no relation whatsoever to the national economy, nor did it have links with the freedom of association. It should be admitted that positions were sometimes irreconcilable during a certain period, especially when it concerned so unique a sector. The Employers' members recalled that some cases - too many of them - had been discussed for 20 years without any solution or progress. This case was fairly recent and had been discussed three times during a relatively short period. Right now, it seemed that no solution was in sight and the Committee had to note it with regret.

The Worker member from Sweden, speaking on behalf of the Workers' members of Denmark, Finland, Norway and Sweden stated that a well-functioning supervisory system was a basic prerequisite of the ILO, but that the supervision would be meaningless if the member States did not respect the views expressed by the supervisory bodies. The Committee of Experts and the present Committee could examine objectively, independently and impartially cases brought before them. Until recently, their views were considered as binding by the member States, until the International Court of Justice had made a final decision. If that principle was not maintained, the whole work of the ILO would be undermined. Generally, however, there was no problem concerning the interpretations given by the supervisory bodies as the member States usually agreed with the Committees, which was further proved by the fact that only one case had been brought before the International Court of Justice since the founding of the ILO. In the present case, in spite of the unanimous views expressed by the supervisory bodies, 13 employees of the GCHQ had been dismissed because of their refusal to give up membership in the union of their choice. The right to join a trade union or to work for a union is one of the basic human rights. Therefore, it was of the utmost importance that a leading member State of the ILO should not ignore the views of the two Committee unless it took steps to bring the case for a final decision by the International Court of Justice. Any other behaviour would undermine the position of the supervisory bodies and of the supervisory system as a whole. The speaker therefore urged the Government to renew negotiations with the trade unions in order to find a solution consistent with the requirements of the Convention. The only other alternative would be to bring the case before the International Court of Justice.

The Worker member from Poland stated that his organisation was very happy to reappear in the ILO after eight years of official absence, and expressed his appreciation that it had not been forgotten. The speaker stressed that the GCHQ employees had been trade union members in many cases for up to 40 years; there had been no problem for many years and their loyalty was never questioned. Despite the fact that two ILO supervisory bodies reached the same conclusions, and that the trade unions have shown great flexibility and readiness to reach an agreement, the Government regrettably seemed to have rejected the possibility of a negotiated settlement. The credibility of the ILO, from which the Solidarity trade union benefited so much, would be put at risk if its supervisory bodies did not adopt a consistent approach. After so many years of discussion in this Committee concerning the present case, it was necessary, to retain the credibility of the Committee, to strongly draw world-wide attention to the gravity this case represented for workers in the United Kingdom. The GCHQ case is one of principle, the principle of freedom of association and human dignity.

The Employer member of Sweden, commenting on the report of the Committee of Experts, emphasised that he did not suggest that the Experts were not impartial or independent, but he questioned their expertise. The Committee of Experts had forgotten the basic principles governing the interpretation of treaties between States, as could be seen in the increasing number of overinterpretations in the reports of the past few years; he cautioned against that trend. He referred in particular to the present case and expressed the hope that the Experts would reconsider their position in that respect. The GCHQ establishment should be classified in the category of armed forces or police, and only the International Court of Justice could give an authoritative interpretation of the Convention. There were two ways to accomplish this: either the Conference or a majority of the Governing Body could ask for an opinion, or a government other than the United Kingdom or a worker delegate could make a constitutional complaint. The Governing Body could then establish a Commission of Inquiry whose conclusions could be appealed to the International Court of Justice by the Government. This course has now been open for five years and has not been used. Therefore, this Committee should not deal with this case any more, and the workers, if they so wish, could go to the Court by presenting a constitutional complaint.

The Worker member of the Federal Republic of Germany stated that what was most frightening was the fact that the Government assumed that trade union members were or could be a threat to the national security of the country. This reminded one of the hostile attitude towards the entire workers' movement which existed at the end of the last century. Members of the GCHQ had their own economic and social interests and, like all other employees, they needed the freedom to organise in unions and they had the right to bargain collectively. The Government ignored the findings, considerations, suggestions and demands of the ILO supervisory bodies. This was really a serious case because it was undermining the authority of the supervisory procedures. Meaningful dialogue did not mean one side who speaks and the other who does not listen. The present Committee cannot be satisfied if countries simply ignore its conclusions, because this would threaten its authority.

The Worker member of the Netherlands stated that he was really concerned about the possible consequences of this case for the ILO supervisory system, especially in view of the final comments of the Employers' members. The key sentence in the Government's declaration was, "we understand how the Committee of Experts came to its conclusions but we came to different conclusions and we should be allowed to do it". Back in 1978 there was a debate in this Committee between the Government representatives of the United Kingdom and of the USSR on this very point. The USSR representative had then been defending the point the British Government is now making, and the British representative had then submitted that that position would undermine the whole ILO supervisory machinery if this Committee would accept it. In cases where there were differences of opinion for 20 years, this Committee always showed its concern by expressing its views in a special paragraph. The key question here was: should the present Committee accept the Committee of Experts' views on this case, which included their views expressed in several reports in previous years. In the past two years the present Committee by and large always accepted the views of the Committee of Experts. Consequently the question was: did the Committee of Experts change their interpretation on this Convention, and in this very case this year? That was not so.

The Worker member of the United States commented on the Government representative's statement that it would serve no useful purpose to enter into any further negotiations with the unions involved; this statement greatly troubled him because it was slamming the door shut on any possible solution in consultation with the union, notwithstanding the fact that the latter was willing to reconsider the no-strike agreement sought by the Government. The legal complexities of this case were such that the final arbiter in this matter could only be the International Court of Justice. The speaker stated he would not quarrel with the Government's statement that the British courts had held that somehow there should be a fusion between Conventions Nos. 151 and 87; however, he doubted very seriously that the British courts at the same time indicated that there should be no further resort to resolution or possible compromise on the issue of the no-strike clause in an agreement between the Government and the trade unions. The Government representative never indicated a departure from the normal course of negotiation, reconsideration and re-negotiation if necessary, to resolve a very important problem. On the contrary, he seemed to take the position that the Government had always firmly supported these fundamental principles. Consequently, the present Committee should be preoccupied by such an adamant refusal to re-enter into any negotiations despite the union's indication of its willingness to negotiate on the very issue which is the root cause of the Government's concern in this case.

The Employer member of the United States replied to the comments made earlier by the Worker member of the Netherlands; this appeared to be a case of a "rush to judgement", whereas in fact this case was certainly recent. He further stated that this appeared to be a question of form over substance, since the functions of the GCHQ employees seemed to be inherently military. If these employees had been labelled "military" in terms of their functions, there probably would have been no problem; the fact that they were not so labelled expressly seemed to make a great difference to the Committee of Experts. The speaker also stated that there were really two questions here. Firstly, as mentioned by the Employers' members, on the basis of the 1985 observations of the Committee of Experts, there seemed to be an evolution and changing of the findings on the part of that Committee. Secondly, as was pointed out by the Employer member of Sweden, there was also the question of whether or not the Committee of Experts had in fact over-interpreted or misread this particular Convention. These questions were very different from the nature of the debates that took place in the late 1970s and early 1980s, which were really dealing with questions of application and whether there should be differences in application based on the nature of the political, social and economic views of particular governments.

The Worker member of the Netherlands replied to the previous speaker on two points. Firstly, he clarified that what he said before was that, if the present Committee on a certain case accepted over a number of years the views expressed by the Committee of Experts, the only reason to disagree now could be that the Committee of Experts had now changed their interpretation. Secondly, the speaker explained the criticism he had put forward during his intervention on the Dutch case; he made it clear that he criticised the fact that during a number of years the Dutch trade unions had asked for an interpretation by the Committee of Experts which did not come for a couple of years.

The Government representative stated he would make sure that the points made would be reported to his Government. He clarified some of his previous comments in reply to the Worker member of the United Kingdom, emphasising, first, that whilst the United Kingdom had a common law based system and not a system of law based on positive rights, in reality and in practice, public servants in the United Kingdom have greater freedom of association than in most other countries. Second, this was not a general case on freedom of association but a very specific case, concerning an establishment which was vital to national defence. Third, the trade union representatives had now suggested, after four years, the possibility of a no-strike agreement; to the speakers knowledge, this had not been mentioned to his Government. Fourthly, the British Government has absolutely never impugned the loyalty either of employees at GCHQ or of the trade unions. However, for reasons of national bargaining across the public service, the national trade unions had used the GCHQ employees as part of a national bargaining strategy. This may have been a legitimate action but it did undermine the credibility of the trade unions in the particular and unique situation of that establishment; this was worrying and troublesome. The speaker stressed again that this was not a general freedom of association situation, but a very unique case due to the special nature of GCHQ; the Government's action in this case was not an anti-union measure, but one taken solely in the interests of national security. In the meeting of the Governing Body which recently took place the new Worker member on the Committee of Freedom of Association pointed out that it was important to make a distinction between what he called "bureaucratic idiocies" and what he termed "monstrous abuses of human rights". The Government did not believe it breached Convention No. 87, but if the present Committee were to find otherwise, the speaker hoped that if fault there was, it lay in the former category. The Workers' members had referred in their comments to special conclusions on this matter; the speaker hoped that this Committee would think very clearly and carefully before agreeing to this. To adopt that type of conclusion for matters that were not fundamental human rights issues would be to undermine the force of a sanctioning policy that the ILO has at its disposal. This Committee should not have double standards, and the universality of the ILO standards should be maintained.

The Workers' members proposed that these conclusions be mentioned in a special paragraph of the present Committee's general report since, although this was an important case which had been discussed on many occasions, the Government had not initiated negotiations with the trade unions concerned and the situation had not progressed.

The Employers' members pointed out that the legislative questions had not been discussed by this Committee and should not be included in the conclusions; if reference to these aspects were retained in the conclusions, the dissenting position of the Employers should be recorded. The proposal that the conclusions be included in a special paragraph was not acceptable: a complex legal question was at issue, which could be finally resolved only by the International Court of Justice; the issue was, who would take the initiative of an appeal to the Court. It followed that the situation was not clear as had sometimes been alleged. The case was not typical. Fortunately, the existence and extent of freedom of association in the country was not at stake; it was merely an individual borderline case which warranted full attention as such and which was being discussed for the third time now. In many other cases, a legal trade union monopoly, depriving all workers of freedom of association, had been debated for over 20 years. There was a question of equality of treatment, so that a special paragraph could not be accepted in the present case.

The Workers' members requested that a nominal vote be held to decide whether this case should be mentioned in a special paragraph.

The Government member of Czechoslovakia, speaking on behalf of a certain number of socialist countries, stated that they were not in favour of solving problems by a vote, but preferred that a solution be sought by other means. However, if a vote was to take place, the complexity of the problems at issue required time for reflection; therefore, they asked that the vote be delayed until a later time, in the hope that the Workers' and Employers' members could reach an agreement in the meantime.

The Government member of the United States wondered whether this case should be pushed so far. She considered that this was not an issue by whether the United Kingdom was a developed or developing country, and that if there had been an egregious violation of freedom of association there would be no question that a special paragraph was merited. Indeed, this was a very special case. She was concerned that a vote on this matter would damage the good will and consensus which were so important to the work of the Committee.

The Government member of France requested that, were a vote to be held, members should have the possibility of explaining their vote.

After the results of the vote had been announced, various Government members went on the explain the reasons for their vote.

A Government member of Sweden, speaking on behalf of the five Nordic countries, stated that the Governments of those countries had agreed with the conclusions adopted by the present Committee in this case. but had voted against a special paragraph because they wished to maintain the particular significance of the special paragraphs, which in their opinion should continue to be reserved for the most serious cases.

A Government member of the Federal Republic of Germany explained his Government's "No" vote, noting that the question voted upon was not whether the United Kingdom had violated the Convention; rather the vote had been about the fundamental principles governing the work of the present Committee: dialogue and consensus. Taking a vote was contrary to consensus and did not contribute to furthering a dialogue, which was sought in this case, in particular by the Workers.

A Government member of Portugal stated that he voted "No" because of the doubts which surrounded an interpretation of the situation. His Government thought this case should be subject to further legal analysis; the present Committee should not adopt a decision which, by its exceptional nature, would have to be seen as final. In addition, in other cases where doubts of interpretation existed, decisions different from the one proposed had been taken; this had to stand in the way of mentioning the United Kingdom in a special paragraph of the report.

A Government member of Australia had disfavoured the inclusion of this case in a special paragraph for the following reasons. The present Committee traditionally reached a consensus view; the approach taken in this case was cause for concern. Having noted the discussion with interest and the special and unique circumstances of this case, his Government none the less thought there might be a technical breach of the Convention. The United Kingdom Government had not moved to address the issues raised by the Committee of Experts and apparently saw no need so to move. The Australian Government supported the Committee of Experts' conclusions. It encouraged the United Kingdom Government to undertake further negotiations with the relevant trade unions to seek, in a manner consistent with the requirements of the Convention, resolution of the issue. However, special paragraphs had previously been used only in respect of gross breaches of human rights, circumstances which did not apply in this case. At this stage, a special paragraph would be a disproportionate response.

The Workers' members regretted the result of the vote; they were also saddened by not having been able to reach a consensus with the Employers' members, as was usually the case. They wished to make it clear that special paragraphs did not represent a judgement; they were merely an indication of which cases had been considered worth highlighting and on which governments and employers' and workers' organisations were invited to try to overcome the difficulties. They believed in the independence, impartiality and objectivity of the Committee of Experts and in the great importance of the Committee on Freedom of Association. They stated that standards and the supervisory machinery existed for both industrialised countries and developing countries; problems in the industrialised countries assumed different proportions from the ones they assumed in poor countries, in so far as there was non-compliance or serious difficulties were encountered, particularly in relation to basic standards, such as freedom of association, they believed that attention should be drawn to this problem as well. The Workers' members explained the reasons why they had proposed the use of a special paragraph: firstly, because they thought all the possibilities of dialogue and conciliation had not been exhausted within the country; secondly, because of the dismissal of 13 workers for faithfulness to their trade union during the course of the procedure before the Committee on Freedom of Association; and thirdly, in order to urge and encourage the British Government not to close the door but rather to reopen negotiations. They expressed their surprise at the narrow margin in the voting results and their satisfaction with the total solidarity shown by the Workers' members, which they considered to be important and historical.

A Government member of Ecuador explained that he had, with much regret, voted in favour of mentioning this case in a special paragraph in the hope that this would spur other countries to reflect on the tendency towards singling out situations in small countries which were sometimes the result of pressure from political interests outside the country. He expressed satisfaction that a democratic vote in connection with the present case had shown that principles of equity were not always violated.

A Government member of the United States declared it was a shame that the situation had become so polarised. Her Government questioned whether this matter should have come to a vote at all. She hoped that the present Committee could now move forward in a positive and constructive manner, on the basis of good will and consensus. A vote had been cast against a special paragraph because its use should be reserved for serious, longstanding and pervasive violations of a ratified Convention; the United Kingdom case did not meet that test. The United States Government firmly believed in the uniform, universal application of ILO standards, regardless of a country's political orientation or level of economic development. In the view of her Government, this had not been a vote for or against a double standard; it had been a vote for or against lowering the standard that the present Committee applies in deciding whether to mention a case in a special paragraph. She declared that her Government was not ready to change the criterion determining whether or not a case should be registered in a special paragraph. Her Government thought that another case discussed recently in the present Committee had also not merited a special paragraph, because there had appeared to be signs that the government in question was taking steps towards the fuller application of a ratified Convention.

A Government member of France stated that he had voted "No", essentially because of the jurisprudence of the Committee. The long-standing work practices of the present Committee allowed stable and objective positions to be taken, whether the country was large or small, industrialised or developing. According to tradition, a special paragraph could be used when try in question met two criteria; firstly, that it had been under examination for a long time without any progress being made secondly, that it was a very serious case of violation of human rights. Each case of a special paragraph had to be put into perspective, that is, related to and compared with others. It had not seemed to him that the present case met the two criteria mentioned above. Finally, he expressed the hope that a return would be made to consensus, which was the usual working method of the Committee.

A Government member of Uruguay explaining his "Yes" vote stated that it had been based on the objective facts described in the Committee of Experts' report, which had said that workers were dismissed while the Committee on Freedom of Association was examining the case. In this sense, his vote constituted support for the ILO supervisory system. He indicated that the same criteria should be applied to other similar and even more serious cases dealt with by the present Committee.

The Government member of the Netherlands stated that a "No" vote had been cast because the Government considered the present Committee should follow its usual procedure of reaching decisions by consensus.

Explaining the reasons for its abstention on the vote, the Government member of Czechoslovakia referred to the earlier expression of his Government's view that such issues should be decided by consensus not by vote. Further, it was his Government's view that sanctions should be applied only in cases of gross and repeated violations of the respective Conventions and where consensus had been reached. His Government had not been fully convinced of the arguments put forward in this case and wondered whether a real issue of principle was at stake, or rather a matter of disagreement between the Government of the United Kingdom and the Committee of Experts over an interpretation of one specific issue covered by Convention No. 87.

A Government member of Bulgaria explained his delegation's abstention in the vote on the basis of his Government's opinion that only dialogue should be promoted in the present Committee and that decisions should be reached only by consensus. A vote was not a dialogue. No matter its outcome, it did not serve the cause of co-operation. He stressed that to achieve better results, emphasis should be placed on dialogue.

A Government member of Turkey wished to explain the "No" vote of his Government. He recalled the mandate of the present Conference Committee, which should not be exceeded; the striking of a balance between North or South, East or West, was up to other United Nations bodies having responsibility in that regard. While his Government had great respect for the Committee of Experts and its report, it did not take the conclusions therein as word of law. The present Committee was supposed to feel free to make a full assessment of all the aspects in the report, without any prejudice in regard to any consideration on a specific country.

A Government member of the United Kingdom noted that his Government had voted "No" because it felt that registration of this case as a special paragraph would be disproportionate and that it would undermine the force of ILO sanctions. This was not a North-South question. It was a question of the norms governing the practice of the present Committee. The Workers' members had, however, demanded a vote and the issue had been put to the democratic process which had now produced its results. His Government thanked the present Committee for its decision, particularly as an indication of the return to a sense of proportion. The Government hoped that the Workers' members would take good note of the outcome.

The Chairman of the Committee proposed the following conclusions:

The Committee took note of the information submitted by the Government representative and of the detailed discussions which took place in the Committee. The Committee expressed its concern at the situation discussed by the Committee of Experts, which noted in its report that the GCHQ workers still did not enjoy union rights, contrary to the Convention. It recalled in that respect the conclusions of the Committee on Freedom of Association as regards the GCHQ case. The Committee noted with regret that the Government had dismissed some GCHQ workers during the proceedings pending before the Committee on Freedom of Association, and that the Government does not consider that it would be useful to hold negotiations with the workers' associations on the right to organise of workers. The Committee expressed the firm hope that the Government will reconsider its position, through dialogue with the trade unions, with a view to finding solutions to the factual and legal situation, that would be in full conformity with the Convention. The Committee expressed the firm hope that the next report of the Government requested by the Committee of Experts will contain information on definite developments in this situation, in confirmity with the Convention. In addition, the Committee asked the Government to study very carefully the comments of the Committee of Experts on the Employment Act of 1988, and to provide information on the measures it considered taking to implement these comments.

The Workers' members proposed that these conclusions be mentioned in a special paragraph of the present Committee's general report since, although this was an important case which had been discussed on many occasions, the Government had not initiated negotiations with the trade unions concerned and the situation had not progressed.

The Employers' members pointed out that the legislative questions had not been discussed by this Committee and should not be included in the conclusions; if reference to these aspects were retained in the conclusions, the dissenting position of the Employers should be recorded. The proposal that the conclusions be included in a special paragraph was not acceptable: a complex legal question was at issue, which could be finally resolved only by the International Court of Justice; the issue was, who would take the initiative of an appeal to the Court. It followed that the situation was not clear as had sometimes been alleged. The case was not typical. Fortunately, the existence and extent of freedom of association in the country was not at stake; it was merely an individual borderline case which warranted full attention as such and which was being discussed for the third time now. In many other cases, a legal trade union monopoly, depriving all workers of freedom of association, had been debated for over 20 years. There was a question of equality of treatment, so that a special paragraph could not be accepted in the present case.

The Workers' members requested that a nominal vote be held to decide whether this case should be mentioned in a special paragraph.

The Government member of Czechoslovakia, speaking on behalf of a certain number of socialist countries, stated that they were not in favour of solving problems by a vote, but preferred that a solution be sought by other means. However, if a vote was to take place, the complexity of the problems at issue required time for reflection; therefore, they asked that the vote be delayed until a later time, in the hope that the Workers' and Employers' members could reach an agreement in the meantime.

The Government member of the United States wondered whether this case should be pushed so far. She considered that this was not an issue by whether the United Kingdom was a developed or developing country, and that if there had been an egregious violation of freedom of association there would be no question that a special paragraph was merited. Indeed, this was a very special case. She was concerned that a vote on this matter would damage the good will and consensus which were so important to the work of the Committee.

The Government member of France requested that, were a vote to be held, members should have the possibility of explaining their vote.

The Committee adopted the conclusions proposed by the Chairman with regard to the GCHQ issue and decided that, in a later sitting, a nominal vote would be held to decide on the appropriateness of mentioning this case in a special paragraph unless, in the meantime, the Workers' and Employers' members could conclude an agreement on this issue.

At a later sitting the Committee proceeded to a record vote at the request of the Workers' members for the registration of this case in a special paragraph of the report of the Committee.

The results of the vote were as follows: 56,845 votes in favour; 60,398 votes against; 9,555 abstentions. Consequently, the Committee decided not to register this case in a special paragraph of its report.

After the results of the vote had been announced, various Government members went on the explain the reasons for their vote.

A Government member of Sweden, speaking on behalf of the five Nordic countries, stated that the Governments of those countries had agreed with the conclusions adopted by the present Committee in this case. but had voted against a special paragraph because they wished to maintain the particular significance of the special paragraphs, which in their opinion should continue to be reserved for the most serious cases.

A Government member of the Federal Republic of Germany explained his Government's "No" vote, noting that the question voted upon was not whether the United Kingdom had violated the Convention; rather the vote had been about the fundamental principles governing the work of the present Committee: dialogue and consensus. Taking a vote was contrary to consensus and did not contribute to furthering a dialogue, which was sought in this case, in particular by the Workers.

A Government member of Portugal stated that he voted "No" because of the doubts which surrounded an interpretation of the situation. His Government thought this case should be subject to further legal analysis; the present Committee should not adopt a decision which, by its exceptional nature, would have to be seen as final. In addition, in other cases where doubts of interpretation existed, decisions different from the one proposed had been taken; this had to stand in the way of mentioning the United Kingdom in a special paragraph of the report.

A Government member of Australia had disfavoured the inclusion of this case in a special paragraph for the following reasons. The present Committee traditionally reached a consensus view; the approach taken in this case was cause for concern. Having noted the discussion with interest and the special and unique circumstances of this case, his Government none the less thought there might be a technical breach of the Convention. The United Kingdom Government had not moved to address the issues raised by the Committee of Experts and apparently saw no need so to move. The Australian Government supported the Committee of Experts' conclusions. It encouraged the United Kingdom Government to undertake further negotiations with the relevant trade unions to seek, in a manner consistent with the requirements of the Convention, resolution of the issue. However, special paragraphs had previously been used only in respect of gross breaches of human rights, circumstances which did not apply in this case. At this stage, a special paragraph would be a disproportionate response.

The Workers' members regretted the result of the vote; they were also saddened by not having been able to reach a consensus with the Employers' members, as was usually the case. They wished to make it clear that special paragraphs did not represent a judgement; they were merely an indication of which cases had been considered worth highlighting and on which governments and employers' and workers' organisations were invited to try to overcome the difficulties. They believed in the independence, impartiality and objectivity of the Committee of Experts and in the great importance of the Committee on Freedom of Association. They stated that standards and the supervisory machinery existed for both industrialised countries and developing countries; problems in the industrialised countries assumed different proportions from the ones they assumed in poor countries, in so far as there was non-compliance or serious difficulties were encountered, particularly in relation to basic standards, such as freedom of association, they believed that attention should be drawn to this problem as well. The Workers' members explained the reasons why they had proposed the use of a special paragraph: firstly, because they thought all the possibilities of dialogue and conciliation had not been exhausted within the country; secondly, because of the dismissal of 13 workers for faithfulness to their trade union during the course of the procedure before the Committee on Freedom of Association; and thirdly, in order to urge and encourage the British Government not to close the door but rather to reopen negotiations. They expressed their surprise at the narrow margin in the voting results and their satisfaction with the total solidarity shown by the Workers' members, which they considered to be important and historical.

A Government member of Ecuador explained that he had, with much regret, voted in favour of mentioning this case in a special paragraph in the hope that this would spur other countries to reflect on the tendency towards singling out situations in small countries which were sometimes the result of pressure from political interests outside the country. He expressed satisfaction that a democratic vote in connection with the present case had shown that principles of equity were not always violated.

A Government member of the United States declared it was a shame that the situation had become so polarised. Her Government questioned whether this matter should have come to a vote at all. She hoped that the present Committee could now move forward in a positive and constructive manner, on the basis of good will and consensus. A vote had been cast against a special paragraph because its use should be reserved for serious, longstanding and pervasive violations of a ratified Convention; the United Kingdom case did not meet that test. The United States Government firmly believed in the uniform, universal application of ILO standards, regardless of a country's political orientation or level of economic development. In the view of her Government, this had not been a vote for or against a double standard; it had been a vote for or against lowering the standard that the present Committee applies in deciding whether to mention a case in a special paragraph. She declared that her Government was not ready to change the criterion determining whether or not a case should be registered in a special paragraph. Her Government thought that another case discussed recently in the present Committee had also not merited a special paragraph, because there had appeared to be signs that the government in question was taking steps towards the fuller application of a ratified Convention.

A Government member of France stated that he had voted "No", essentially because of the jurisprudence of the Committee. The long-standing work practices of the present Committee allowed stable and objective positions to be taken, whether the country was large or small, industrialised or developing. According to tradition, a special paragraph could be used when try in question met two criteria; firstly, that it had been under examination for a long time without any progress being made secondly, that it was a very serious case of violation of human rights. Each case of a special paragraph had to be put into perspective, that is, related to and compared with others. It had not seemed to him that the present case met the two criteria mentioned above. Finally, he expressed the hope that a return would be made to consensus, which was the usual working method of the Committee.

A Government member of Uruguay explaining his "Yes" vote stated that it had been based on the objective facts described in the Committee of Experts' report, which had said that workers were dismissed while the Committee on Freedom of Association was examining the case. In this sense, his vote constituted support for the ILO supervisory system. He indicated that the same criteria should be applied to other similar and even more serious cases dealt with by the present Committee.

The Government member of the Netherlands stated that a "No" vote had been cast because the Government considered the present Committee should follow its usual procedure of reaching decisions by consensus.

Explaining the reasons for its abstention on the vote, the Government member of Czechoslovakia referred to the earlier expression of his Government's view that such issues should be decided by consensus not by vote. Further, it was his Government's view that sanctions should be applied only in cases of gross and repeated violations of the respective Conventions and where consensus had been reached. His Government had not been fully convinced of the arguments put forward in this case and wondered whether a real issue of principle was at stake, or rather a matter of disagreement between the Government of the United Kingdom and the Committee of Experts over an interpretation of one specific issue covered by Convention No. 87.

A Government member of Bulgaria explained his delegation's abstention in the vote on the basis of his Government's opinion that only dialogue should be promoted in the present Committee and that decisions should be reached only by consensus. A vote was not a dialogue. No matter its outcome, it did not serve the cause of co-operation. He stressed that to achieve better results, emphasis should be placed on dialogue.

A Government member of Turkey wished to explain the "No" vote of his Government. He recalled the mandate of the present Conference Committee, which should not be exceeded; the striking of a balance between North or South, East or West, was up to other United Nations bodies having responsibility in that regard. While his Government had great respect for the Committee of Experts and its report, it did not take the conclusions therein as word of law. The present Committee was supposed to feel free to make a full assessment of all the aspects in the report, without any prejudice in regard to any consideration on a specific country.

A Government member of the United Kingdom noted that his Government had voted "No" because it felt that registration of this case as a special paragraph would be disproportionate and that it would undermine the force of ILO sanctions. This was not a North-South question. It was a question of the norms governing the practice of the present Committee. The Workers' members had, however, demanded a vote and the issue had been put to the democratic process which had now produced its results. His Government thanked the present Committee for its decision, particularly as an indication of the return to a sense of proportion. The Government hoped that the Workers' members would take good note of the outcome.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

A Government representative recalled that this case arose from the action taken by the Government in 1984 in regard to the staff employed at a Government establishment known as Government Communications Headquarters (GCHQ) in Cheltenham. GCHQ was one of the security and intelligence agencies upon which the United Kingdom's national security depended. The staff were, however, all civilians, members of the Civil Service and were not subject to military discipline. It was in the interests of national security that the operations and activities of GCHQ be maintained at all times without interruption and interference. The work of the individual members of the staff was of vital importance to the operational effectiveness of GCHQ as a whole. The policy of sucessive governments had been to encourage membership of national unions among to staff of GCHQ, to recognise such unions where appropriate and to negotiate with them. However, between 1979 and 1981 industrial action had been taken at GCHQ on several occasions leading to a loss of over 10,000 working days. Most of this industrial action arose from disputes between the Government and national unions over the pay and conditions of service applicable to civil servants generally. This disruption to the work of GCHQ was co-ordinated and encouraged by national unions. Whenever a threat of industrial action existed, GCHQ sought informally to dissuade staff from taking action which would adversely affect the conduct of operations. In 1981 the national unions refused to co-operate. The Government was convinced that industrial disruption of the kind which took place could do real damage to national security and thus decided that the conditions of service of GCHQ staff should be brought into line with those for other staff engaged on security and intelligence duties. The Prime Minister therefore issued an instruction in January 1984 under Article 4 of the Civil Service Order-in- Council, 1982, providing that civil servants employed at GCHQ should not be members of any trade union other than a departmental staff association. Various rights under employment protection legislation were also disapplied. Existing staff were given the choice between remaining at GCHQ under the new terms and seeking a transfer to other suitable posts. This decision was reached after long and careful consideration of all aspects including obligations under ILO Conventions to which, it was concluded, there was no infringement. In discussion held with the national unions following the Government announcement, the trade unions proposed a no-disruption agreement. However, the Government had to reject these proposals as they did not provide sufficient guarantee that difficulties would not arise in the future. The Government representative further recalled that these measures were considered by the courts of the United Kingdom at three separate levels and the Government's decision was upheld. The European Commission of Human Rights concluded that no breach of Article 11 of the European Convention on Human Rights had occurred. The Government had explained to the Conference Committee in detail in 1985 why its actions did not represent a breach of Convention No. 87. The basis of the Government's position was that where a government had ratified two International Labour Conventions dealing with the same subject, the provisions of both Conventions must be considered when deciding whether the Government was meeting its obligations. In the present case the two relevant Conventions were No. 87 concerning freedom of association and protection of the right to organise and No. 151 concerning labour relations in the public service. Under Article 1(2) of Convention No. 151 the extent to which the guarantees concerning the protection of the right to organise applied to certain high level employees or to employees whose duties were of a highly confidential nature was to be determined by national laws or regulations. It was therefore clear that the protection, under Article 4 of the same Convention, against acts of anti-union discrimination should be a matter for governments to determine when employees in highly confidential work were concerned. The United Kingdom had exercised its rights under national laws to make regulations in respect of employees at GCHQ in the interests of national security and it had done so lawfully. In response to the Committee of Expert's request, the Government had regularly reported on developments in this matter, but there were no recent developments on this case.

The Worker representative of the United Kingdom pointed out the length of time this case had been before the present Committee. He stressed that any offence under Convention No. 87 was a grave offence to all workers throughout the world. This matter was particularly grave because if such a problem could not be solved in a country with an advanced economy and with a history as one of the birthplaces of trade unionism in the world, then what hope was there for workers in less developed countries, under military dictatorships or under martial law. He emphasised the difficulty in pursuing, in the Committee, a dialogue with a Government that listened but apparently had no intention whatsoever of complying with the requests of the Committee of Experts and the Committee on Freedom of Association. In his view, the Government spoke as though it had the right on its side and it was the Committee of Experts and the Conference Committee which year after year had been all wrong. Human rights could not be preached to the rest of the world without accepting the same human rights enshrined by Convention No. 87 in the United Kingdom. With respect to the history of this case he recalled that a group of civil servants employed, admittedly, on secret work at GCHQ were for more than a quarter of a century in membership of nationally recognised trade unions. They found no conflict between their work and their membership of trade unions, and trade unions found no difficulty in negotiating on their behalf. Indeed, trade union officers were given security clearance to examine part of the work, to ensure that the jobs were correctly graded and paid, to ensure that they were getting their full trade union rights. When they were originally recruited to membership of the trade unions, the Government never suggested at any stage during that period that there should be no-strike agreements. The industrial action which took place resulted from unilateral withdrawal by the Government of a 25-year standing pay agreement; this led to a series of one-day strikes in most civil service departments and a warning from employees at GCHQ that they were to take part in this action. Some years after the event the Government withdrew the right of national unions to organise at GCHQ. At this time the Government offered L 1,000 to those employees who would give up their trade union rights. If the employees decided to stay with the trade union they were threatened with dismissal or transfer to other parts of the country where their special skills could no longer be used. Those who stayed with their trade unions were denied rights and suffered discrimination. The company or house union which was established was not allowed to have contact with any other union or any national centre. Convention No. 87 was agreed by all to be a keystone to the standardsetting activity. In this case there was a deliberate and conscious infringement of this Convention. The question of the relationship of this case to Convention No. 151 had in fact been considered by the Committee of Experts, which had rejected the argument put forward by the Government. Under no circumstances did Convention No. 151 override Convention No. 87, which applied to employees at GCHQ, since Article 9 allowed only for the exclusion of the armed forces and the police. In its 235th Report, the Committee on Freedom of Association had stated in its Recommendations that steps should be taken by the Government to pursue negotiations with the civil servants' unions involved, with a view to restoring the rights of freedom of association as laid down in Convention No. 87. This was a simple request and it required a simple answer which this Committee had not received. The speaker thus requested the Government representative to state whether he had the authority of his Government to agree that discussions would be initiated by the Government urgently. If he had no such authority, then the United Kingdom had no intention of fulfilling its commitments under Convention No. 87 and thus would be a Government refusing a request both by the Committee on Freedom on Association and the Committee of Experts. Special paragraph procedures had been introduced for cases of this particular nature, and if the Government representative was unable to give assurances a special paragraph must be considered; otherwise the present Committee would be accused of discrimination.

The Employers' members noted that it was difficult to keep up with the details and committed positions in this dispute between the Government and the workers of the United Kingdom. It would be desirable if the two parties could find an internal solution to this problem as the Employers could not contribute much in this regard. The Government stated that GCHQ was part of military security, and that was why Convention No. 87 did not apply. With respect to the relationship between Convention No. 87 and Convention No. 151, the Committee of Experts had already commented upon this relationship. Previously it appeared that a practical solution had been found but this proved not to be the case. The Committee of Experts had requested the Government to report on new developments, and there was no doubt that this would be done. However, for the time being there were no new developments in this difficult case.

The Workers' members added that all the arguments restated by the Government representative had been before the Committee of Experts, which had squarely come to the conclusion that Convention No. 87 granted the right to organise and made exception only for members of the armed forces and the police. There was no exception for confidential employees, no matter how important they were. With respect to the relationship between Convention No. 151 and Convention No. 87, the Committee of Experts had concluded that Convention No. 87 guaranteed the workers, including those in public service, the right to freely establish and join organisations of their own choosing and that exceptions were not applicable to the present case. Moreover, the Committee of Experts had associated itself with the decision approved by the Governing Body in Case No. 1261 of the Freedom of Association Committee. The Committee of Experts pointed to the recommendation contained in that case, and reiterated it as their own, calling upon the Government to initiate negotiations with the trade unions of the public servants concerned.

The Government representative stated that the United Kingdom had always had, and he hoped would always have, total confidence in the integrity of the supervisory system of the ILO and that it had always tried to fully participate in that system. But any system was composed of individuals which were human beings, and on this one particular point the Committee of the Experts was not correct. His Government respected their view but its opinion differed from theirs. The United Kingdom could not accept that Convention No. 87 could or should be examined in isolation from Conventions Nos. 98 and 151. It was perfectly clear from the Preamble to Convention No. 151 that it was adopted with the two earlier Conventions in mind. Convention No. 87 should not continue to apply to the public service, where it would be incompatible with the purpose of the more specific Convention No. 151. Article 1(2) of Convention No. 151 meant what it stated, namely that it was for governments to determine by national laws or regulations the extent to which the guarantees provided for in the Convention applied to public service workers who were engaged in highly confidential work. The Court of Appeal in the United Kingdom specifically held that Article 1(2) of Convention No. 151 took precedence over Convention No. 87. This decision was at odds with earlier decisions of the Committee on Freedom of Association. The Committee of Experts, while not addressing these issues, had noted elsewhere that the interpretation of Conventions involved difficulties in respect of which the international Court of Justice might more appropriately be requested to provide an opinion. This was a recognition by the Committee of Experts that the interpretation of the Conventions by the Committee on Freedom of Association was not the only sustainable one and was not necessarily definitive. In its 1985 Report the Committee of Experts specifically referred to the Recommendations of the Committee on Freedom of Association. The Government representative noted that the Committee of Experts endorsed the view that, if appropriate negotiations with the national unions had taken place, the Government's objective of guaranteeing the uninterrupted operation of the work at GCHQ could have been achieved in an atmosphere of good industrial relations and without any need to consider the compatibility of government measures with ILO Conventions. It also drew attention to the limitations which might, in accordance with ILO principles, be placed on the rights of public servants to organise and on the means of action available to public servants. The Government noted this helpful and constructive suggestion from the Committee of Experts. The Government had seriously considered whether a solution to the GCHQ problem could be found through renewed negotiations and had decided that this would not serve a useful purpose. This position was reinforced by the trade unions' rejection of concluding a no-strike agreement. The Government concluded by stating that giving the most careful consideration to the comments both of the Committee on Freedom of Association and the present Report of the Committee of Experts, the Government remained firmly of the view, regretfully, that further negotiations with the unions would serve no useful purpose.

The Worker member of Argentina noted that this was a problem which had already been discussed in depth by a body with the highest standing in the Organisation, the Governing Body Committee on Freedom of Association. There, the matter had been studied and conclusions had been reached which were being followed up by the Committee of Experts. This case involved a Government which, after many years' collective bargaining, one day changed the entire system and prevented staff from having any trade union rights. The Government representative of the United Kingdom had clearly stated that his Government was not going to accept any conclusion other than their own interpretation. The workers in the United Kingdom were protected by Convention No. 87, Convention No. 151 was there to protect the right to organise of public servants who are not covered by Convention No. 87. The Government of the United Kingdom was trying to apply a restrictive clause contained in Convention No. 151 over the vested rights of workers under Convention No. 87. He regretted the position taken by the Employers' members that an internal solution should be found to this problem, and that they could not contribute much. If this position were taken each time public servants were involved the ILO tripartite supervisory system would no longer be operative.

The Workers' members noted that the Government representative had stated his Government's open disagreement with the Committee of Experts on this case. Therefore there was no other recourse than to highlight this as an important case presenting great difficulties in a special paragraph in the Report.

The Worker member of Austria pointed out, as a member of the Committee on Freedom of Association, that the Committee, with the support of the Governing Body, had for the past three years asked the Government to start negotiations with the trade unions in connection with GCHQ and Convention No. 87. From the outset, the Government had questioned the applicability of Convention No. 87 as compared with Convention No. 151, and the Committee on Freedom of Association had asked the Committee of Experts to bring more light into this question, which indeed was treated very clearly in their Report. The present Committee could not continue dialogue or expect to make any progress in this case when the Government representative stated that the opinion of the Committee on Freedom of Association and of the Committee of Experts was a mistake. A special paragraph would be appropriate in this case.

The Worker member of Spain noted that there should not be a national solution which contradicted the standards clearly expressed in the Convention. Convention No. 87 entitled civil servants to create and join trade unions. In this case a rather suspect interpretation with a suspect criterion such as national security was being applied at the national level, as was done in countries lacking democracy. The Committee on Freedom of Association had clearly stated that public service officials could enjoy freedom of association although there may be restrictions on the exercise of the right to strike. Therefore, in order to restrict the right to strike, the Government could not suppress freedom of association, which was what the United Kingdom Government had done. Convention No. 87 expressly prohibited this type of interference and the conclusion of the present Committee should be that either the Government representative should accept the negotiations as proposed by the Worker member of the United Kingdom or the Committee would have to adopt the special paragraph.

The Employers' members declared their abstention on the proposal that the conclusions should be contained in a special paragraph. They stated that, on this proposal, they did not hold the same opinion as the Workers' members and sometimes such small differences of view had an effect on the subsequent procedure, as would perhaps be seen next year.

The Workers' members expressed their deep regret over the Employers' members abstention. A failure to mention this case in a special paragraph could give the unfortunate impression that there were two standards operating: one for the less developed countries and another for rich European countries. They could see no point in having the Committee vote on their proposal.

The Committee noted the information supplied by the Government representative, as well as the detailed discussion within the present Committee. It noted with concern that, despite the time which had elapsed, no measures had been taken to implement fully the right to organise of workers without distinction whatsoever, as provided by the Convention. It expressed the firm hope that discussions would be commenced rapidly between the Government and the unions concerned so as to enable solutions to the legislative and factual situation to be found. It trusted that the Government's next report to the Committee of Experts would contain information on positive developments in this respect.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative recalled that, when the position of the staff at the Government Communications Headquarters (GCHQ) had been discussed by the Committee in 1985, the United Kingdom Government representative had made a detailed statement of the reasons why the Government considered its action with regard to GCHQ to be in conformity with its obligations under Convention No. 87 and Convention No. 151, which were clearly inter-related. Since that discussion, the matters referred to in the case had been regularly considered by the Committee on Freedom of Association. He wished to draw the present Committee's attention to some very important developments not mentioned by the Committee of Experts, which had arisen from action taken by an umbrella organisation representing affiliates of the Trades Union Congress (TUC), which had initiated the comments submitted to the Committee of Experts and the complaints brought before the Committee on Freedom of Association.

In 1985 that organisation-the Council of Civil Service Unions-and certain individual applicants currently or formerly employed at GCHQ, had introduced an application before the European Commission on Human Rights, claiming that the Government's action with regard to GCHQ was incompatible with its obligations under the European Convention on Human Rights, which includes guarantees of freedom of association. The proceedings had concluded in January 1986 with a decision by the Commission that the application was inadmissible. That decision had not, however, exhausted the proceedings in the matter, since the Commission also had before it an application made on behalf of two individual members of the GCHQ staff which covered the same general ground. His Government would be in a position to consider its response to the observations made by the Committee of Experts once the application to the European Commission on Human Rights had finally been disposed of, and it hoped to be in a position to submit that response in time for the session of the Committee on Freedom of Association to be held in November.

The Worker member of the United Kingdom said that, in view of the fact that the issue under consideration was also the subject of legal proceedings elsewhere, some advice from the ILO as to how the matter could continue to be dealt with might be helpful at some stage. However, in the opinion of the United Kingdom trade union movement, it was quite clear that, regardless of what happened elsewhere, the case still had to be considered by the Committee of Experts and by the present Committee. The salient facts were that during the national strikes in 1981, the staff at GCHQ had joined the strikes for one or two days, as a token of solidarity. The security of the country had not been affected and no real harm had been done. In retaliation, some two or three years afterwards their right to choose their own union had been denied to them. Staff had been offered //cf1,000 to give up their rights, with the alternative of dismissal or compulsory transfer to another part of the country. Indeed, some had already been made redundant or had been paid off with early pensions, and some had had to undergo considerable harassment. The majority of the staff had actually accepted the bribe. There had been no violence, but that was no reason why the Committee should not take up the violation of this Convention.

Some employees had had the courage to stay with the union, and some had even rejoined it, precisely because they had been given heart both by the reports of the Committee of Experts and by the discussions which had taken place at the Conference. That was why the Committee's observations on the report of the Committee of Experts must record the continued failure of the Government to observe the Convention. The dialogue between the Civil Service Union and the Government recommended by the Committee of Experts continued to be ignored. It was thus very important to place on record the fact that there had been a breach of the Convention and that the breach was still continuing. Whatever happened at the European Commission on Human Rights would presumably be reported to the Committee of Experts, and it might be wise to leave the matter to that Committee, which could then report back to the present Committee in 1988. It was, however, important to establish that the case could not simply fade away.

The Employers' members said that there were serious legal difficulties in drawing a line between Convention No. 87 and Convention No. 151 in the case under consideration. According to Convention No. 151, the Government could lay down the conditions for freedom of association for employees who carried out certain functions of a confidential nature. That could be so in the present case, although the point was in dispute. The report of the Committee of Experts had indicated that in practice some negotiation had taken place and that some degree of agreement had been reached; nevertheless, certain problems were still outstanding and the trade unions wanted to have a final decision. The result of the complaint pending before the European Commission on Human Rights would have some significance for the case. It was an extremely complicated situation, and the Committee of Experts would have to consider it again in the light of further information.

The Workers' members said that they could not agree that further consideration of the case should be postponed until next year. The Committee of Experts had trusted that action would be taken on its suggestion that negotiations should be instituted between the Civil Service Union and the Government with a view to arriving at an agreement so as to ensure full respect for the obligations under the Convention. The present Committee would have to note with regret that no such action had yet been taken by the Government. If the case was held over until next year, the Committee of Experts would have the same remarks to make. It was to be hoped that the Government and the trade unions would consider together how they could satisfy the request made by the Committee of Experts. In any case, a distinction should be made between freedom of association and the right to strike.

The Government representative said that the legal proceedings before the European Commission on Human Rights were expected to be concluded fairly soon. He was confident that his Government would submit a substantive report to the Committee on Freedom of Association at its November session.

The Committee took note of the information and explanations provided by the Government representative. The Committee once again requested the Government to give close consideration to the comments made by the Committee of Experts and to make further efforts to find solutions to the problems encountered in the application of the Convention, in consultation with the social partners. The Committee also requested the Government to respond to the outstanding comments of the TUC and to report on any progress made in that connection.

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

Previous comment

The Committee notes the observations made by the Trades Union Congress (TUC), received on 8 September and 20 October 2023, which principally address the issues raised in its Observation. The Committee notes however that neither the TUC nor the Government address specifically the matters raised in its previous direct request. Given that the issues raised in its Observation would likely have a further impact on the matters set out below, the Committee recalls its previous comment and requests the Government to reply in full in its next report.

Article 3. Return of workers to their posts following lawful industrial action. In its previous comment, the Committee had requested the Government to review the Trade Union Act, 2016, in full consultation with the social partners, to strengthen the protection available to workers undertaking official and lawful industrial action. The Committee notes the TUC’s indication that it was not consulted on the issue despite being the most representative organization. The TUC reiterates its concern that the protection for trade union members who take lawful industrial action only extends to 12 weeks, with no guarantee of reinstatement and no prohibition on hiring replacements. The TUC adds that in July 2022, the Government ended a ban on the supply of workers by employment agencies as temporary or permanent replacements for striking workers, a change which was opposed by the social partners. The Committee notes with regret that the Government reiterates its previous position that the existing measures in place to protect striking workers are sufficient. The Government explains that a balanced legal system cannot ensure that striking workers are not dismissed under any circumstances for taking industrial action, considering that protracted industrial action threatens the existence of businesses and the livelihood of non-striking employees. The Committee once again recalls that making the return-to-work conditional on time limits and on the employer’s consent constitute obstacles to the effective exercise of the right to strike, essential for workers to promote and defend the interests of their members. The Committee therefore urges the Government to review the legislation in question, in full consultation with workers’ and employers’ organizations, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on steps taken in this regard.

Procedural requirements for industrial action. The Committee had previously requested the Government to review, in consultation with the social partners, sections 8 and 9 of the Trade Union Act on timing and duration of industrial action. The Committee notes that according to the TUC, no consultation has taken place in this respect. The TUC reiterates that the law hinders the unions’ ability to take effective industrial action, since unions are required to give seven days’ notice in addition to the notice period before conducting a postal ballot, despite the mandate for industrial action expiring within six months regardless of the outcome of the action. The Committee notes the TUC’s indications regarding the following additional procedural requirements proposed by the minister: that ballot papers specify both the reason for the industrial action and the form of action to be taken; that employers be given the right to respond to the issues cited on the ballot paper before announcing the strike dates; that separate ballots be set up for each single, continuous bout of strike action; that a cooling off period be established after each strike, for up to 60 days; and that the minimum notice period for industrial action be increased from two weeks to four. While noting the Government’s indication that the review will be carried out at some point in the future, in consultation with the social partners, the Committee observes with regret that the Government does not provide any specific timeline for the review. Recalling that workers and their organizations should be able to call a strike for an indefinite period if they so wish, the Committee urges the Government to carry out the review of sections 8 and 9 of the Trade Union Act without further delay in full consultation with the social partners, and to provide information on developments in this regard.

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

Previous comment

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

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

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

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

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

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

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

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

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

Requirement for strike ballot. In its previous comments the Committee had requested the Government to review section 3 of the Trade Union Act, 2016 with the social partners to ensure that the requirement of support by 40 per cent of all workers for strike ballot did not apply to the education and transport sectors. The Committee takes due note of the Government’s indication that it intends to fully engage with UK social partners, unions and employer groups during any review of the Trade Union Act. As regards the centrality of social dialogue referred to by the Committee on the Application of Standards, the Government states that, while there are already regular meetings, at both Ministerial and official level, with trade unions and bodies representing employers, it accepts that there may be some benefit in putting these on a more structured footing and also ensuring that there are more opportunities for genuinely tripartite discussion. The Governments states that it will discuss possible approaches with its social partners over the coming months with a view to updating the Conference Committee next year on how it is responding to the feedback in this area. The Committee trusts that these discussions will give rise to improved consultations with the social partners, including with respect to section 3 of the Trade Union Act. Noting that the education and transport sectors are now restricted both by this section’s requirements and those to be regulated in relation to minimum services, the Committee urges the Government to take the necessary measures without delay to ensure that the support of 40 per cent of all workers is no longer required for a strike ballot in these services.

Blacklisting. In its previous comment, the Committee had requested the Government to provide information on the practice of notifying the police of the identity of activists or blacklisting of individuals engaged in lawful picketing. While noting that the Government reiterates its previous information in this regard, the Committee expresses its concern at the additional allegations of the potential impact of the Strike Act further weakening protection against blacklisting. The Committee once again requests the Government to provide information on the practice of notifying the police of the identity of activists; the details of any complaints regarding the handling of this information or its impact on lawful industrial action or lawful picketing, including any complaints made in this regard, as well as any plans for improving protection.

The role of the Certification officer. The Committee had further requested the Government to review the impact of sections 16-20 of the Trade Union Act with the social partners to ensure that the expansion of the role of the Certification officer does not interfere with the rights of workers’ and employers’ organizations under Article 3 of the Convention. The Committee notes the Government’s indication that it is committed to review the Trade Union Act 2016 and associated secondary legislation and will consider this matter more fully as part of this review. The Committee recalls the TUC’s concerns that the changes to the Certification Officer’s powers implemented in 2022 grant the Certification Officer undue discretion while the threshold for the exercise of the powers is extremely low. In addition, the scope of these powers is uncertain and unduly high financial penalties are allowed to be imposed for statutory breaches. While the TUC informs that the Certification Officer said she had not found any reason to use these new powers over the last year, the TUC maintains that they remain a threat to trade union rights. The Committee therefore once again requests the Government to provide a detailed reply to the TUC observations and provide information on any use by the Certification Officer of its new investigatory powers and financial penalties imposed.

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

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

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

The Committee notes the observations made by the Trade Union Confederation (TUC), received on 31 August 2022, which in addition to the issues examined by the Committee in this comment, outline the allegations of the dismissals or threats of dismissal of workers who were engaged in lawful industrial action and the denial of trade union access by enterprises in the hospitality sector; the lack of clarity regarding the application of minimum service levels in practice; and the inadequacy of the compensatory mechanisms in place for prison workers. The Committee requests the Government to provide its comments thereon.

Article 3 of the Convention. Return of workers to their posts following lawful industrial action. In its previous comment, the Committee had requested the Government to review the Trade Union Act, 2016, in full consultation with the social partners, to strengthen the protection available to workers undertaking official and lawful industrial action. The Committee notes the TUC’s indication that it was not consulted on the issue despite being the most representative organization. The TUC reiterates its concern that the protection for trade union members who take lawful industrial action only extends to 12 weeks, with no guarantee of reinstatement and no prohibition on hiring replacements. The TUC adds that in July 2022, the Government ended a ban on the supply of workers by employment agencies as temporary or permanent replacements for striking workers, a change which was opposed by the social partners. The Committee notes with regret that the Government reiterates its previous position that the existing measures in place to protect striking workers are sufficient. The Government explains that a balanced legal system cannot ensure that striking workers are not dismissed under any circumstances for taking industrial action, considering that protracted industrial action threatens the existence of businesses and the livelihood of non-striking employees. The Committee once again recalls that making the return-to-work conditional on time limits and on the employer’s consent constitute obstacles to the effective exercise of the right to strike, essential for workers to promote and defend the interests of their members. The Committee therefore urges the Government to review the legislation in question, in full consultation with workers’ and employers’ organizations, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on steps taken in this regard.

Procedural requirements for industrial action. The Committee had previously requested the Government to review, in consultation with the social partners, sections 8 and 9 of the Trade Union Act on timing and duration of industrial action. The Committee notes that according to the TUC, no consultation has taken place in this respect. The TUC reiterates that the law hinders the unions’ ability to take effective industrial action, since unions are required to give seven days’ notice in addition to the notice period before conducting a postal ballot, despite the mandate for industrial action expiring within six months regardless of the outcome of the action. The Committee notes the TUC’s indications regarding the following additional procedural requirements proposed by the minister: that ballot papers specify both the reason for the industrial action and the form of action to be taken; that employers be given the right to respond to the issues cited on the ballot paper before announcing the strike dates; that separate ballots be set up for each single, continuous bout of strike action; that a cooling off period be established after each strike, for up to 60 days; and that the minimum notice period for industrial action be increased from two weeks to four. While noting the Government’s indication that the review will be carried out at some point in the future, in consultation with the social partners, the Committee observes with regret that the Government does not provide any specific timeline for the review. Recalling that workers and their organizations should be able to call a strike for an indefinite period if they so wish, the Committee urges the Government to carry out the review of sections 8 and 9 of the Trade Union Act without further delay in full consultation with the social partners, and to provide information on developments in this regard.

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

The Committee notes the observations made by the Trades Union Confederation (TUC), received on 31 August 2022, which refer to the issues examined by the Committee below.

The Committee had previously requested the Government to comment on the allegations relating to police surveillance of trade unions and trade unionists submitted by the TUC in 2018. The Committee notes the Government’s indications that the exercise of covert investigatory powers under the Investigatory Powers Act, 2016 (IPA) and the Regulation of Investigatory Powers Act, 2000 (RIPA) are subject to numerous stringent safeguards and robust independent oversight, and are carried out only if they are necessary for specific statutory grounds, proportionate to the outcome sought, and the information required cannot be reasonably obtained through less intrusive means. The Government points out that it would therefore never be necessary and proportionate to use investigatory powers merely to interfere with legitimate trade union activity. The Government adds that the RIPA grants victims of improper exercise of covert investigatory powers recourse to the Investigatory Powers Tribunal (IPT) for redress. The Government further informs that there is an Investigatory Powers Commissioner who exercises independent oversight over investigatory powers and has the mandate to audit, inspect and report the use of such powers by the authorities. The Committee notesthe Government’s indication that an Undercover Policing Inquiry was established in 2015 to inquire into and report on undercover police operations conducted in England and Wales since 1968 and their effects upon individuals in particular and the public in general. A number of trades unions and trades unions members have been granted core participant status in the Inquiry. The Committee expects that the inquiry will be concluded in the very near future and requests the Government to provide information on any conclusions arrived at in relation to the abovementioned allegations.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes.In its previous comment, the Committee had requested the Government to provide information on the measures taken to facilitate electronic balloting (eballoting) for industrial action ballots. The Committee notes both the TUC’s and the Government’s indications that the review of eballoting conducted in 2017 resulted in certain recommendations, including pilots of eballoting in non-statutory areas as a first step. According to the Government, round table consultations on the recommendations were held both with experts and with trade unions. The Government indicates that details will be provided after the finalization of its consideration of the recommendations. The Committee trusts that this work will be finalized without further delay and that the Government will provide information thereon in its next report.

The Committee had also requested the Government to review section 3 of the Trade Union Act, 2016 with the social partners to ensure that the requirement of support by 40 percent of all workers for strike ballot did not apply to the education and transport sectors. The Committee notes the Government’s indication that the Act, including the ballot thresholds, will be reviewed with the social partners in the future. The TUC indicates that the imposition of the ballot threshold of 40 percent to the two abovementioned sectors imposes a requirement of 80 per cent voting support if only 50 percent of the members vote and poses a significant barrier to union members exercising their right to strike. The Committee urges the Government to review section 3 of the Trade Union Act with the social partners without further delay in order to ensure that the support of 40 percent of all workers is not required for a strike ballot in the education and transport services.

In its previous comment, the Committee had requested the Government to provide information on the practice of notifying the police of the identity of activists; the details of any complaints regarding the handling of this information or its impact on lawful industrial action; and information on the blacklisting of individuals engaged in lawful picketing. The Committee notes the Government’s indication that the Trade Union Act, including provisions on picketing requirements, will be reviewed in the future, and the Government will take into consideration the comments of the Committee. The Government indicates that it does not have any information on the blacklisting of individuals engaged in lawful picketing but adds that claims against blacklisting could be pursued before the Employment Tribunal within three months of the commission of the offence, or longer at the discretion of the Tribunal. The Government adds that the usage of personal data is protected by the Data Protection Act, 2018, with breaches of the Act being investigated by the Information Commissioners Office. The Committee takes note of the TUC allegation that additional restrictions are being planned. The Committee once again requests the Government to provide information on the application of this notification in practice, including any complaints made in relation to the handling of this information or its impact on lawful industrial action, and any information on the blacklisting of individuals engaged in lawful picketing. It also requests the Government to provide information on the additional restrictions planned, if any.

The Committee had further requested the Government to review the impact of sections 16-20 of the Trade Union Act with the social partners to ensure that the expansion of the role of the Certification officer does not interfere with the rights of workers’ and employers’ organizations under Article 3 of the Convention. The Committee notes the Government’s indication that the Certification officer reforms were implemented in April 2022, after engaging with the social partners in June and July 2021, in addition to the 2017 consultations on the levy. The Government indicates that no consultation was needed in relation to the proposed new investigatory powers since these were contained in the Trade Union Act. While noting the Government’s indication that the new legislation would bring the powers of the Certification Officer in line with other regulators and provide confidence both to union members and the wider public, the Committee notes the TUC’s indication that the changes would render trade unions vulnerable to interference by non-members including hostile employers or campaign groups, particularly during legitimate industrial disputes. The TUC adds that the consultation in 2017 was a general consultation inviting input from the general public and not a specific review with the social partners. The Committee notes the TUC’s concerns that the changes obstruct and hinder trade unions in their core functions, since they grant the Certification Officer undue discretion in exercising the powers while the threshold for the exercise of the powers is extremely low and their scope is uncertain. The changes vest in the Certification Officer the power to act upon a third-party complaint, which, according to the TUC, could create a risk of interference in the functioning of trade unions; and to demand documents with sensitive information which are protected by data protection laws. The TUC further indicates that the changes allow unduly high financial penalties to be imposed for statutory breaches, and that there is no ceiling imposed on the newly introduced levy which requires unions to cover the majority of the costs of the Certification Officer. The Committee requests the Government to provide its comments on the TUC observations, as well as detailed information on the reform implemented with regard to the Certification Officer’s new investigatory powers, financial penalties that may be imposed, the amount of any penalties that have been imposed since April 2022, and the ceiling on the levy introduced.

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

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

Article 3 of the Convention. Return of workers to their posts following lawful industrial action. In its previous comments, the Committee had recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action, and requested the Government to provide information on any developments with regard to the review of the legislation in consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action. The Committee notes the Government’s indication that the measures in place afford the necessary protection for workers dismissed for taking part in lawful industrial action. The Government states that trade union members who take lawful industrial action are protected against dismissal for the first 12 weeks and that virtually all industrial action in the United Kingdom lasts for less than 12 weeks. It further indicates that regardless of the duration of the industrial action, an employer cannot dismiss a workers for taking industrial action before having exhausted all available procedures for dispute resolution. It explains that where a person is unfairly dismissed in the United Kingdom, the Employment Tribunal may order reinstatement or re-engagement and where the employer refuses to obey such orders, the Employment Tribunal may award higher compensation to the individuals concerned. The Committee notes the Trades Union Congress (TUC)’s statement that this is a matter of continuing concern and, in particular, that the protection applies for the first 12 weeks of the dispute only and does not guarantee that workers involved in a dispute will be entitled to reinstatement, there being no prohibition on employers hiring permanent replacements. Furthermore, the TUC alleges that no steps have been taken to improve the security of those involved in a lawful strike and that, on the contrary, the position has been worsened by the Trade Union Act 2016, which by introducing new notice obligations, ballot thresholds and time limits significantly narrows further the scope of lawful industrial action, putting the workers at even greater risk of dismissal. The Committee recalls that making the return to work conditional on time limits and on the employer’s consent constitute obstacles to the effective exercise of the right to strike, essential for workers to promote and defend the interests of their members. The Committee therefore once again requests the Government to review the legislation, in full consultation with workers’ and employers’ organizations, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on the steps taken in this regard.

Procedural requirements for industrial action. In its previous comment, the Committee had noted with concern that the expiration of the ballot mandate, coupled with the extensive notice requirements and the current context of a postal ballot, were likely to hinder the capacity of workers’ organizations to exercise their activities free from interference. Accordingly, it had requested the Government to provide information on the progress made to allow electronic balloting and to review the articulation of sections 8 and 9 of the Trade Union Act on timing and duration of industrial action. The Committee notes with concern that the Government does not consider it necessary to carry out a review of sections 8 and 9 of the Act as it is satisfied that the measures in place relating to 14 days’ notice to be given to employers of industrial action are reasonable, proportionate and based on a balanced approach. The Government states that it already extended the notice period from seven to 14 days to give the employer and trade union more time to negotiate a settlement of the dispute, and which may help parties to avoid industrial action. Furthermore, the Government affirms that the notice period of 14 days for industrial action gives time for the employer and public to prepare for a strike, if it proves unavoidable, which will enable some employers to find a way to continue providing their services to the public. With regard to section 9, the Government affirms that the aim of it is to ensure that employers will no longer be subject to strike threats for which the original balloting took place some years before, besides encouraging disputes to be resolved earlier and where possible via dialogue, and not industrial action. The Committee notes that the TUC once again raises its concerns about the 14-day strike notice established by the Act and refers to the conclusions of the European Social Rights Committee which found that the notice requirements are excessive. The Committee recalls that the notice requirement of 14 days for the taking of industrial action is to be added to the seven-day notice requirement for balloting, along with the time for carrying out the ballot, which at present remains a postal ballot. It further recalls TUC’s concerns that the ballot mandate is now declared to come to an end after six months, regardless of whether the dispute has been resolved, and that in order to continue industrial action, the balloting process will have to begin anew. According to the TUC, continuous industrial action would be complicated by the above notice requirements which, in its view, with a postal ballot, could take up to as much as 42 days meaning that the balloting process would have to begin again shortly after its conclusion. The Committee reiterates its position that workers and their organizations should be able to call a strike for an indefinite period if they so wish (see 2012 General Survey on the fundamental Conventions, paragraph 146). The Committee therefore once again asks the Government to review sections 8 and 9 of the Trade Union Act in consultation with the social partners, and to provide information on any developments in this regard.

The Committee had requested the Government to continue its dialogue with the social partners with respect to move from opting-out to opting-in by union members to contribute to political funds, following the modification of section 84 of the Trade Union and Labour Relations (Consolidation) Act 1992 to provide that from 1 March 2018 members cannot contribute to a political fund unless they have opted in, a requirement that is only applied to new union members, as existing members remain on the status of opted-in, unless they choose to opt out of their union’s political fund. The Committee takes due note of the Government’s indication that the modification aims to promote greater transparency and choice for union members. The Committee welcomes the Government’s affirmation that it continues to have regular dialogue with its social partners on matters of policy.

Observation (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, referring to the issues raised by the Committee below. The Committee notes with concern the TUC’s allegation of cases of surveillance of trade unions and trade unionists by the police, to which the Government has not replied, and therefore requests the Government to provide comments in this regard.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comment, the Committee had requested the Government to provide information on the measures taken to facilitate electronic balloting in the context of the new requirements set out in the Trade Union Act 2016. The Committee notes the TUC’s and the Government’s indication that the latter commissioned a review which was published in 2017 and whose main recommendations are: (i) e-balloting for industrial action ballots would only be capable of retaining public confidence if it were seen to be as secure and reliable as the current postal approach, particularly, it would need to be able to meet the required standard set out in section 54 of the Employment Rights Act 2004, that is, to ensure that those entitled to vote have an opportunity to do so; (ii) a test of e-balloting on non-statutory ballots is necessary as preliminary step and that this would potentially be the basis for the Secretary of State to decide the matter; (iii) e-balloting should be introduced for selected non-statutory ballots across England, Scotland and Wales with the aim of evaluating, among other things, the operation and effectiveness of voter verification; and (iv) the providers of any systems used to trial e-balloting must be able to demonstrate that they are able to withstand cyber-attack/hacking from those who wish to cause disruption. While noting the TUC’s allegation that to date the Government has not published a response to these recommendations, the Committee notes the Government’s indication that before responding to the recommendations it must, according to section 4(4) of the Trade Union Act, consult relevant organizations, including professionals from expert associations to seek their advice and recommendations. The Government is currently assessing the best means of obtaining this advice which will enable it to take properly informed and transparent decision about the risks associated with electronic balloting, and therefore whether such a system should be rolled out. The Committee requests the Government to provide updated and detailed information on the developments in this regard.

The Committee had previously requested the Government to review section 3 of the Trade Union Act with the social partners concerned and to take the necessary measures so that the requirement of support of 40 per cent of all workers for a strike ballot in important public services does not apply to education and transport services. The Committee notes that the TUC is concerned about the 40 per cent support threshold in the other four sectors to which it applies. The Committee recalls that it had previously observed that a number of the services set out in section 3 fall within the Committee’s understanding of essential services in the strict sense of the term or provided by public servants exercising authority in the name of the State, in which restrictions on industrial action are permissible. The Committee had noted, however, that a restriction on education services in particular would touch upon the entire primary and secondary education sector, and a restriction on all transport services would have a similarly sweeping and overbroad effect, and the Committee considers that such restriction is likely to severely impede the right of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference. The Committee further notes the TUC’s indication that the Government have made no serious attempt to amend section 3 of the Act. The Committee notes with regret that the Government reiterates its previous position on the need to maintain the 40 per cent threshold in education and transport services. The Government indicates that as the Trade Union Act balloting did not come into effect until 1 March 2017, it is, in any case, far too early for the Government to consider any amendments in this respect. The Committee recalls from its previous comments that a requirement of support of 40 per cent of all workers effectively means a requirement of 80 per cent voting support where only the 50 per cent participation quorum has been met. The Committee once again requests the Government to review section 3 of the Trade Union Act with the social partners concerned and take the necessary measures so that the requirement of support of 40 per cent of all workers for a strike ballot does not apply to education and transport services.

In its previous comment, the Committee had noted the TUC’s observations that the additional conditions for lawful picketing raise a number of concerns: the requirement to notify the police of the identity and contact details of activists may expose individuals to blacklisting; the union is automatically liable for any failure; and these requirements are discriminatory as they only affect pickets organized by trade unions but not those organized by other groups. Accordingly, it had requested the Government and the TUC to provide information on the impact of the application of this notification in practice, including any complaints that may have been made in relation to the handling of this information or its impact on lawful industrial action, and any information regarding the blacklisting of individuals engaged in lawful picketing. The Committee notes the Government’s indication that where a picket supervisor’s contact details are passed to the police, safeguards are in place in the way the information is handled and that the confidentiality of personal details is protected by the Human Rights Act 1998 and Data Protection 2018, which are in conformity with the European Convention on Human Rights. Furthermore, the Government affirms that complaints regarding data handling can be brought to the Independent Police Complaints’ Commission, if the data was mishandled by the police, or to the Information Commissioner, who deals with complaints specific to data protection matters. Taking due note of this information, the Committee once again requests the Government to provide information on the application of this notification in practice, including any complaints that may have been made in relation to the handling of this information or its impact on lawful industrial action, and any information on the blacklisting of individuals engaged in lawful picketing.

In its previous comment, the Committee had expressed its concern that the Trade Union Act appear to significantly expand the investigatory and enforcement powers of the Certification Officer, including in cases where no application has been made and had invited the Government to review the impact of the expanded role of the Certification Officer in sections 16–20 of the Act with the social partners concerned, with a view to ensuring that workers’ and employers’ organizations can effectively exercise their rights to organize their administration and activities and formulate their programmes without interference from the public authorities. The Committee notes the Government’s reiteration that none of the Certification Officer reforms affects the workers’ freedom of association and their right to organize, to establish and to join a trade union, rather they enhance transparency for the benefit of union members and the wider public. The Committee notes, however, the TUC’s allegation that no steps have been taken to respond to the Committees’ invitation to review the powers of the Certification Officer with the social partners. The Committee invites once again the Government to review the impact of sections 16–20 of the Trade Union Act with the social partners concerned with a view to ensuring that workers’ and employers’ organizations can effectively exercise their rights to organize their administration and activities and formulate their programmes without interference from the public authorities. It requests the Government to provide information on the outcome of the consultations.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 3 of the Convention. Return of workers to their posts following lawful industrial action. In its previous comments, the Committee recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action, and requested the Government to review the legislation, in full consultation with the workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action. The Committee further notes the Government’s statement to the Conference Committee on the Application of Standards in relation to a proposal to repeal the ban on hiring agency workers during strike action that it was still considering its response. The Committee once again requests the Government to inform of developments in this respect and as regards any measures to strengthen the protection available to workers to return to their posts after the end of industrial action.

Procedural requirements for industrial action. In its previous comments, the Committee noted the concerns raised by the Trades Union Congress (TUC) in relation to additional notice requirements set out in the Trade Union Bill (section 7) and requested the Government to provide its comments thereon. The Committee notes that the TUC once again raises its concerns about the 14 day strike notice established by the Act and refers to the conclusions of the European Social Rights Committee over several years that the notice requirements are excessive. The Committee notes that the notice requirement of 14-days for the taking of industrial action is to be added to the seven day notice requirement for balloting, along with the time for carrying out the ballot, which at present remains a postal ballot. The Committee notes the Government’s indication that it does not accept that these requirements are excessive and does not agree with the expansive interpretation given by the European Committee on Social Rights.

The Committee further notes the TUC concerns that the ballot mandate is now declared to come to an end after six months, regardless of whether the dispute has been resolved, and that in order to continue industrial action, the balloting process will have to begin anew. According to the TUC, continuous industrial action would be complicated by the above notice requirements which, in its view, with a postal ballot, could take up to as much as 42 days meaning that the balloting process would have to begin again shortly after its conclusion. The Committee recalls in this regard its position set out in its 1994 General Survey on Freedom of Association and Collective Bargaining that workers and their organizations should be able to call a strike for an indefinite period if they so wish (General Survey on freedom of association and collective bargaining, 1994, paragraph 146). The Committee expresses its concern that the expiration of the ballot mandate, coupled with the extensive notice requirements and the current context of a postal ballot, are likely to hinder the capacity of workers’ organizations to exercise their activities free from interference. The Committee requests the Government to provide information on the progress made to allow electronic balloting and to review the articulation of sections 8 and 9 of the Act in the light of the above concerns.

As regards the new reporting requirements for political expenditure, the Committee notes the TUC concerns that unions are now being supervised by two State agencies, where there is no corresponding duty on companies or other civil society actors. The Government, for its part, explains that the provisions in the Act provide greater transparency for union members on which party or person is benefiting from the fund, thus enabling them to make informed decisions on their participation therein. The TUC considers that the transparency justification is not legitimate as donors must already report to the Electoral Commission, ensuring transparency for the public, and the new requirements in the Act are not limited to making the information available to trade union members.

As regards the move from opting-out to opting-in with respect to contributions to political funds, the Committee notes the information provided by the TUC recalling that there were already a certain number of protective requirements relating to the political funds of trade unions, including the requirement that members be balloted (via the post) every ten years for authority to continue to promote political objects. The Committee notes the Government’s indication that the Act was modified to place the opt-in requirement only on new members and that political funds before the end of the transition period (at least 12 months from the entry into force of the Act) will not be affected by the new provisions. The Committee further observes the concerns raised by the TUC that members can still opt out at any time and that the unions must annually notify members of their right so to do. The Committee notes that this matter has been the subject of historical considerations and consultation for over a century, forming an important basis of industrial relations in the country, and requests the Government to continue its dialogue with the social partners in this regard.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee takes note of the observations of the Trades Union Congress (TUC) received on 1 September 2016 and the Government’s comments thereon, as well as the TUC’s further observations of 26 October 2016. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 concerning the application of the Convention. The Committee observes that the Conference Committee noted the Government’s indication that secondary legislation was still under discussion in relation to the matters raised and noted with interest the Government’s comments regarding the engagement of the social partners in this ongoing process. It further notes that the Conference Committee requested the Government to respect the rights of workers’ and employers’ organizations to establish and join organizations of their own choosing without previous authorization and to define the power of the certification authority in such a way that it would not be in contradiction with the provisions of the Convention.

The Committee notes generally from the Government’s statement to the Conference Committee and its report that it is confident that the provisions of the newly enacted Trade Union Act were justified and proportionate, and fully comply with its international obligations on trade union rights. The Act aimed to balance the rights of people who take industrial action with those who are affected by that action, and will modernize industrial relations, while promoting a more effective, collaborative approach to resolving industrial disputes.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls its previous comments in which it requested the Government to review the Trade Union Bill with the social partners concerned with a view to its modification so as to ensure that the heightened requirement of support of 40 per cent of all workers for a strike ballot in important public services (section 3 of the Bill), does not apply to education and transport services. The Committee notes that the TUC raises this point again and also states that it considers that the Committee’s views on a 50 per cent quorum are not fairly applied. On this latter point, the Committee does not share the assessment that has been made by the TUC concerning a country’s legislation which also referred to a 50 per cent quorum. Moreover, the Committee considers it important to point out that there is no hard and fast rule relating to the fixing of a reasonable quorum. It recalls in this respect its views in its 1994 General Survey that the conditions established in the legislation of different countries relating to strike ballots vary considerably and their compatibility with the Convention may also depend on factual elements such as the scattering or geographical isolation of work centres or the structure of collective bargaining (by enterprise or industry), all of which require an examination on a case-by-case basis (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 170.)

The Committee further notes the concerns raised by the TUC that the quorum established by the Trade Union Act operates in the context of outmoded balloting methods, which tend to diminish participation levels. The Committee notes the observations by the Government that the Trade Union Act requires it to commission a review of electronic balloting within six months of Royal Assent and that the chair of this review was announced on 3 November 2016. The Committee trusts that the review will yield results in the near future and requests the Government to provide information on the progress made and the measures taken to facilitate electronic balloting in the context of the new requirements set out in the Trade Union Act.

On the 40 per cent requirement, the Committee notes the Government’s statement to the Conference Committee that, in view of the widespread adverse consequences of industrial action in public services, this requirement was important to ensuring necessary democratic legitimacy and clear majority support in services extremely significant to the public. The Committee recalls from its previous comments, however, that a requirement of support of 40 per cent of all workers effectively means a requirement of 80 per cent voting support where only the 50 per cent participation quorum has been met. In light of the concerns expressed above in relation to the challenges attached to the current balloting method and with a view to ensuring the rights of workers’ organizations to organize their activities in full freedom, the Committee once again requests the Government to review section 3 of the Trade Union Act with the social partners concerned and take the necessary measures so that the heightened requirement of support of 40 per cent of all workers for a strike ballot does not apply to education and transport services.

As regards picketing, the Committee notes the TUC’s observations that the additional conditions for lawful picketing raise a number of concerns: the requirement to notify the police of the identity and contact details of activists may expose individuals to blacklisting; the union is automatically liable for any failure; and these requirements are discriminatory as they only affect pickets organized by trade unions but not those organized by other groups. The Committee notes the Government’s comments that it recognizes peaceful picketing as a legitimate and lawful activity; however, there is worrisome evidence of intimidation during picketing. The Government assures, however, that the police is bound by the Human Rights Act and Data Protection Act when handling picket supervisors’ contact details. The Committee requests the Government and the TUC to provide information on the impact of the application of this notification requirement in practice, including any complaints that may be made in relation to the handling of this information or its impact on lawful industrial action, and any information regarding the blacklisting of individuals engaged in lawful picketing.

As regards the expanded role of the Certification Officer in sections 16–20 of the Trade Union Act, the Committee notes that the TUC raises concerns that: there is no guarantee that the Certification Officer will be genuinely independent; the Certification Officers’ new powers will expose unions to the risk of constant harassment; the new responsibilities of investigation, adjudication and enforcement violate basic legal principles; and the introduction of a levy towards the cost of the Certification Officer. The Committee further notes the Government’s indication that the powers granted to the Certification Officer in the Act are comparable to those of many other regulators, many of which are also funded by a levy on the organizations that they regulate. The Government considers that this regulation is proportionate and entirely consistent with the Convention. Finally, the Government adds that the Certification Officer has always carried out her or his functions independently and will continue to so do, as provided in section 16 of the Act. The Government adds that, with the exception of the investigative powers in relation to a union’s financial affairs and membership records, the Certification Officer does not have any general authority to investigate the internal affairs of trade unions, except where a complaint from a trade union member has been made in relation to breaches of certain trade union rules or statutory obligations. Among others, the Act updated the investigatory powers of the Certification Officer in relation to political funds, union mergers and internal leadership elections and introduced a new financial penalty scheme. The precise amounts that may be imposed will be set by regulations upon which the Government would be consulting the unions and which would be subject to further parliamentary scrutiny. This is also the case with respect to the partial levy to fund the costs of the Certification Officer, while the Government will still fund some of the running costs. Finally, the Government indicates that the Act ensures that these new powers are used proportionately and appropriately, unions have the opportunity to make representations before any decision is made and there will continue to be a right of appeal. The Committee expresses its concern that the Act does appear to significantly expand the investigatory and enforcement powers of the Certification Officer, including in cases where no application has been made. The Committee invites the Government to review the impact of these provisions with the social partners concerned with a view to ensuring that workers’ and employers’ organizations can effectively exercise their rights to organize their administration and activities and formulate their programmes without interference from the public authorities.

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

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 3 of the Convention. Return of workers to their posts following lawful industrial action. In its previous comments, the Committee recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action, and requested the Government to review the legislation, in full consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action. With reference to its observation, the Committee notes the additional concerns raised by the Trade Union Congress (TUC) in this regard in relation to the recent proposals to permit striker replacements, which it fears could enable employers to indefinitely prolong disputes and undercut striking workers. The Committee once again requests the Government to review this matter with the social partners concerned in light of the recent proposals, with a view to strengthening the protection available to workers, and to provide information on the steps taken in this regard.

Notice requirements for industrial action. In its previous comments, the Committee, while noting the observations of the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome, had further noted with interest a series of court judgments provided by the Government that appeared to bring clarity to these concerns. The Committee notes that the TUC in its latest observations raises concerns about additional notice requirements set out in the Trade Union Bill (section 7) and requests the Government to provide its comments thereon.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee takes note of the comments of the Government on the 2013 observations of the Public Service Union (Unison) and Unite the Union. It further notes the observations of the Trades Union Congress (TUC) received on 1 September and 25 November 2015 which raises concerns about a number of legislative proposals presented by the Government in July 2015 and requests the Government to provide its comments thereon. The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls its previous comments in which it requested the Government to carry out a review with the social partners of the issues raised by various workers’ organizations in the country relating to the exercise and regulations of industrial action. The Committee observes that while an independent review was undertaken to look at the limited questions of alleged use of extreme tactics in industrial disputes and the effectiveness of the existing legal framework for preventing inappropriate or intimidatory actions in such disputes, the review was not charged to examine the various matters that had been raised by the workers’ organizations in the country over recent years. The Carr Report resulting from the above limited review was published in October 2014 and served as a basis for certain proposed reforms set out in the Trade Union Bill presented in Parliament on 15 July 2015.

The Committee observes that the TUC raises a number of concerns in relation to the new government proposals, which it considers would infringe on the right of workers’ organizations to carry out their activities without interference. The TUC refers in particular to new proposed ballot requirements for industrial action and additional procedural burdens, restrictions on picketing and increased supervisory powers, procedural requirements for the use of social media, the use of agency workers to replace strikers, restrictions on union political freedoms and greater overall control of trade unions through enhanced powers of the certification authority.

The Committee notes that, following the introduction of these proposals, the Government carried out a broad-based consultation related to controversial proposals for further requirements related to picketing. The Committee welcomes the Government’s decision not to pursue certain of those proposals, including the proposals related to two weeks advance social media notification and annual reporting on industrial action. The November 2015 government response to the consultation on tackling intimidation of non-striking workers thus proposes to modify the Bill to clarify the limited extent of the scope of the picketing provision (section 9) and focus rather on strengthening the Code of Practice on Picketing to set out the rights and responsibilities of the parties clearly and to work with the police, the Advisory, Conciliation and Arbitration Service (ACAS) and other stakeholders to ensure that guidance fully reflects the practical steps necessary to ensure that picketing remains peaceful.

As regards the ballot requirements raised by the TUC, the Committee observes that two sets of additional requirements related to strike ballots are being proposed. Section 2 of the Bill introduces a new requirement of a 50 per cent participation quorum to be reached in strike ballots. In this regard, the Committee recalls in its 2012 General Survey on the fundamental Conventions, paragraph 147 that, while it has always stated that a quorum should be fixed at a reasonable level, it has consistently considered that a quorum of 50 per cent is indeed within such limits of reasonableness. The second requirement referred to by the TUC concerns the heightened conditions in important public services of support by 40 per cent of all workers (section 3 of the Bill), which effectively means a requirement of 80 per cent support where only the 50 per cent participation quorum has been met. The Committee notes that the following categories have been identified as important public services: health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. While the Committee generally considers that a requirement of the support of 40 per cent of all workers to carry out a strike would constitute an obstacle to the right of workers’ organizations to carry out their activities without interference, it further observes that a number of the services set out in section 3 fall within the Committee’s understanding of essential services in the strict sense of the term or of public servants exercising authority in the name of the State, in which restrictions on industrial action are permissible. The Committee does however express concern that this restriction would also touch upon the entire primary and secondary education sector, as well as all transport services, and considers that such a restriction is likely to severely impede the right of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference. The Committee recalls in this regard that recourse might be had to negotiated minimum services for these sectors, as appropriate. The Committee requests the Government to review this matter with the social partners concerned with a view to modifying the Bill so as to ensure that the heightened requirement of support of 40 per cent of all workers does not apply to education and transport services.

The Committee further notes the TUC concerns that these changes come within a cumulated context of heavy procedural requirements for balloting, including the fact that balloting must be by postal voting only and that secret workplace voting and electronic voting are not allowed. The Committee further observes that Unison had raised similar concerns and that in one case referred to it, the employer challenged the confidentiality of postal voting. The Committee invites the Government to review the ballot method with the social partners concerned with a view to its possible modernization while bearing in mind the rights and interests of all parties concerned.

The Committee further observes the concerns raised by the TUC in relation to the proposal to revoke the regulation in the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which prohibited the provision of agency workers to replace strikers. The Committee requests the Government to review this proposal with the social partners concerned bearing in mind its general consideration that the use of striker replacements should be limited to industrial action in essential services.

Finally, the Committee requests the Government to provide its comments on the other matters raised by the TUC, and in particular as regards: (i) the proposal to abolish dues check-off across all public sector organizations; (ii) the proposal for an opting-in clause (as opposed to an opting-out), with a limited time validity, for union member contributions to political funds accompanied by detailed reporting obligations; (iii) the remaining provisions on picketing; and (iv) the proposal to increase powers of the certification authority.

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

[The Government is asked to reply in detail to the present comments in 2016.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments made by Unite the Union in communications dated 2 August and 11 October 2013 and by the Public Service Union (Unison) in a communication dated 13 June 2013 on the application of the Convention. The Committee further notes the Government’s observations thereon in a communication dated 13 November 2013.

The Committee will examine the matters raised in these communications at its November–December 2014 session and invites the Government to provide a detailed report for next year.

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

Article 3 of the Convention. Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the employer’s consent constituted, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes an essential means for workers to promote and defend the interests of their members. The Committee therefore requested the Government to indicate any measures taken or contemplated with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action. The Committee notes the Government’s indication that it does not consider that the protection against dismissal of employees taking official action sets an arbitrary limit. The Government states that it is important to consider the interaction between the strands of the existing protections. For 12 weeks, dismissal for official and lawfully organized industrial action is automatically unfair. In tandem, no matter what time period has passed, an employer cannot fairly dismiss a worker for taking industrial action if the employer has failed to take reasonable steps to resolve the dispute with the trade union. Finally, all such employees will benefit from wider unfair dismissal protection which means that they can refer their dismissal to an employment tribunal which could order their reinstatement or award them financial compensation. The Government believes that the interaction between these provisions means that it is in conformity with the provisions of the Convention and it remains of the view that it is not appropriate to prevent an employer dismissing an employee under any circumstances when they take industrial action. The Committee once again requests the Government to review the legislation, in full consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on the steps taken in this regard.

Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government’s indication that the Court of Appeal decision in RMT v. Serco and in Aslef v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC’s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC.

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

Workers’ and employers’ organizations comments. The Committee takes note of the observations of the Government on the communication of the International Trade Union Confederation (ITUC) dated 24 August 2010 as well as of the detailed comments and information provided by the Trades Union Congress (TUC) in a communication dated 30 August 2012 which raises new issues related to recent case law, as well as a number of issues on the application of the Convention in law and in practice that have been the subject of the Committee’s comments for many years now. The Committee also notes the comments of the ITUC dated 4 August 2011. The Committee requests the Government to reply to these comments in its next report.

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee’s previous comments concerned the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, particularly as regards the exclusion or expulsion of individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. Following the judgment of the European Court of Human Rights (ECHR) reached in the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007), section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) was amended. The Government considered that this amendment significantly extended the scope for trade unions to exclude and expel individuals on the grounds of their political party membership.

The Committee also noted the detailed comments made by the TUC setting out certain reservations in respect of the amendment both as regards what it saw as a degree of legal uncertainty around its meaning and the perception of excessive complexity in the new legislation. The Committee took due note of the detailed observations made by the Government in its previous report in reply to these concerns. The Government stated that it had attempted to balance competing human rights about freedom of belief and freedom of association in its drafting of these amendments. It therefore included safeguards concerning the essential elements of natural justice, due process and transparency which aim to ensure that: (a) membership of the political party concerned is contrary to a rule or objective of the union; (b) the union has taken the decision to exclude or expel in accordance with its rules; and (c) the union has followed fair procedures when taking that decision, and the individual does not lose his or her livelihood or suffer other exceptional hardship for loss of union membership. As regards this last point, the Government indicated that, since “closed shop” is already unlawful in the country, a loss of union membership is very unlikely to produce hardship on this scale. As regards the TUC allegation that the complexity would lead to unjustified and vexatious litigation, the Government stated that there is no evidence to support that such mischievous litigation has been indulged in since the amendments came into force in April 2009. The Government added in this respect that a compensatory award for unlawful exclusion would only apply where the trade union refused to admit or re-admit the individual and where membership of the political party is not contrary to a rule or objective of the trade union, whereas in the Government’s understanding, the rules or objectives of British trade unions often specify that membership of certain political parties, or xenophobic or racist behaviours associated with such parties, are incompatible with union membership. The Government concluded that these amendments do not breach the Convention and are necessary in a democratic society for the protection of the rights and freedom of others. The Committee asked the Government to reply to the further concerns of the TUC. In this regard, the Government indicates that: (1) it was aware of the points raised by the TUC when it introduced its amendments to section 174; and (2) it considers that the provision is consistent with Convention No. 87 and it is satisfied that it does not represent an undue interference in the internal regulation of union affairs. The Committee notes that the Government reiterates the point made in its reports for 2006–08 and 2008–10 that these issues are complex and the law must respect all the competing rights involved. The Committee notes that the TUC reiterates the arguments that it had presented in its previous communication. The Committee expects the Government and the TUC to provide any available information on the practical application of the amendments to section 174 of the TULRA.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 2006–08, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner so as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations.

The Committee further recalls that it has been raising the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice and considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for this fundamental right. It further raised this issue when reviewing the comments made by the British Airline Pilots’ Association (BALPA), the International Transport Federation (ITF) and Unite the Union. The Committee notes the Government’s indication in its latest report that the TULRA provides a limit on the damages which trade unions can face when inducing workers to take unlawful industrial action. The Government considers that although the European Court of Justice (ECJ) has ruled on the position where EU legislation interacts with EU Member State domestic legislation, and although this has direct effect on the UK, there is no case law as yet to test whether the involvement of EU rights disapplies the limits in TULRA. The Government further indicates that as a result of concerns expressed about the Viking and Laval case law, the European Commission has published a draft Council Regulation “Monti II” that was being negotiated in the Council and the European Parliament. The Committee notes that the Government was awaiting the outcome of that process. It notes that withdrawal procedures on the proposed Monti II regulation started on 12 September 2012.

The Committee considers that a full review of the issues at hand with the social partners to determine possible action to address the concerns raised would provide this fundamental right the important attention it deserves at national level and requests the Government to provide information in its next report on the outcome of the discussions.

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

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

Article 3 of the Convention. The Committee’s previous direct request concerned comments made by the Trades Union Congress (TUC) to the effect that union representatives do not enjoy a general right of access to workplaces and, in particular, that a trade union has no right of access to speak to a worker it may be accompanying in a disciplinary or grievance hearing, and indeed the employer can deny the union the right of access to the workplace even in these circumstances.

In its previous comments, the Committee noted the information provided by the Government that: work was under way on revising the code of practice on time off for trade union duties and activities issued by the Advisory, Conciliation and Arbitration Service (Acas); and it was true that full-time trade union officials enjoyed few legal rights to enter the premises of employers, such matters usually being determined by agreement between an employer and a trade union. The Committee takes due note of the indication in the Government’s latest report that the Acas Code of Practice on Time Off for Trade Union Activities and Duties provides practical guidance on these rights and a revised version of the Code came into effect on 1 January 2010. In addition, prior access is encouraged by Acas-issued guidance on disciplinary measures and grievances at work. The Committee requests the Government to continue providing information in relation to workplace access in its future reports.

In its previous comments, the Committee noted the TUC’s indication that, under section 223 of the Trade Union and Labour Relations Act (TULRA), disputes designed to secure the reinstatement of workers who have been dismissed for taking part in an unofficial strike are unprotected, and that this lack of protection applies regardless of the cause of the unofficial action. The Committee notes the Government’s indication in its latest report that it considers it important to ensure that unofficial industrial action does not cause widespread economic disruption and therefore there are no plans to amend this section. The Committee reiterates that lawfully organized industrial action in support of workers dismissed for undertaking unofficial strike action should be considered as legitimate action for which the maintenance of the employment relationship is protected. The Committee therefore requests the Government to provide information on any measures taken or contemplated to amend section 223 of the TULRA with a view to ensuring the protection of official industrial action organized in conformity with the law, even if it is aimed at securing the reinstatement of workers dismissed for taking part in an unprotected strike.

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

The Committee takes note of the Government’s report. It further notes the detailed comments and information provided by the Trades Union Congress (TUC) in a communication dated 28 October 2010, which raised a number of issues on the application of the Convention in law and in practice that have been the subject of the Committee’s comments for many years now. The Committee requests the Government to reply to these comments in its next report.

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee’s previous comments concerned the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, particularly as regards the exclusion or expulsion of individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. Following the judgment of the European Court of Human Rights (ECHR) reached in the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007), which found that section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) violated Article 11 of the European Convention on Human Rights on freedom of association in that it did not strike a proper balance between the rights of individual members and those of the trade union, the Government had informed the Committee that relevant amendments contained in an Employment Bill were then before the Parliament.

The Committee had also noted the detailed comments made by the TUC which set out certain reservations in respect of the proposed amendment both as regards what it saw as a degree of legal uncertainty around its meaning and the perception of excessive complexity in the new legislation. The Committee takes due note of the detailed observations made by the Government in its latest report in reply to these concerns. In particular, the Government informs that section 19 of the Employment Act of 2008 has now amended section 174 of the 1992 Act and significantly extends the scope for trade unions to exclude and expel individuals on the grounds of their political party membership. The Government states that it attempted to balance competing human rights about freedom of belief and freedom of association in its drafting of these amendments. It therefore included safeguards concerning the essential elements of natural justice, due process and transparency which aim to ensure that: (a) membership of the political party concerned is contrary to a rule or objective of the union; (b) the union has taken the decision to exclude or expel in accordance with its rules; and (c) the union has followed fair procedures when taking that decision, and the individual does not lose his livelihood or suffer other exceptional hardship for loss of union membership. As regards this last point, the Government indicates that, since “closed shop” is already unlawful in the country, a loss of union membership is very unlikely to produce hardship on this scale. As regards the TUC allegation that the complexity would lead to unjustified and vexatious litigation, the Government states that there is no evidence to support that such mischievous litigation has been indulged in since the amendments came into force in April 2009. The Government adds in this respect that a compensatory award for unlawful exclusion would only apply where the trade union refused to admit or re-admit the individual and where membership of the political party is not contrary to a rule or objective of the trade union, whereas in the Government’s understanding, the rules or objectives of British trade unions often specify that membership of certain political parties, or xenophobic or racist behaviours associated with such parties, are incompatible with union membership. The Government concludes that these amendments do not breach the Convention and are necessary in a democratic society for the protection of the rights and freedom of others.

The Committee requests the Government to reply to the further concerns expressed by the TUC in its latest comments and to provide any available information on the practical application of the amendments to section 174 of the TULRA.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government’s reiteration that it has no plans to change the law in this area. The Committee emphasizes that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. The Committee therefore recalls that workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to social and economic matters which affect them and requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the progress made in ensuring respect for this principle.

The Committee further recalls that, when reviewing the comments made by the British Airline Pilots’ Association (BALPA), the International Transport Federation (ITF) and Unite the Union, the Committee had observed with serious concern the practical limitations on the effective exercise of the right to strike of the BALPA workers in the case at hand. The Committee observed that the omnipresent threat of an action for damages that could bankrupt the union, possible in the light of the Viking and Laval judgments issued by the European Court of Justice (ECJ), created a situation where the rights under the Convention could not be exercised. While noting the Government’s statement that the impact of the ECJ judgments was limited, the Committee referred to the likelihood of such issues becoming more frequent within the current context of globalization, particularly in certain sectors of employment, like the airline sector and considered that the doctrine being articulated in these ECJ judgments was likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention.

In its latest report, the Government points out that, even if there were an international dimension to a United Kingdom trade dispute, it was far from clear that the industrial action involved would fail to meet the legitimacy and proportionality requirements laid down in the ECJ case law. In any event, the Government indicated that in so far as the proportionality tests might apply to United Kingdom industrial action, these tests were derived from EU treaties, to which the Government is obliged to give effect. The Government therefore considers that amendment of the TULRA would not have any impact on the proportionality tests set out in these judgments. As regards the threat of unlimited damages, the Government observes that it has not been proven that these ECJ judgments would have the effect of nullifying the limits on damages for unlawful industrial action that are set out in the TULRA, but even if they did, the Government maintains that it could not change this impact through any unilateral action on its part. The Government concludes that the effect of the ECJ judgments on United Kingdom industrial action has not been established as no United Kingdom court has decided a case in this area and, in any event, any effect would probably be limited to the small minority of disputes which have the necessary international dimension. For these reasons, the Government considers that it is not necessary to review the TULRA or take other national measures.

The Committee wishes once again to recall the serious concern it raised as to the circumstances surrounding the BALPA proposed industrial action, for which the courts granted an injunction on the basis of the Viking and Laval case law and where the company indicated that, should the work stoppage take place, it would claim damages estimated at £100 million per day. The Committee recalls in this regard that it has been raising the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice and considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for this fundamental right, which is an intrinsic corollary of the right to organize. While taking due note of the Government’s observations in relation to its obligations under EU law, the Committee considers that protection of industrial action in the country within the context of the unknown impact of the ECJ judgments referred to by the Government (which gave rise to significant legal uncertainty in the BALPA case), could indeed be bolstered by ensuring effective limitations on actions for damages so that unions are not faced with threats of bankruptcy for carrying out legitimate industrial action. The Committee further considers that a full review of the issues at hand with the social partners to determine possible action to address the concerns raised would assist in demonstrating the importance attached to ensuring respect for this fundamental right. The Committee therefore once again requests the Government to review the TULRA, in full consultation with the workers’ and employers’ organizations concerned, with a view to ensuring that the protection of the right of workers to exercise legitimate industrial action in practice is fully effective, and to indicate any further measures taken in this regard.

Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee recalled that for the right to strike to be effectively guaranteed, the workers who stage a lawful strike should be able to return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the employer’s consent constituted, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes an essential means for workers to promote and defend the interests of their members. The Committee therefore requested the Government to indicate any measures taken or contemplated with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action.

The Committee notes that the Government reiterates that those participating in lawfully organized, official industrial action are protected against dismissal for action which lasts 12 weeks or less. Dismissing a worker for taking industrial action during this period is considered to be automatically unfair. Virtually all industrial action in the United Kingdom lasts less than 12 weeks and therefore this protection extends to virtually all workers who stage official and lawfully organized strikes. In addition, regardless of the duration of the industrial action, an employer cannot dismiss a worker for taking industrial action if the employer has failed to take reasonable procedural steps to resolve the dispute with the trade union (i.e. agreed procedures for dispute resolution). The Government however maintains that it is not appropriate to support the view that an employer must never dismiss employees under any circumstances when they take protected industrial action. In any event, the sacking of strikers is very rare in the United Kingdom.

The Committee recalls the importance it attaches to the maintenance of the employment relationship as a normal legal consequence of the recognition of the right to strike (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 139). While provisions that enable employers to dismiss workers during or at the conclusion of an industrial action on the grounds of illegitimate or unlawful action may be in conformity with the provisions of the Convention, it considers that restricting the right to maintain the employment relationship to industrial action of twelve weeks or less places an arbitrary limit on the effective protection of the right to strike in a manner contrary to the Convention. The Committee therefore once again requests the Government to review the TULRA, in full consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on the steps taken in this regard.

Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes from the Government’s report that it held discussions with the TUC about these issues during the reporting period, but that no agreement was reached. The Committee requests the Government to continue to provide information on developments in this regard, as well as any relevant statistics or reports on the practical application and effect of these requirements.

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

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the British Airline Pilots’ Association (BALPA) dated 22 October 2008, supported by the International Transport Federation (ITF) and Unite the Union, and the Government’s reply thereto. The Committee notes in particular that BALPA refers to two recent decisions of the European Court of Justice (ECJ), International Transport Workers’ Federation and the Finnish Seaman’s Union v. Viking Line ABP (Viking) and Laval un Partneri v. Svenska Byggnadsarbetareförbundet (Laval) which held that the right to strike was subject to restrictions under the European Union law where its effect may disproportionately impede an employer’s freedom of establishment or freedom to provide services. BALPA asserts that these judgements have negatively impacted upon their rights under the Convention.

In particular, BALPA explains that it decided to go on strike, following a decision by its employer, British Airways (BA), to set up a subsidiary company in other EU States. While efforts were made to negotiate this matter, in particular the impact that the decision would have upon their terms and conditions of employment, all attempts were unsuccessful and BALPA members overwhelmingly voted to go on strike. The strike action was, however, effectively hindered by BA’s decision to request an injunction, based upon the argument that the action would be illegal under Viking and Laval. In addition, BA claimed that, should the work stoppage take place, it would claim damages estimated at £100 million per day. Under these circumstances, BALPA did not follow through with the strike, stating that it would risk bankruptcy if it were required to pay the damages claimed by BA. BALPA expresses its deep concern that the application of Viking and Laval by the UK courts will result in injunctions against industrial action (and dismissal of workers) if a strike’s impact on the employer is judicially determined to outweigh the benefit to workers.

The Committee notes the Government’s indication in its reply that BALPA’s application is misdirected and misconceived because any adverse impact of Viking and Laval would be a consequence of the European Union law, to which the United Kingdom is obliged to give effect, rather than of any unilateral action by the United Kingdom itself. The Government further asserts that BALPA’s application is premature because it remains unclear what, if any, impact the Viking and Laval judgements would have on the application of trade union legislation in the United Kingdom. The Government adds that these judgements would not likely have much effect on trade union rights because they are only applicable where the freedom of establishment and free movement of services between Member States are at issue. Moreover, the impact of the principles they set forth may differ considerably depending upon the facts of the case. There have been no subsequent analogous cases at the ECJ level, nor have there been any decisions by the UK domestic courts as to whether and to what extent the new principles might represent an additional restriction on the freedom of trade unions to organize industrial action in the United Kingdom. Finally, the Government indicates that it is not obvious that the current limit on damages in tort would be bypassed or overridden in a Viking-based claim since that limit has a sound basis in the protection of the freedoms of trade unions which would be taken into consideration if the limit were challenged as contrary to the European Union law.

The Committee first wishes to recall more generally its previous comments, in which it has noted the limitations on industrial action in the United Kingdom, including that it remains a breach of contract at common law for workers to take part in strike action and that trade union members are protected from the common law consequences (dismissal) only when the trade union has immunity from liability, i.e. when the strikes are in contemplation or furtherance of a trade dispute, which would not include secondary action or sympathy strikes (section 224 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA)). The Committee has asked the Government in this regard to indicate the measures taken or envisaged so as to amend the TULRA, with a view to broadening the scope of protection available to workers who stage official and lawfully organized industrial action. 

With respect to the matter raised by BALPA, the Committee wishes to make clear that its task is not to judge the correctness of the ECJ’s holdings in Viking and Laval as they set out an interpretation of the European Union law, based on varying and distinct rights in the Treaty of the European Community, but rather to examine whether the impact of these decisions at national level are such as to deny workers’ freedom of association rights under Convention No. 87. 

The Committee observes that when elaborating its position in relation to the permissible restrictions that may be placed upon the right to strike, it has never included the need to assess the proportionality of interests bearing in mind a notion of freedom of establishment or freedom to provide services. The Committee has only suggested that, in certain cases, the notion of a negotiated minimum service in order to avoid damages which are irreversible or out of all proportion to third parties, may be considered and if agreement is not possible the issue should be referred to an independent body (see 1994 General Survey on freedom of association and collective bargaining, paragraph 160). The Committee is of the opinion that there is no basis for revising its position in this regard.

The Committee observes with serious concern the practical limitations on the effective exercise of the right to strike of the BALPA workers in this case. The Committee takes the view that the omnipresent threat of an action for damages that could bankrupt the union, possible now in the light of the Viking and Laval judgements, creates a situation where the rights under the Convention cannot be exercised. While taking due note of the Government’s statement that it is premature at this stage to presume what the impact would have been had the court been able to render its judgement in this case given that BALPA withdrew its application, the Committee considers, to the contrary, that there was indeed a real threat to the union’s existence and that the request for the injunction and the delays that would necessarily ensue throughout the legal process would likely render the action irrelevant and meaningless. Finally, the Committee notes the Government’s statement that the impact of the ECJ judgements is limited as it would only concern cases where freedom of establishment and free movement of services between Member States are at issue, whereas the vast majority of trade disputes in the United Kingdom are purely domestic and do not raise any cross‑border issues. The Committee would observe in this regard that, in the current context of globalization, such cases are likely to be ever more common, particularly with respect to certain sectors of employment, like the airline sector, and thus the impact upon the possibility of the workers in these sectors of being able to meaningfully negotiate with their employers on matters affecting the terms and conditions of employment may indeed be devastating. The Committee thus considers that the doctrine that is being articulated in these ECJ judgements is likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention.

In light of the observations that it has been making for many years concerning the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice, and bearing in mind the new challenges to this protection as analysed above, the Committee requests the Government to review the TULRA and consider appropriate measures for the protection of workers and their organizations to engage in industrial action and to indicate the steps taken in this regard.

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

Article 2 of the Convention. The Committee’s previous direct request concerned comments made by the Trades Union Congress (TUC) to the effect that union representatives do not enjoy a general right of access to workplaces and that this has been an issue of particular concern in the merchant shipping sector. The TUC had stated that there is no general right for union representatives to access workplaces, carry out union activities and inform workers of the benefits of union membership in workplaces where unions are recognized, but rather limited facilities in relation to consultation rights during collective redundancies and transfer for undertakings.

The Committee takes note of the detailed information provided by the Government on the system applicable in the United Kingdom, which is very decentralized. It notes that pursuant to a review carried out with trade union participation in 2006 and 2007, work is under way on revising the code of practice on time off for trade union duties and activities issued by the Advisory, Conciliation and Arbitration Service (Acas). The Government also acknowledges that full-time trade union officials enjoy few legal rights to enter the premises of employers and that such matters are usually determined by agreement between an employer and a trade union. One particular provision assigns access rights to union officials in the framework of the statutory recognition procedure introduced by the Employment Relations Act, 1999/Employment Relations (Northern Ireland) Order, 1999. Under that procedure, a union’s application for recognition may be determined by a ballot and the union may send officials to the employer’s premises in advance of the ballot to explain the union’s case for recognition to the relevant workforce. These entitlements apply to merchant shipping, provided that the ships and seamen involved are within the United Kingdom’s territorial jurisdiction.

The Committee notes that according to the TUC’s latest comments, a trade union has no right of access to speak to a worker it may be accompanying in a disciplinary or grievance hearing, and indeed the employer can deny the union the right of access to the workplace even in these circumstances, by conducting the hearing off-site. Limited rights of access are granted only in the regulated context of recognition ballots under the statutory recognition procedure and even then, ultimately the employer cannot be required to allow access, so powerfully are property rights recognized in British labour law.

The Committee recalls that under Article 3 of the Convention, trade unions should have the right to organize their administration and activities in full freedom with a view to defending all of the occupational interests of their members, while respecting the law of the land. This includes in particular the right to have access to places or work and to carry out any activity involved in the defence of members’ rights (General Survey of 1994 on freedom of association and collective bargaining, paragraph 128). The Committee requests the Government to indicate in its next report any measures taken or contemplated to enhance the possibility of trade union access to the workplace in particular in the context of disciplinary or grievance hearings.

Article 3. In its previous direct request, the Committee noted the TUC’s indication that, under section 223 of the Trade Union and Labour Relations Act (TULRA), disputes designed to secure the reinstatement of workers who have been dismissed for taking part in an unofficial strike are unprotected, and that this lack of protection applies regardless of the cause of the unofficial action. The Committee notes that according to the Government, unofficial industrial action is typically very disruptive and the legal framework has been designed to dissuade employees from it. Consequently, there is no protection for individual employees against being dismissed when taking unofficial action under sections 237 of the TULRA and 143 of the Employment Rights (Northern Ireland) Order, 1996. Also, trade unions do not enjoy immunity if they organize industrial action to seek the reinstatement of any individuals so dismissed (sections 233 of the TULRA and 116 of the 1996 Order). The Committee recalls that workers’ organizations should be able to have recourse to legitimate means of defending their economic and social interests and that restrictions on the right to strike are acceptable only in certain limited circumstances (essential services in the strict sense of the term and public servants exercising authority in the name of the State). The Committee therefore requests the Government to indicate any measures taken or contemplated so as to amend section 223 of the TULRA with a view to ensuring the protection of official industrial action as long as it is organized in conformity with the law, even if it is aimed at securing the reinstatement of workers dismissed for taking part in an unprotected strike.

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

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee’s previous comments concerned the need to ensure more fully the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, and in particular when they intend to exclude or expel individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. The Committee welcomes the Judgement of the European Court of Human Rights (ECHR) reached in the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007) which refers to Articles 3 and 5 of the Convention and which found that section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) violated Article 11 of the European Convention on Human Rights on freedom of association in that it did not strike a proper balance between the rights of individual members and those of the trade union.

The Committee notes from the Government’s report that pursuant to this decision, it acted with the necessary degree of urgency to amend the relevant provisions of the TULRA in consultation with the social partners. The Government made legislative proposals to the United Kingdom Parliament to amend section 174 and the related provisions concerning remedies in section 176; these proposals are currently contained in clause 19 of the Employment Bill, introduced in the House of Lords on 6 December 2007. The Bill completed its passage in the House of Lords and on 3 June 2008 was introduced into the House of Commons. The Government expects the Bill to gain Royal Assent in the autumn of 2008.

On the substance of the amendments, the Committee notes that according to the Government, clause 18 of the Employment Bill provides wider scope for trade unions to expel or exclude a person on grounds of political party membership, as well as safeguards aimed to ensure that exclusion or expulsion on these grounds is lawful only in cases where membership of the political party concerned is contrary to a rule or objective of the union and where the union has followed fair procedures when taking its decision to exclude or expel. With regard to Northern Ireland in particular, the Government indicates that public consultations were launched in June 2008 on proposals to amend similar provisions to TULRA (article 38 of the Trade Union and Labour Relations (Northern Ireland) Order, 1995). The consultation will run until 30 September 2008 and any legislative amendments will be taken forward in an Employment Bill through the Northern Ireland Assembly in 2009.

The Committee takes note of the detailed comments on the Government’s report made by the Trades Union Congress (TUC) in a communication dated 1 September 2008, as well as the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008. The Committee notes that while the TUC welcomes the introduction of the Employment Bill into Parliament, it has reservations about the detail introduced in clause 18 which was heavily amended in the House of Lords. The TUC considers that if clause 18 is enacted in its present form, a trade union would be able lawfully to expel someone because of membership of a political party, only if this is in accordance with the rules or objectives of the union, but in the latter case, only if the objective is accessible to the individual in question; even if the decision is taken in accordance with the rules or objectives of the union, it would still be unlawful if certain procedural obligations were not complied with first, and if representations made by the individual were not considered fairly; the TUC believes that these provisions are unnecessary and disproportionate given that there is already protection at common law for those expelled from a trade union without authority under the rules, to which these amendments add another layer of regulation; the TUC adds that even if these substantive/procedural obligations were met, it would also be unlawful to exclude or expel if to do so would cause the individual to lose his or her livelihood or suffer “exceptional hardship”; this term is not defined and it is difficult to anticipate its meaning given that there is already statutory protection from discrimination or dismissal because of non-membership of a trade union. If the union does not comply with these rules it will be liable to pay a minimum award of compensation to the individual concerned (currently £6,900). Finally, the TUC contends that the new legislation’s complexity is likely to lead to unjustified and vexatious litigation. It adds that section 174 of the TULRA should be repealed as a whole to reinstate unions’ rights to freedom of association.

The Committee requests the Government to reply to the concerns expressed by the TUC, and to indicate in its next report the measures taken or envisaged to ensure that the amendments to section 174 of the TULRA fully guarantee the right of unions to draw up their constitutions and rules without interference by the public authorities.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). The Committee’s previous comments concerned the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government’s indication that it has no plans to change the law in this area as it considers it essential under its system of decentralized industrial relations that it should remain unlawful for a trade union to organize any form of secondary industrial action. The Committee notes that according to the TUC, the decentralized nature of the industrial relations system makes it more important for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, by transferring work, or by hiving off companies. In this connection the Committee recalls once again that workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to social and economic matters which affect them, even though the direct employer may not be a party to the dispute, and requests the Government to indicate in its next report any measures contemplated to amend sections 223 and 224 of the TULRA in keeping with this principle.

Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee took note of the TUC’s indication that the Employment Relations Act of 2004 (ERA) amends the TULRA (by adding subsection 7B to section 283A) so as to make it unlawful for an employer to dismiss an employee for taking part in a lawful strike for the first 12 weeks of the strike. The Committee notes from the Government’s report that protection against dismissal for employees who break their contracts of employment in the framework of official and lawfully organized industrial action, is now greater than at any other time in the country’s history pursuant to new protections introduced in the Employment Relations Acts 1999 and 2004 and the Employment Relations (Northern Ireland) Orders of 1999 and 2004. The new protections take two forms: first, it is unlawful to dismiss on the grounds of a person’s participation in industrial action, where the action took place within a period of 12 weeks (covering the vast majority of official industrial action); second, a dismissal is unfair if the employer has failed to follow all reasonable procedural steps to resolve the dispute with the union; this condition applies to official and lawfully organized industrial action beyond the 12-week period. The Government adds that it does not support the view that the employer must never dismiss employees under any circumstances when they take industrial action.

The Committee notes, however, that in its latest comments, the TUC lists a number of defects in the protection for striking workers in the United Kingdom: (i) it remains a breach of contract at common law for workers to take part in strike action, and recent legislation simply gives some protection from the consequences of the common law position in certain circumstances instead of changing this position; (ii) trade union members are protected from the common law consequences (dismissal) only when the trade union has immunity from liability, i.e. when the strikes are in contemplation or furtherance of a “trade dispute” which, as previously indicated by the Committee of Experts, allows for industrial action in narrow circumstances (see above); (iii) even where the protection against dismissal does arise, it is not unlimited but applies only for the first 12 weeks of the dispute and any extension is conditional and not guaranteed; (iv) even where the protection applies and someone is unfairly dismissed, the unfairly dismissed employees have no right to return to work if the employer objects.

The Committee is of the view that for the right to strike to be effectively guaranteed, the workers who stage a lawful strike should be able to return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the employer’s consent constitute, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes an essential means for workers to promote and defend the interests of their members. The Committee therefore requests the Government to indicate any measures taken or contemplated so as to amend the TULRA with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action.

Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226–235 of the TULRA and 104–109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard.

The Committee is raising additional points in a request directly addressed to the Government.

Direct Request (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.

Article 2 of the Convention. The Committee notes the TUC’s indication that union representatives do not enjoy a general right of access to workplaces, and that this has been an issue of particular concern in the merchant shipping sector. The TUC states that, in workplaces where unions are recognized, the law requires employers to provide union representatives with limited facilities in order to perform activities relating to consultation rights related to collective redundancies and transfer for undertakings; however, these provisions do not set out a general right for union representatives to access workplaces, carry out union activities and inform workers of the benefits of union membership. The Committee recalls in this connection that freedom of association implies that workers’ and employers’ organizations should have the right to organize their activities in full freedom and formulate their programmes with a view to defending all of the occupational interests of their members, while respecting the law of the land. This includes, in particular, the right to hold trade union meetings, the right of trade union officers to have access to places of work and to communicate with management, certain political activities of organizations, the right to strike and, in general, any activity involved in the defence of members’ rights (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 128). The Committee requests the Government to reply to the concern expressed by the TUC regarding this matter and the impact that the question of access may have on the right of workers to form and join organizations of their own choosing, particularly those working in the merchant shipping sector.

Article 3 of the Convention. 1. The Committee notes the TUC’s indication that the Employment Relations Act of 2004 (ERA) amends the Trade Unions and Labour Relations Act of 1992 (TULRA) so as to make it unlawful for an employer to dismiss an employee for taking part in a lawful strike for the first 12 weeks of the strike. The TUC maintains that this arrangement fails to adequately protect the right to strike of trade unions and refers to the case of Friction Dynamics, where the employer had waited until the statutory period was over to then immediately send dismissal letters to the workers who had participated in the strike. The Committee requests the Government to reply to the TUC’s comments respecting this issue.

2. The TUC states that, in order for an industrial action to be protected by immunity, unions must undertake a complex procedure involving not only a ballot of those called upon to take part in the action, but also the submission of notice to the employer containing detailed information – failure to comply with which may allow the employer to obtain an injunction and so thwart the industrial action on the basis of a technicality. The TUC indicates that the required submissions include: notice of a trade union’s intention to hold a ballot, a sample voting paper, notice of the ballot result, lists of the categories of workers and the workplaces affected by or involved in the action, and at least seven days’ notice of the intention to commence industrial action. The TUC maintains that these notice requirements, though simplified by the ERA, are still unjustifiably burdensome. The Committee asks the Government to reply to the TUC’s concerns respecting this matter.

3. The Committee notes the TUC’s indication that, under section 223 of the TULRA, disputes designed to secure the reinstatement of workers who have been dismissed for taking part in an unofficial strike are unprotected, and that this lack of protection applies regardless of the cause of the unofficial action. The Committee asks the Government to reply to the TUC’s comments concerning this issue.

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. The Committee requests the Government to send its observations thereon.

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee notes the comment by the TUC that, although section 174 of the Trade Unions and Labour Relations Act (TULRA) was amended by the Employment Relations Act, 2004 (ERA) so as to allow unions to exclude or expel individuals on account of conduct which “consists of activities undertaken by an individual as a member of a political party”, this amendment does not fully address freedom of association concerns as it is still unlawful to exclude or expel an individual because he or she is a member of an extremist political party with principles and policies wholly repugnant to the trade union. The TUC indicates, moreover, that an individual excluded or expelled wholly because of his or her membership of an extremist political party is entitled automatically to a minimum level of compensation, whether or not any loss has been suffered; in this regard, the TUC indicates that far-right extremist organizations have encouraged members to infiltrate trade unions and gives an example where the expulsion of such a person gave rise to an enforced compensation order by an employment tribunal against the union. The Committee recalls that, in previous comments, it had asked the Government to keep it informed of developments in more fully ensuring the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities. In light of the serious concerns expressed by the TUC, the Committee requests the Government to consider taking measures as a matter of urgency to amend section 174 of the TULRA so as to give fuller effect to this right of unions and to indicate the measures taken or envisaged in its next report. It further requests the Government to reply to the concern raised by the TUC over the obligation to provide compensation for each expulsion regardless of whether any loss had been suffered.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). The Committee had previously asked the Government to keep it informed of developments regarding the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government’s indication that there are no new developments respecting this matter. In this connection the Committee recalls once again that workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to matters which affect them, even though the direct employer may not be a party to the dispute, and requests the Government to take the necessary measures to amend sections 223 and 224 in keeping with this principle.

The Committee is raising additional points in a request directly addressed to the Government.

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

The Committee takes note of the information contained in the Government’s report, and the enactment of the Employment Relations Act 2004.

1. Definition of trade dispute (section 244 of the Trade Union and Labour Relations Act of 1992 (TULRA)). The Committee had requested the Government to keep it informed of measures taken or intended to remedy the situation whereby due to the restrictive definition of trade disputes, workers in practice lose the common law protection against breach of employment contract and, therefore, are prevented from using an essential means of defending their interests. The Committee notes the Government’s indication that there were no developments to report in this area and that it had studied the comments of unions on this matter as part of the review of the Employment Relations Act 1999, which concluded that the law is working adequately. The Committee recalls once again that the right to strike is an essential means by which trade unions may defend their interests, and requests the Government to keep it informed in its future reports of any developments in this regard.

2. Review of the 1999 Employment Relations Act. The Committee had requested the Government to keep it informed of the progress and results of the review of the Employment Relations Act 1992, including on issues that were raised in its previous comments on the basis of observations made by workers’ organizations such as UNISON in respect of pre-ballot and pre-strike notices, and in particular the interpretation of the amendments brought to section 226A(2)(c) of the TULRA, and on issues raised in its previous observations. The Committee observes that the review in question resulted in the Employment Relations Act 2004, and notes with interest the following developments:

(a)  Protected period for employees taking lawful industrial action. By virtue of sections 26-28 of the Employment Relations Act 2004, this period is extended by ensuring that the equivalent number of days during which employees are locked out by the employer are added to the basic 12-week period of protection, and defining more clearly procedural requirements on the employer.

(b)  Inducements to become or not to become trade union members. Section 29 of the Employment Relations Act 2004 introduces a new section 145A into the TULRA giving workers the right not to have an offer made where its sole purpose is to induce the worker not to be, or seek to become, a member of a union, not to take part in union activities, or not to use union services.

(c)  Means of voting in balloting and elections. Sections 52-54 of the Employment Relations Act 2004 increase the methods by which unions may conduct ballots and elections.

3. Section 59 of the Merchant Shipping Act 1995. The Committee notes the clarifications provided in the Government’s report.

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

The Committee notes the information contained in the Government’s report, including the recent enactment of the Employment Relations Act, 2004, which was the result of the review of the Employment Relations Act, 1999.

1. Unjustified discipline (sections 64-67 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA)). In its previous comments, the Committee had requested the Government to keep it informed of developments in respect of sections 64-67 of the TULRA, which prevent trade unions from disciplining members who refuse to participate in lawful strikes and other industrial action or who seek to persuade members to refuse to participate in such action. The Committee notes the information provided by the Government that the review of the Employment Relations Act, 1999 resulted in the Employment Relations Act, 2004, that amends section 67 by transferring responsibility from the Employment Appeal Tribunal to an employment tribunal for making certain compensatory awards and that in the current reporting period 17 tribunal complaints have been brought under section 66.

The Committee further recalls that it had requested the Government to keep it informed of any developments in respect of section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), which severely restricted the situations in which trade unions may exclude or expel individuals from membership. The Committee notes with interest that, by virtue of section 33 of the Employment Relations Act, 2004, section 174 of the TULRA has been amended to allow unions lawfully to exclude and expel individuals wholly or partly on the basis of conduct which consists of activities undertaken by an individual as a member of a political party.

Recalling once again that unions should have the right to draw up their rules without interference from public authorities and should be able to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take industrial action, the Committee requests the Government to continue to keep it informed in its future reports of any further developments concerning sections 64-67 of the TULRA so as to more fully ensure the rights of unions to draw up their rules and formulate their programmes without government interference.

2. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had requested the Government to keep it informed in its future reports of developments in respect of the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee notes that the Government reports that there are no developments in respect of the treatment of sympathy strikes under United Kingdom law and that principles of fairness and partnership at work have resulted in more harmonious relationships and the avoidance of conflict. The Committee further notes the Government’s indication that it believes that the restrictions on secondary and solidarity strikes reflect the United Kingdom’s experiences and needs and that its strike law gives sufficient scope for unions to protect the interests of their members. The Committee once again recalls that workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to matters which affect them even though the direct employer may not be a party to the dispute, and requests the Government to continue to keep it informed in its future reports of developments in this respect.

The Committee is raising a number of points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report, the comments made by UNISON in November 2000 and the reply thereto.

1. Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee recalls that its previous comments concerned section 174 of the Trade Union and Labour Relations Act of 1992 (TULRA) as amended in 1993, which severely restricted the situations in which trade unions may exclude or expel individuals from membership. The Government states that there are no developments to report and that the number of complaints in this respect has remained at the same level. The Committee requests the Government to keep it informed of any developments in respect of this section, including information on complaints brought before the industrial tribunal under this provision.

2. Individual rights in relation to unlawful industrial action (section 235A of the 1992 TULRA). The Committee notes that the first (and so far only) case of this type was brought by parents on behalf of their child, and related to industrial action by his teachers. The teachers took industrial action because of a direction from the head teacher that the child, whom the teachers considered disruptive, should be taught in ordinary classes. The case failed as the court held that the industrial action was lawful. The Committee notes this information.

3. Section 59 of the Merchant Shipping Act, 1995 (strike when a ship is securely moored). The Government indicates that consultations were undertaken with interested parties to identify possible solutions and that there remains a need for provisions to guard against actions which could result in serious damage to vessels, or serious injury or death to persons; the Government proposes to amend section 59 so that it applies only to actions which cause or could cause loss or serious damage to vessels, or serious injury or death to any person. The Committee notes this information and requests the Government to provide it with the text of the amending provision in its next report.

4. Definition of trade dispute (section 244 of the 1992 Act). The Committee notes the Government’s observations in reply to UNISON’s comments in connection with the UCLH case, where national courts upheld an injunction preventing proposed industrial action on the ground that the action was not "in contemplation or furtherance of a trade dispute", a view which was confirmed by the European Court of Human Rights. While noting the particular circumstances of the case (in the context of subcontracting of hospital services to a private consortium, the union intended to take industrial action to obtain a guarantee that its members’ terms of employment would be transferred to the new employer), the Committee notes that due to the restrictive definition of trade disputes, workers in practice lose the common law protection against breach of employment contract in such situations and, therefore, are prevented from using an essential means of defending their interests. The Committee requests the Government to keep it informed in its next reports of measures taken or intended to remedy this situation.

5. Review of the 1999 Employment Relations Act. The Committee notes that an in-depth review of the ERA was launched in July 2002, to examine the operation of the entire Act through full consultation with unions, employers and other interested parties, including an assessment of the operation of these provisions in practice and their interpretation by the courts. The Committee requests the Government to keep it informed of the progress and results of that review in its next report, including on issues that were raised in its previous comments on the basis of comments by workers’ organizations (e.g. UNISON’s comments on pre-ballot and pre-strike notices, and in particular the interpretation of the amendments brought to section 226A(2)(c) of the 1992 TULRA) and on issues raised in previous observations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the information provided in the Government’s report, and its reply to the comments of UNISON and the Trades Union Congress (TUC) of November 2000. It further notes the recent TUC comments of November 2002 on the application of the Convention and requests the Government to transmit its observations thereon.

The Committee notes that parts of the 1999 Employment Relations Act (ERA) have entered into force as planned: namely, the establishment of a statutory procedure for union recognition (June 2000); a simplification of the law on industrial action ballots and notices; and the right of workers to be accompanied by a representative at grievance hearings (September 2000). The Committee also takes note of the revised Code of Practice on Industrial Action Ballots and Notice to Employers.

1. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) (TULRA) Act). The Committee recalls that its previous comments in this respect concerned provisions which prevent trade unions from disciplining their members who refuse to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action.

The Government indicates that only 49 such complaints have been brought in the reporting period, in spite of an increase in the number of days of strike, which confirms that unions have adapted to the law and are not inhibited by it when taking industrial action. With respect to the TUC comments on the subject, the Government maintains that these sections provide necessary protections for individual workers in their relationship with their unions and do not represent an undue interference in internal affairs of trade unions, and that there is a need to reconcile the freedoms of individuals and those of unions.

The Committee takes note of this information. It recalls that unions should have the right to draw up their rules without interference from public authorities and so to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action. It requests the Government to continue to keep it informed of developments in this respect in its future reports.

2. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). The Committee recalls that its previous comments concerned the absence of immunities in respect of civil liability when undertaking sympathy strikes. It commented that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful, and stressed that this principle is particularly important in the light of earlier TUC comments that employers commonly avoid the adverse effects of disputes by transferring work to associated employers and that companies have restructured their businesses in order to make primary action secondary.

The Government states that while the TUC agrees that employers often re-engage in negotiations with unions once a ballot provides evidence that its members would support industrial action, the TUC contends that this is irrelevant to the issue of solidarity action. The Government considers that this is indeed important in ascertaining whether the law is balanced. If it were not, employers would often ignore the result of a ballot in the knowledge that the threat of industrial action would have little effect on their organizations. This shows that the law does not disadvantage unions in their dealings with employers. These restrictions are necessary in a decentralized system of industrial relations, as they ensure that the widespread disruption to industrial life caused by secondary and solidarity action, once prevalent in the United Kingdom, is avoided.

While taking due note of the information provided by the Government, the Committee must recall once again that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and that they should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. It requests the Government to continue to keep it informed of developments in this respect in its future reports.

The Committee is raising a number of points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  Article 3.  Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities.  The Committee recalls that its previous comments concerned section 174 of the Trade Union and Labour Relations Act of 1992 (TULRA), as amended in 1993, which severely restricted the situations in which trade unions may exclude or expel individuals from membership. The Committee notes the information in the Government’s latest report that there was no evidence that these provisions significantly impeded unions in carrying out their functions or have led to any increase in disputes between them. In addition, the Government states that the Trades Union Congress (TUC) has drawn up new rules to replace the Bridlington arrangements to resolve inter-union disputes among its affiliates and to take account of the new statutory recognition procedure, which places an onus on unions to collaborate where they are jointly seeking recognition. The Government therefore does not believe that there is a good argument for weakening the freedoms the provision secures for individuals on the ground that it inhibits the ability of unions to manage inter-union disputes. The Committee requests the Government to keep it informed of any developments in respect of this section, as well as to provide information in its next report on any complaints brought before the industrial tribunal under section 174(5).

2.  With reference to its observation, the Committee recalls that its previous comments concerned the third-party right to request injunctive relief against unlawful strike action under section 235A of the 1992 TULRA. The Committee notes from the Government’s latest report that no one has applied to courts for such an injunction since the relevant provision was introduced in 1993, and requests the Government to continue to keep it informed of any developments in this respect.

3.  The Committee notes the comments raised under Convention No. 105 in respect of section 59 of the Merchant Shipping Act, 1995, which provides that a seafarer who combines with other seafarers employed on the same ship at a time while the ship is at sea, including when it is securely moored in a safe berth, to disobey lawful commands, neglect any duty which is required to be discharged, or impede the progress of a voyage or the navigation of the ship, is liable to imprisonment for a term not exceeding two years or a fine or both. In this respect, the Committee recalls that the right to strike should only be restricted or prohibited in respect of essential services in the strict sense of the term and in acute national crises. While of the opinion that the services of seafarers when a ship is at sea may be considered to be an essential service, the Committee does not consider this to be the case when a ship is securely moored in a safe berth. Furthermore, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and measures of imprisonment should be justified by the seriousness of the offences committed. Noting from the Government’s report under Convention No. 105 that negotiations are under way with a view to commencing the repeal process as soon as possible so that this section would apply only to mutinies and not to strike action, the Committee requests the Government to keep it informed of any developments in this respect under the present Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, as well as the observations made by the Trades Union Congress (TUC) and the mainly public sector trade union UNISON. The Committee requests the Government to reply to these observations in its next reports under this Convention and Convention No. 98.

The Committee first notes with interest the introduction in 1999 of the Employment Relations Act (ERA) which will amend a certain number of provisions of the 1992 Trade Union and Labour Relations (Consolidation) Act upon which the Committee has been commenting for a number of years. In particular, the Committee notes with satisfaction the abolition of the Commissioner for the Rights of Trade Union Members (CRTUM) and of the Commissioner for Protection Against Unlawful Industrial Action (CPAUIA) under section 28 of the ERA which came into force on 25 October 1999. The Committee further notes from section 4 and Schedule 3 of the 1999 Act that the purpose of ballot notice has now been restricted to providing information to help the employer to make plans and bring information to the attention of those of his or her employees concerned, and that it is specifically provided that unions are not required to name the employees concerned when giving ballot notice. Furthermore, the Committee notes with interest the indication in the Government’s report that a revised Code of Practice on Industrial Action Ballots and Notice to Employers was issued for consultation in April 2000 reflecting these changes and that the revised Code and the relevant parts of the 1999 Act are expected to come into force on 18 September 2000. The Committee requests the Government to confirm in its next report the entry into force of these provisions and to provide a copy of the revised Code of Practice.

Furthermore, the Committee requests the Government to reply as soon as possible to UNISON’s observations concerning these amendments and to provide any information available in respect of the interpretation of the amendments made to section 226A(2)(c).

The Committee also notes, however, that there are a number of points raised in its previous comments which have not yet been addressed.

1.  Unjustifiable discipline (sections 64-67).  The Committee recalls that its previous comments concerned sections 64-67 of the 1992 Act which prevented trade unions from disciplining their members who refused to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action.  In its latest report, the Government maintains that these sections provide necessary protections for individual workers in their relationship with their unions and the consequent constraints on union freedoms are justified. The Government adds, however, that they do not operate a system of prior vetting or approval of union constitutions or rule books by a public authority.

The Committee takes due note of this information. It once again recalls that unions should have the right to draw up their rules and to formulate their programmes without the interference of the public authorities which should restrict or impede the exercise of freedom of association and so to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action. It requests the Government to continue to keep it informed of any developments in respect of these provisions and, in particular, to provide in its next report any information concerning complaints brought under section 66 and awards granted in this respect under section 67. It further requests the Government to reply as soon as possible to the observations made by the TUC in respect of these provisions.

2.  Immunities in respect of civil liability for strikes and other industrial action (section 224). The Committee recalls that its previous comments concerned the absence of immunities in respect of civil liability when undertaking sympathy strikes. It notes the Government’s indication that no changes have been made in this respect. The Committee once again recalls that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute. This principle is of particular importance in the light of earlier comments made by the Trades Union Congress (TUC) that employers commonly avoided the adverse effects of disputes by transferring work to associated employers and that companies have restructured their businesses in order to make primary action secondary. The Committee must reiterate that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful, and requests the Government to reply as soon as possible to the issues raised by the TUC and by UNISON in this respect.

The Committee is raising a number of points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee's previous comments concerned section 174 of the Trade Union and Labour Relations Act of 1992 (TULRA), as amended by the Trade Union Reform and Employment Rights Act of 1993, which severely restricts the situations in which trade unions may exclude or expel individuals from membership. The Committee notes that the Government maintains the position stated in previous reports and adds that there is no evidence that these provisions significantly impede unions in carrying out their functions or have led to any rise in disputes between unions.

The Committee must once again recall that, while section 174 of the TULRA, as amended, was, according to the Government, intended to provide individuals greater freedom to join trade unions of their own choosing, it may indeed have a serious impact on the right of union members to determine the make-up of their organization in accordance with its objectives. In its 1996 comments on these measures, the TUC indicated that these restrictions have been adopted in order to undermine its Bridlington Principles which had been democratically adopted by Congress to promote orderly relations between affiliates and the development of constructive collective bargaining arrangements. According to the TUC, these principles facilitated orderly transfers of membership between unions and provided a straightforward way of resolving inter-union disputes. The Committee would request the Government to respond to these comments and to reconsider narrowing the scope of this section to permit for greater freedom for workers' organizations to establish their rules concerning membership in accordance with their objective of furthering and defending workers' interests.

2. The Committee would recall that its previous comments concerned the third-party right to request injunctive relief against unlawful strike action under section 235A of the 1992 TULRA. The Committee notes from the Government's report that, while it has no plans to repeal this section, it has proposed the abolition of the Commissioner for Protection Against Unlawful Industrial Action (CPAUIA) so that public funding will no longer be available for anyone seeking an injunction to stop industrial action which deprives, or threatens to deprive, that person of goods or services. It further notes the Government's statement that no one has applied to the courts for such injunction since the relevant provision was introduced in 1993 and there is, therefore, no evidence that the existence of this right in any way frustrates unions in carrying out their lawful activities.

The Committee requests the Government to keep it informed of the progress made in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee takes note of the information provided in the Government's report. It further notes the Government's statement to the 1997 Conference Committee on the Application of Standards and the discussion which took place therein.

1. Dismissal of workers at GCHQ. With reference to its previous comments relating to the need to restore trade union rights for workers at Government Communications Headquarters in Cheltenham (GCHQ), the Committee notes with satisfaction from the Government's report that one of the first acts of the new Government on taking office in May 1997 was to restore to the employees of GCHQ the right to belong to any trade union of their choice. It further notes that the Director of GCHQ, the Chairman of the GCSF and the general secretaries of the civil service unions signed a legally binding agreement under which the Government Communications Group of the PCS is recognized for consultation and negotiation on matters exclusive to GCHQ. The other civil service unions are recognized for service-wide matters, and for representation of individual members. Under the collective agreement, the unions have agreed not to take any industrial action that would disrupt GCHQ operations. The unions also have unilateral right of access to binding arbitration if a dispute is unresolved. Finally, the Government indicates that the Foreign Secretary has revoked the certificate which contained the remaining restrictions on access to industrial tribunals and the first of those former employees who were dismissed for continuing union membership returned to work at GCHQ on 9 September 1997.

2. Matters relating to the 1992 Trade Union and Labour Relations (Consolidation) Act and other related texts. The Committee notes with interest from the Government's report that consultations have been held with the social partners in order to determine the changes necessary to the employment law resulting in the publication of a White Paper on Fairness at Work. It further notes the Government's statement that the relevant legislative proposals will be made as soon as possible.

The Committee further notes with interest the Government's indication that it recognizes that the existing law and Code of Practice on industrial action ballots and notices are too complicated and rigid and that failure to comply with these complex requirements can result in injunctions preventing unions from carrying out planned industrial action. It welcomes the Government's indication that it has announced plans to simplify the law and the Code of Practice and has invited views from interested parties, including unions and employers' organizations on how this should be done. According to the Government, the proposals should lead to clearer and better regulation in this area and help ensure that unions avoid legal action over technical breaches of law. Furthermore, with reference to its previous comments concerning section 226A of the 1992 Act in respect of strike ballots, the Committee notes with interest the Government's statement of its intention to amend the law on industrial action ballots and notice to make clear that, while the union's notice to the employer should still identify as accurately as reasonably practicable the group or category of employees concerned, it need not give names. It requests the Government to keep it informed of the progress made in this regard.

(a) Unjustifiable discipline (sections 64-67). The Committee recalls that the previous comments on this matter concerned the above-mentioned provisions of the 1992 Act which prevented trade unions from disciplining their members who refused to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action.

In its latest report, the Government states that it strongly supports the principle that workers should be free to join the trade union of their choice as trade unions provide important services to their members. According to the Government, it therefore follows that the rights of unions to discipline and expel members need to be balanced against the rights of individuals to acquire and retain their membership. The Government adds that, under the law of the United Kingdom, individuals are almost invariably breaking their contracts under which they work when they take any form of industrial action, irrespective of whether the action is official or unofficial, or whether the action is lawfully or unlawfully organized. These workers can therefore be sued on an individual basis by employers for damages. In contrast, unions cannot be sued for damages if they organize industrial action within the law. In these circumstances, the Government considers that individuals should be free to decide whether or not to take part in lawfully organized industrial action since the potential liability is the individual's and not the union's.

The Committee must, nevertheless, once again recall that Article 3 of the Convention concerns the rights of trade unions to, inter alia, draw up their constitutions and rules and to organize their activities and to formulate their programmes, without interference by the public authorities. The free choice to join a trade union can clearly be based on a careful consideration of the provisions in such constitutions and rules. Furthermore, the Committee would recall that the prohibition of such disciplinary measures carries with it heavy financial penalties. The Committee considers unions should have the right to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action, and that the financial penalties imposed by the legislation in this respect constitute undue interference in the right of workers' organizations to draw up their constitutions and rules freely and would therefore once again ask the Government to refrain from any such interference. As concerns the Government's argument in respect of the liability of individual workers, the Committee recalls the importance it attaches to the maintenance of the employment relationship as a normal consequence of the recognition of the right to strike.

(b) Immunities in respect of civil liability for strikes and other industrial action (section 224). The Committee recalls that its previous comments concerned the absence of immunities in respect of civil liability when undertaking sympathy strikes. It pointed out in this respect that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute.

The Committee notes that the Government reiterates its previous comments concerning secondary action and adds that permitting forms of secondary action would be a retrograde step and would risk taking the United Kingdom back to the adversarial days of the 1960s and 1970s when industrial action frequently involved employers and workers who had no direct connection with a dispute.

The Committee further notes the comments made by the Trades Union Congress (TUC) of 7 November 1996 that it is a common tactic of employers to avoid the adverse effects of disputes by transferring work to associated employers and that companies have restructured their businesses in order to make primary action secondary. The Government, while indicating that there is no official information collected to measure the extent of this phenomenon, considers that it is fully consistent with its legislation and the Convention for employers to mitigate the adverse financial consequences of a strike.

The Committee must note that, beyond the effects that these provisions may have in respect of secondary action, it would appear that the absence of protection against civil liability may even have a negative effect on primary industrial action. In these circumstances, the Committee can only reiterate its position that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful and requests the Government to indicate any developments in this regard.

3. Dismissals in connection with industrial action. In its previous comment, the Committee had drawn the Government's attention to paragraph 139 of its 1994 General Survey in which it noted that sanctions or redress measures were frequently inadequate when strikers were singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal) and that this raised a particularly serious issue in the case of dismissal if workers could only obtain damages and not their reinstatement. The Committee indicated that legislation should provide for genuine protection in this respect, otherwise the right to strike would be devoid of content.

The Committee notes with interest the Government's indication that it intends to allow in certain circumstances those dismissed for taking part in lawfully organized official industrial action to complain to a tribunal of unfair dismissal, even where all workers have been dismissed. The Committee intends to examine the progress made in respect of the Government's proposals in this regard under Convention No. 98.

The Committee is addressing a request directly to the Government concerning certain other matters.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

1. The Committee notes the information provided in the Government's report with respect to its comments concerning the limitations placed upon trade unions by section 174 of the Trade Union and Labour Relations Act of 1992 (TULRA), as amended by the Trade Union Reform and Employment Rights Act of 1993, which merely repeats what was stated in previous reports. The Committee must once again recall that, while section 174 of the TULRA, as amended, was, according to the Government, intended to provide individuals greater freedom to join trade unions of their own choosing, it may indeed have a serious impact on the right of union members to determine the make up of their organization in accordance with its objectives. The Committee would therefore once again request the Government to consider narrowing the scope of this section to permit for greater freedom for workers' organizations to determine their membership in accordance with their objective of furthering and defending workers' interests, in so far as the fundamental human rights of the individual worker are not violated.

2. The Committee notes the information provided in the Government's report concerning the third party right, inter alia, to apply to the courts for interlocutory relief where a trade union is engaged in, or is likely to be engaged in, industrial action. The Government underlines, in particular, that section 235A of the 1992 Act only concerns unlawful industrial action. The TUC, however, has indicated in its comments over a number of years that the current legislation increases the likelihood that industrial action will be considered unlawful on the basis of minor procedural flaws in respect of provisions regulating minute details. Furthermore, the Committee notes that, under section 235A, interlocutory relief can be requested were the industrial action has not yet taken place, but where it is considered that a union or an individual is likely to take part in unlawful industrial action. The Committee would therefore once again request the Government to give consideration to repealing this section of the Act in so far as it unduly limits the legitimate exercise of the right to strike by placing all strike action under the potential threat of injunctions granted under this section.

3. In its previous comments, the Committee indicated that section 226A of the 1992 Act, if interpreted to mean that all individuals entitled to vote in a strike ballot had to be specified by name, might render the ballot requirement unreasonably difficult for unions to fulfil and leave industrial action constantly vulnerable to attack. In its latest report, the Government indicates that the purpose of this section is to enable an employer to identify the workforce which may be affected by a ballot so that the employer can put his or her case directly to such employees and take appropriate steps to minimize the damage to business, customers and the public which industrial action might cause. The Government adds that, while rare, there may be some cases where naming individual employees may be the only practicable means for identifying those being asked to consider industrial action. The Committee is of the view that such a requirement constitutes an undue influence on the right of workers' organizations to organize their activities in full freedom, particularly in light of the Government's indication that this provision is specifically intended to enable employers to put their cases directly to the workers concerned. Furthermore, the Committee notes that the TUC comments of 7 November 1996 raise a number of serious concerns with respect to the application of this section and requests the Government to provide detailed information on the matters raised in its next report.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information provided in the Government's latest report, as well as the comments made by the Trades Union Congress (TUC) in a communication dated 7 November 1996 and the Government's partial observations thereto.

1. Dismissal of workers at the Government Communications Headquarters in Cheltenham. In its previous comments, the Committee recalled that the staff at Government Communications Headquarters in Cheltenham (GCHQ) should be guaranteed the right to establish and to join organizations of their own choosing, in accordance with Article 2 of the Convention, and requested the Government to provide information in its next report on developments in this respect. In its latest report, the Government indicates that discussions with the national unions and the Government Communications Staff Federation (GCSF) have continued with a view to finding alternative arrangements which would both meet the Government's objectives with regard to national security and give staff at GCHQ access to the benefits of membership of an independent union.

The Government recalls that GCSF has been recognized formally as a trade union by the Certification Officer for Trade Unions since 1985, however, some aspects of the arrangements under which the Staff Federation had to be approved by the Director of GCHQ made it difficult for the GCSF to secure a certificate of independence. In response to representations from the GCSF, the Government considered the amendments needed to help the GCSF to secure a certificate of independence while maintaining national security interests. On 20 December 1995, the Government introduced changes to the conditions of service of staff employed at GCHQ by removing the GCHQ Director's powers of approval and veto over membership of a staff association. There is still a requirement that members of GCHQ staff may only belong to or engage in the activities of a trade union whose officers and elected or appointed representatives are employees of GCHQ. All forms of industrial action are also still prohibited.

The Government indicates that the GCSF applied for a certificate of independence on 19 January 1996. According to the Government, the changes introduced in December 1995 mean that staff are now able to establish alternative staff associations if they wish, subject only to the requirement that the membership be restricted to GCHQ staff. Additional changes affecting the arrangements for GCHQ staff were introduced on 23 July 1996. Staff of the security and intelligence services had previously been subject to a general ban preventing their access to industrial tribunals which has now been lifted; decisions on whether access to an industrial tribunal can be allowed will now be taken on a case by case basis, depending on whether national security considerations can be met with the procedural safeguards available.

The Government concludes that the changes it has introduced represent not only a positive response to an initiative from the GCSF, but also constitute a clear demonstration of its willingness to consider constructive proposals in relation to GCHQ.

The Committee notes this information with interest. It further notes, however, that in November 1996, the Certification Officer has refused a certificate of independence for the GCSF, even in light of the changes made over the last year. The certificate was refused for the following reasons: the federation's officers have to be employees at the centre which gives management powers of discipline; it cannot merge with another organization nor recruit from elsewhere; the federation has to satisfy the conditions of service of GCHQ; it is 80 per cent funded by management; staff have limited access to industrial tribunals and are banned from taking industrial action. The Government has indicated, however, that the GCSF is intending to appeal this decision.

The Committee notes that, under section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), an "independent trade union" is a trade union which is not under the domination or control of an employer or group of employers or employers' association and is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control. It further notes that a certificate of independence is necessary for a trade union and its members to benefit from certain measures of protection provided for in the TULRA. For example, the following sections only apply to independent trade unions: section 146 (action short of dismissal); section 152 (protection against dismissal); section 168 (time off for trade union duties); section 170 (time off for trade union activities); and section 181 (disclosure of information for collective bargaining).

While it welcomes the recent measures taken by the Government to enable staff at GCHQ to establish alternative staff associations if they wish, subject only to the requirement that the membership be restricted to the GCHQ, the Committee notes with regret that the reasons given for refusing a certificate of independence to the GCSF, the only staff association presently established at GCHQ, particularly as concerns its financing and the limited access to the industrial tribunal, indicate that the GCSF is not able to organize its administration and activities in full freedom, contrary to Article 3 of the Convention. Furthermore, it notes that the absence of an independent status would exclude the GCSF from many of the provisions of the legislation intended to ensure that unions can organize their activities without interference. The Committee therefore requests the Government to provide further information in its next report on the measures taken or envisaged to ensure that workers' organizations at GCHQ can organize their administration and activities in full freedom.

2. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) Act). The Committee recalls that the previous comments on this matter concerned the above-mentioned provisions of the 1992 Act which prevented trade unions from disciplining their members who refused to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action.

In its latest report, the Government states that the legislation in question simply provides basic protection against arbitrary or discriminatory treatment, similar to other anti-discriminatory legislation and similar to restrictions on dismissal by employers and reiterates its previous reports concerning the need to afford protection to union members who exercise their civil right not to break their contracts of employment and participate in industrial action.

The Committee nevertheless must once again underline that Article 3 of the Convention provides, inter alia, that, when drawing up their constitutions and rules, trade unions should have the right (without threat of serious financial penalties upon the application of their rules) to determine whether or not it should be possible to discipline members, including by expulsion or fine, who refuse to comply with democratic decisions to take lawful industrial action or who seek to persuade fellow members to refuse to participate in such action. The Committee would therefore once again ask the Government to refrain from any interference which would restrict the right of workers' organizations to draw up their constitutions and rules freely.

3. Immunities in respect of civil liability for strikes and other industrial action (section 224 of the 1992 Act). The Committee notes that the Government once again maintains its view that nothing in the Convention requires the law to give special protection against proceedings concerning the organization of industrial action among workers who have no dispute with their own employer and that it is unaware of any potential abuse which could arise from a general prohibition on sympathy strikes. The Committee notes that, under section 224 of the Act, there is secondary action in relation to a trade dispute when a person threatens to break a contract of employment or induces another to break a contract of employment and the employer under the contract of employment is not the employer party to the dispute. It would point out in this respect that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute. This could be the case where, for example, the structural organization of parent, subsidiary or subcontracting companies leads to a situation where the interests of the workers cannot necessarily be resolved with their direct employer, yet the undertaking of industrial action may lead to the resolution of their legitimate claims. In this regard, the Committee recalls its position that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful and hopes that the Government will provide information in its next report on the TUC's comments on this matter.

4. Dismissals in connection with industrial action. In its previous comment, the Committee had drawn the Government's attention to paragraph 139 of its General Survey of 1994 on freedom of association and collective bargaining in which it noted that sanctions or redress measures were frequently inadequate when strikers were singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal) and that this raised a particularly serious issue in the case of dismissal if workers could only obtain damages and not their reinstatement. The Committee indicated that legislation should provide for genuine protection in this respect, otherwise the right to strike would be devoid of content. The Committee added that it was awaiting both the Government's detailed report under Convention No. 98, as well as the Government's reply to the TUC comments under Convention No. 87 with respect to this matter in order to assess fully the impact of the law and practice with respect to these Conventions.

The Committee notes that the Government, in its latest report, simply refers to its report under Convention No. 98 and does not respond to the TUC's previous comments under Convention No. 87. The Committee therefore requests the Government to provide information in its next report under this Convention in respect of the TUC's comments concerning the interpretation by the Industrial Tribunal of section 238 of the TULRA with respect to the Arrowsmith printing company in Bristol.

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

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

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

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

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

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

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

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

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

Further to its previous observation, the Committee notes the detailed discussion which took place at the Conference Committee in June 1995 on the issue of the right to organize of workers at the Government Communications Headquarters in Cheltenham (GCHQ).

The Committee notes in particular that the Conference Committee had hoped it would be possible, with the exercise of common sense and goodwill, for a satisfactory resolution of this case to be reached in the near future and had invited the Government to receive an ILO advisory mission to help this process.

In this context, the Committee takes note of a communication from the Government in which it reaffirms that it has engaged in negotiations with the civil service trade unions over a period of years in a genuine effort to find a solution which would both safeguard national security and meet the unions' concerns. The Government emphasizes that a number of specific proposals have already been explored and that it is prepared to continue to discuss these and any other proposals the trade unions wish to put forward. For the Government, it is not immediately clear what practical contribution an ILO advisory mission could make. Nevertheless, the Government is prepared for officials to make contact with the Office in this respect.

The Committee also takes note of a communication from the Trades Union Congress alleging the absence of any initiative on the part of the Government to find a solution which conforms to Convention No. 87 as well as the absence of any measures taken by it following the discussion of this case at the Conference Committee. Furthermore, the Committee notes the Government's reply in which it refutes these observations and confirms that it remains ready to continue discussions.

The Committee expresses the firm hope that in-depth discussions between the Government and the trade unions concerned will allow the issue of the right to organize of GCHQ workers to be resolved in a manner that is satisfactory to the parties and in accordance with Article 2 of the Convention. The Committee is convinced that an ILO advisory mission could make a useful contribution in resolving this issue.

It requests the Government to provide information in its next report on developments in respect of the situation at the GCHQ as well as on the other points which were raised in its previous observation: unjustifiable discipline; immunities in respect of civil liability for strikes and other industrial action; dismissals in connection with industrial action; and detailed regulation of the internal functioning of workers' organizations.

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

The Committee takes note of the information provided in the Government's latest report as well as the comments made by the Trades Union Congress (TUC) in a communication dated 10 January 1995 which have been sent to the Government for its observations.

1. Dismissal of workers at the GCHQ. In its previous comment, the Committee noted the resumption of dialogue between the Government and the unions concerning the right to organize for GCHQ workers and expressed the firm hope that these discussions would lead to a positive outcome which was satisfactory to both parties. From the information provided in the Government's latest report, it appears that the last discussion which took place on this matter was during a meeting between the Prime Minister and the unions in December 1993. According to both the Government and the TUC these discussions unfortunately did not lead to any agreement. At this meeting, the Government had indicated its willingness to enable the Government Communications Staff Federation (GCSF) (the workers' organization accepted by the Government at GCHQ) to affiliate with the Council of Civil Service Unions (CCSU) thus permitting the staff of GCHQ to be represented in discussions between the Government and the Civil Service Unions on matters affecting the civil service generally. The Government also indicated during this meeting that the possibility had not been ruled out that, as part of their proposal, the requirement for the GCSF to have the approval of the Director of GCHQ might be withdrawn. For its part, the TUC has indicated that any arrangement which excludes the possibility of GCHQ staff from joining an independent union would not be satisfactory.

The Committee also notes the indication in the Government's report however that it could not accept a proposal to allow GCHQ staff to rejoin one of the national civil service unions since it would risk the staff once again being exposed to a conflict between their loyalty to their employer and their loyalty to their trade union, a risk which would not be removed by an undertaking on the part of the unions not to call GCHQ staff out on strike because any such undertaking could subsequently be repudiated, as had been done in the past. For its part, the TUC indicated that, during the meeting with the Prime Minister, it repeated its previous assurances and additionally pointed out the legal changes which required a ballot before a call for industrial action. In this regard, the Committee recalls from its previous comments that workers whose functions relate to security matters would fall into the category of those in respect of whom it is permissible to prohibit by legislation the right to strike. The question of the right to strike for GCHQ staff and of the right to organize are however separate matters.

As concerns the Government's statement in its report that the Intelligence Services Act (ISA) of 1994 places the GCHQ on a statutory basis together with the intelligence service and that the functions carried out by the GCHQ are, in many other countries, carried out by the military, either directly or indirectly even though they are sometimes staffed by a mixture of civilian and military personnel, the Committee notes the provision in the ISA that GCHQ shall continue to be under the authority of the Secretary of State. While the examples given by the Government concerning other countries described situations in which the organizations concerned were either run by the military or under the authority of the Department of Defence or its equivalent, it does not appear from the ISA that this is the case for GCHQ. The Committee therefore considers that GCHQ staff cannot be considered to be members of the armed forces for the purposes of exclusion under Article 9.

Finally, as concerns the Government's renewed argumentation with respect to the interrelationship of Conventions Nos. 87 and 151, the Committee recalls its previous comments in this regard and considers that the points raised by the Government do not call for any further examination of the question.

Given the above considerations and noting that the Government's proposal remains firm that GCHQ staff can only be represented by GCSF, the Committee recalls that these workers should be guaranteed the right to establish and to join organizations of their own choosing, in accordance with Article 2 of the Convention. Furthermore, given the apparent lack of recent direct dialogue on these matters, it once again urges the Government to take steps to resume discussions with the unions with the aim of finding a satisfactory solution to all parties concerned.

2. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) Act)). The Committee recalls that the previous comments in this matter concerned the above-mentioned provisions of the 1992 Act which prevented trade unions from disciplining their members who refused to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action. The Committee noted that while, technically, these sections imposed no direct or explicit limitation on what may or may not be included in trade union rules, trade unions would face serious financial penalties for taking disciplinary measures against a member for such action. It considered that these provisions removed the right of trade unions to express their dissatisfaction with their members who refused to comply with or sought to subvert democratic decisions by other union members to take lawful industrial action and requested the Government to amend these provisions with this in mind.

In its latest report, the Government states that the effect of disciplinary penalties imposed on members by their union could be much more serious than those which would follow from the mere "expression of dissatisfaction" in so far as such penalties were designed to persuade members in general that, by their own free choice, they ought not to be honouring their contract of employment when called upon the union not to do so and this should not be condoned by the law; there is no demonstrable evidence to show that the relevant provisions have, in practice, done any damage to the "normal functioning of trade unions"; the legislation only proscribes certain specific forms of discipline as unjustifiable. The Government then concludes that there is no need to amend sections 64-67 of the 1992 Act.

The Committee nevertheless stresses that the right of workers' organizations to draw up their constitutions and rules guaranteed by Article 3 of the Convention includes the right (without threat of serious financial penalties upon the application of their rules) of unions, when drawing up their constitutions and rules, to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action or who seek to persuade fellow members to refuse to participate in such action. The Committee asks the Government to refrain from any interference which would restrict the right of workers' organizations to draw up their constitutions and rules freely.

3. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the 1992 Act). The Committee recalls that its previous comments concerned the above-mentioned provisions which removed the immunities which existed previously in respect of, among others: (a) the organization of certain forms of "secondary action" (i.e. action by workers having no dispute with their own employer); and (b) the organization of industrial action in support of employees dismissed while taking part in "unofficial" industrial action. In its report, the Government maintains its view that nothing in the Convention requires the law to give special protection against proceedings concerning the organization of industrial action among workers who have no dispute with their own employer. The Government indicates that there are no relevant reported judgements and concludes that there is no need to amend these provisions.

The Committee draws the Government's attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers' right to carry out sympathy strikes. Furthermore, the Committee considers that industrial action for a worker dismissed for "unofficial" industrial action falls into the category of protest strikes the exercise of which should not be excessively limited by unrestricted tort proceedings. Noting the indication made by both the Government and the TUC that court judgements were only one means of assessing the practical impact of a particular piece of legislation (and therefore implicitly assuming that the legislation may in any event have an impact on a union's decision to take the industrial action in question), the Committee requests the Government to consider amending these provisions so as to accord adequate protection of the right of workers' organizations to engage in these legitimate forms of industrial action.

4. Dismissals in connection with industrial action. In its previous comment, the Committee, in view of the Government's request and given that some of the issues raised under this heading might be the subject of other instruments, indicated that it would deal with this related issue in its examination of the Government's report under Convention No. 98. In the meantime, it invited the Government and the TUC to provide particulars on the legal and factual situation in this respect. The Committee again notes from the Government's report that it understands questions of dismissal and other disciplinary action taken by an employer against workers who have engaged in industrial action not to be relevant to the guarantees afforded by Convention No. 87. The Government has also supplied a list of relevant court cases and concluded that no further comment on this matter was necessary in the context of the present report. The Committee also notes the detailed information provided by the TUC in its communication of 10 January 1995 concerning the impact of such dismissals upon the application of Convention No. 87. In this regard, the Committee would draw the Government's attention to paragraph 139 of its 1994 General Survey in which it notes that sanctions or redress measures are frequently inadequate when strikers are singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal) and that this raises a particularly serious issue in the case of dismissal if workers may only obtain damages and not their reinstatement. In the Committee's view, legislation should provide for genuine protection in this respect, otherwise the right to strike may be devoid of content. The Committee is awaiting both the Government's detailed report under Convention No. 98 as well as the Government's reply to the TUC comments under Convention No. 87 with respect to this matter in order to assess fully the impact of the law and practice with respect to these Conventions.

5. Detailed regulation of the internal functioning of workers' organizations. The Committee notes that, since its last substantive examination of the application of this Convention, the Government has adopted yet more detailed regulations concerning the internal functioning of workers' organizations. It has taken due note of the need evoked by the Government in its report to regulate these various matters. It has also noted the comments made by the TUC concerning a number of other provisions in the 1993 Act which it considers to interfere with its rights under Article 3 of the Convention. While the Committee considers that some of the provisions noted by the TUC do not technically constitute a violation of the Convention (e.g. section 15 of the 1993 Act with respect to check-off facilities or the extension of the notion of "unjustifiable discipline" in section 16 to include when members fail to agree to or withdraw from check-off arrangements, resign from a union and become or propose to become a member of another union, work with non-members, and work for an employer who employs non-members), the continuing regulation of the smallest details of the internal functioning of workers' organizations may reach a point where the cumulative effect of such regulation, by virtue of its detail, complexity and extent, nevertheless constitutes an interference in the rights of such organizations under Article 3 of the Convention.

In this regard, the Committee would draw the Government's attention to paragraph 135 of its 1994 General Survey which provides that legislative provisions which regulate in detail the internal functioning of workers' and employers' organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest autonomy is left to the organizations in their functioning and administration.

6. The Committee is raising a number of other points in a request addressed directly to the Government.

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

In its previous observation, the Committee, amongst other things, had noted with interest a resumption of the dialogue on the question of the right to organize of workers at the Government Communications Headquarters in Cheltenham (GCHQ). It expressed the firm hope that this would lead to a positive outcome satisfactory to both parties.

In a communication of 23 December 1993, the Trades Union Congress (TUC) presents its comments concerning this issue indicating, in particular, that in its view the Government still refuses to conform with the requirements of the Convention and the recommendations of the supervisory bodies.

In its reply dated 8 February 1994, which was received by the Office as the Committee had already begun its regular session, the Government indicates that further contacts and discussions have taken place with the unions on this issue since the Government last reported to the Committee in February 1993, and that this is a clear demonstration of the Government's determination to try to make progress on this difficult matter. The Government further indicates that it will report in detail on all the developments since February 1993, including a detailed response to the points raised in the TUC's letter, when it next reports to the Committee on the application of this Convention.

The Committee notes the comments submitted by the TUC and the Government's reply. It will examine the substance of this issue at its next session in the light of the Government's forthcoming report, together with the other points raised in its previous observation.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the Government's report and complementary information. It also notes the extensive discussion which took place in 1992 at the Conference Committee concerning mostly the situation at the Government Communications Headquarters in Cheltenham (GCHQ), as well as the comments made by the Trades Union Congress (TUC) in several communications in 1992.

1. Dismissal of workers at the GCHQ

In its previous observation, the Committee had urged the Government rapidly to resume constructive discussions calculated to lead, through genuine dialogue, to a compromise acceptable to both sides on this issue which it first considered in 1985. At its 1992 session, the Conference Committee, whilst deploring that certain initiatives had not resulted yet in a genuine dialogue, took note of the Government's stated intention to reach a solution on this question, and expressed the firm hope that this statement would be rapidly followed by a substantive, frank and constructive dialogue, carried out in good faith, so that a solution could be found to this problem, in full conformity with the Convention.

The Committee notes that, following the Conference, in an exchange of letters between the TUC and the Government, the latter reiterated that it continued to attach fundamental importance to the safeguarding of security and the continuity of essential operations at GCHQ, and could not contemplate any change in trade union membership or representation at GCHQ which risked disruption to these operations, or conflicts of loyalty for staff. Whilst stating that there could be no guarantee that a solution acceptable to both parties could be found, the Government indicated that it was ready to consider carefully any proposal compatible with its basic position. In this respect, the Committee noted with interest that, according to the Government, high-level meetings took place between the Government and the unions in October 1992 and January 1993, and that other contacts are expected to follow.

The Committee also noted that the Government Communications Staff Federation (GCSF), the workers' organization accepted by the Government at the GCHQ, had filed an appeal to the Employment Appeal Tribunal (EAT) against the decision of the Certification Officer that they should not be awarded a certificate of independence. The EAT dismissed the GCSF appeal in its decision of 10 December 1992.

The Committee notes with interest a resumption of the dialogue in this matter and firmly hopes that it will lead to a positive outcome that is satisfactory to both parties. It requests the Government to keep it informed on developments in its next report.

2. Unjustifiable discipline (sections 64-67 of the Act of 1992)

The Committee recalls that its previous comments in this matter concerned the provisions (formerly section 3 of the 1988 Act) that prevented trade unions from disciplining their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action. In its previous observation, the Committee requested the parties to provide particulars on the exact scope of these provisions and on their application in practice.

In its report, the Government:

- confirms that sections 64-67 of the 1992 Act impose no limitation on what may, or may not, be included in a union's rules;

- states that unions remain free to adopt any rules they wish, subject to the need to respect fundamental human rights and the law of the land, and that it considers it right, therefore, that the law should provide a remedy to prevent individuals being exposed to excessive pressure and penalties for refusing to act unlawfully against their convictions by breaking contracts of employment to which they are party;

- mentions it is aware of more than 240 cases where, since the passage of the 1988 Act, individual union members have complained to industrial tribunals they had been so disciplined (complaints upheld in 130 cases);

- gives examples of judicial decisions concerning certain disciplinary action taken against trade union members by their union, for crossing picket lines during a strike.

In its communication of 24 December 1992, the TUC states that, although trade unions may still adopt their own rules on disciplinary procedures to deal with strike-breakers, they are unable to apply them legally. It also gives examples on how the law is applied in practice.

The Committee agrees with the Government that, technically, sections 64-67 impose no direct or explicit limitation on what may or may not be included in trade union rules. However, section 66(1) allows individual union members to complain to an industrial tribunal that they have been "unjustifiably disciplined" within the meaning of section 65(1), which includes in particular disciplinary measures, by a union, against a worker who crossed picket lines set up by fellow union members during a strike. The judicial decisions specifically mentioned by the Government and the TUC demonstrate that, while trade unions are "free" to adopt any rules they wish in this respect, they face serious financial penalties if and when they enforce them.

The Committee considers that these provisions remove the right of trade unions to express their dissatisfaction with their members who refuse to comply with, or seek to subvert democratic decisions by other union members to take lawful industrial action. The Committee requests the Government seriously to take into consideration the damage that could result therefrom for the normal functioning of trade unions, within the framework of the existing industrial relations system. It requests the Government to consider amending the said provisions, so that trade unions may be allowed really to express their dissatisfaction with members who refuse to comply with democratic decisions to take lawful industrial action.

3. Indemnification of union members and officials (section 15 of the 1992 Act)

The Committee recalls that its previous comments in this matter concerned the provisions (formerly section 8 of the 1988 Act) which make it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence for contempt of court, and provide for recovery by the union of any sums improperly paid by way of such indemnity. In its previous observation, the Committee requested the parties to supply it with information on the practical application of these provisions, in particular by providing the texts of quasi-judicial or judicial decisions issued in these matters.

In its report, the Government:

- reiterates that where an individual merely acts as a passive "agent" of a union, any penalty for an offence is likely to be imposed upon the union, but where a penalty is imposed on an individual this would imply a clear finding of wilful and unlawful action by that individual;

- states that the language of the statute (which refers explicitly to the application of union funds towards the payment for an individual of a penalty imposed "for an offence or for contempt of court") means that these provisions are relevant only to indemnification for a criminal offence or for contempt of court;

- reports that it is unaware of any: (i) judicial decision whereby a court has imposed a penalty on an individual in such circumstances; (ii) actual court proceedings brought by union members under section 15(3) of the 1992 Act, i.e. to obtain authorization from a court to recover the value of an unlawful indemnity on the union's behalf and at the union's expense.

In its communication of 24 December 1992, the TUC states that it is unaware of any cases under the above-mentioned provision.

The Committee takes due note of all the information submitted. Whilst it remains unclear as to the exact significance and potential impact of the distinction made by the Government between "passive agents" and individuals, it notes that so far, the courts have not issued decisions which would confirm its earlier concern that section 15 might, in practice, be applied in a way which violates the Convention. The Committee invites the Government in its future reports, and the TUC in their future observations, to keep it informed of the practical application of this provision.

4. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the 1992 Act)

The Committee recalls that its previous observations in this matter concerned the provisions (formerly sections 4 and 9(2) and (3) of the 1990 Act) which removed the immunities (or, more accurately, "protections") which existed previously in respect of, among others: (a) certain forms of "secondary action" (i.e. action by workers having no dispute with their own employer); (b) industrial action organized in support of employees dismissed while taking part in "unofficial" industrial action. The Committee made comments on this subject in 1989 and 1991, and in 1992, requested the Government to provide full particulars on the objective and effects of these provisions.

Referring to its previous replies, the Government stresses in its report that it cannot find in the Convention any authority for the conclusion that calling for, or otherwise organizing, these particular forms of industrial action ought to have legal protection.

The Committee examined carefully the Government's elaborate reply, as well as the supporting material (intended for trade unions, employers and interested persons) explaining in lay terms the legal situation before and after the above-mentioned amendments, and their implications. The position now is that there is no immunity for organizing "secondary" industrial action (sometimes called "sympathy" or "solidarity" action), other than inducement in the course of peaceful picketing; immunity has also been removed in respect of industrial action organized in support of employees dismissed while taking part in "unofficial" industrial action.

The Committee refers to the detailed analysis in its 1989 observation on this issue, and to its following observations, where the legal positions of both the Government and the TUC were extensively described. In order to make a fully informed decision, it requests them to supply particulars on the application in practice of sections 223 and 224 of the 1992 Act, in particular by providing the texts of judgements or quasi-judicial decisions involving the application of these statutory provisions.

5. Dismissals in connection with industrial action

In view of the Government's request and given that some of the issues raised under this heading may be the subject of other instruments, the Committee will deal with this related issue in its next examination of the Government's report under Convention No. 98. It invites the Government and the TUC to provide in the meantime 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.

6. Complexity of the legislation

In its previous observations, the Committee had expressed its concern at the volume and complexity of legislative changes since 1980 in relation to the matters covered by the Convention, a concern which was reiterated by the workers' members at the 1992 Conference.

The Committee notes with interest that, in keeping with the assurances given by the Government at the 1992 Conference, the Trade Union and Labour Relations (Consolidation) Act 1992, was adopted and came into force in October 1992. This document does bring together much existing employment legislation. The Committee hopes that, together with the free booklets published by the Government, explaining the legislation as it applies to employers, workers and trade unions, it will contribute to a better understanding of the legislation by all parties concerned.

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

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

I. Dismissal of workers at the GCHQ

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Article 3 of the Convention

General

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

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

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

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

- dismissals in connection with industrial action; and

- complexity of the legislation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In its report, the Government:

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

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

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

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

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

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

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

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

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

In its report, the Government:

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

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

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

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

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

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

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

4. Dismissals in connection with industrial action

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Complexity of the legislation

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

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

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

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

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

1. The Committee notes the Government's report. It also notes: (i) the discussion which took place in the Conference Committee in 1989; (ii) the comments of the Trades Union Congress (TUC) in a number of communications in 1989 and 1990; (iii) the further comments of the Committee on Freedom of Association in relation to Case No. 1261 (275th Report of the Committee, November 1990, paragraph 11); and (iv) the conclusions of the Committee on Freedom of Association in Case No. 1540 (277th Report of the Committee, February-March 1991, paragraphs 47 to 98).

2. Dismissal of workers at Government Communications Headquarters (GCHQ)

By its communications of 21 December 1989 and 14 June 1990 the TUC states that, following the discussion in the Conference Committee in 1989, it had written to the Prime Minister indicating that the trade unions would adopt a constructive approach to negotiations in relation to the GCHQ issue so that the Government could honour its commitments under Convention No. 87 and at the same time meet its requirements regarding the maintenance of services at GCHQ. According to the TUC, the Prime Minister did not make any response to the proposal that discussions should be reopened as suggested by the Committee of Experts and the Conference Committee.

In its report the Government reiterates its view that the provisions of Convention No. 87 must be read subject to those of Convention No. 151 and that the work performed by civilian staff at GCHQ falls within the "spirit" of the "armed forces exemption" in Article 9 of Convention No. 87.

As concerns the Committee's suggestion that it should undertake renewed negotiations with the relevant unions, the Government states that it remains unconvinced that to do so would serve any useful purpose. It points out that discussions were held immediately after the Government's announcement in January 1984 that workers at GCHQ were no longer to be permitted to be members of national trade unions. In the course of those discussions the unions had urged that a "no disruption agreement" would provide adequate safeguards in relation to continuity of service at GCHQ. These proposals were given very careful consideration by the Government, but had to be rejected as they did not provide sufficient guarantee that conflicting pressures would not produce difficulties in the future. This conclusion was supported by the fact that the draft agreement submitted by the Council of Civil Service Unions was subsequently repudiated by two of the main unions concerned because they were not prepared to contemplate the conclusion of a "no-strike agreement" at GCHQ. The Government acknowledges that the unions have subsequently indicated that they might change their position on this point. According to the Government, this possibility itself supports its position in relation to the futility of reopening discussions on this matter.

The Government goes on to point out that employees at GCHQ are permitted to join the Government Communications Staff Federation (GCSF), and that over 50 per cent of them have in fact done so. In its communications of 21 December 1989 and 14 June 1990 the TUC points out that the Certification Officer (who is an independent statutory officer responsible for certain administrative matters relating to trade unions and employers' associations) had declined to issue the GCSF with a certificate of independence. According to the TUC, this decision underlines the fact that employees at GCHQ are denied even the basic right to belong to an independent trade union.

The Government states that this decision, which is presently under appeal, does not mean that the GCSF is not a "trade union". On the contrary, it is entered on a statutory "list" of trade unions but it is true that the union and its members do not enjoy certain statutory rights in relation to matters such as occupational health and safety, consultation in advance of redundancies, etc. However, according to the Government, management at GCHQ in practice extends to the GCSF facilities which are "at least equivalent" to almost all of these statutory entitlements.

The Committee can only express its regret at the apparent lack of progress in relation to this matter which was first considered by it in 1985. It remains of the opinion that, under the legislation presently in force, workers at GCHQ cannot be regarded as members of the "armed forces" for purposes of the application of Article 9 of the Convention. The Committee notes that attempts to obtain a "no-strike" agreement in 1984 were unsuccessful. Nevertheless, recalling that workers whose functions relate to security matters would fall into the category of those in respect of whom it is permissible to curtail the right to strike, the Committee considers that these workers should not be denied the right to belong to the organisations of their own choosing as guaranteed by Article 2 of the Convention.

The Committee notes that more than 50 per cent of workers at GCHQ have elected to join a body which possesses some, but not all, of the characteristics of a trade union under British law and which is treated by management in the same manner as if it were a fully-fledged trade union. The fact that workers at GCHQ are permitted to join this organisation, but no other, seems to indicate that the Government does not object to trade union membership per se among those workers, but rather that it has continuing objections to membership of certain unions.

Recalling that it is now more than six years since the Government last held formal discussions with the unions on this matter, and noting the stated preparedness of the TUC to adopt a positive approach to renewed negotiations, the Committee considers that the time is right for a resumption of dialogue; accordingly, it again urges the Government to reconsider its position in relation to the reopening of discussions with public service unions with a view to determining whether it might be possible to arrive at satisfactory arrangements in relation to the maintenance of an appropriate level of service at GCHQ at all times.

3. Article 3 of the Convention

(a) General

In its 1989 observation the Committee identified a number of incompatibilities between the Employment Acts of 1980, 1982 and 1988 and the Trade Union Act of 1984 and the requirements of the Convention. These incompatibilities related to: (i) the concept of "unjustifiable discipline" as set out in section 3 of the 1988 Act; (ii) section 8 of the 1988 Act concerning the indemnification of trade union members and officials; (iii) the erosion of legislative protection against civil liability for industrial action; and (iv) dismissals and disciplinary action in connection with participation in strikes and other industrial action. The Committee also noted: (a) that certain provisions which it considered not to be incompatible with the Convention - notably those relating to the Commissioner for the Rights of Trade Union Members - could be applied in a manner which was not in conformity with the letter or spirit of the Convention; and (b) the volume and complexity of legislative change since 1980.

The Committee notes the observations of the Government on these points.

(b) "Unjustifiable discipline" and section 3 of the 1988 Act

The Committee considered that section 3(3)(c) of the 1988 Act, which states that trade unions may not discipline members who, in good faith, assert that their union has breached its own rules or the law of the land, was not incompatible with Article 3 of the Convention. It had, however, concluded that those parts of section 3 which deprive trade unions of the right to discipline their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action, constituted an impermissible incursion upon the guarantees provided by Article 3.

In its report, the Government states that it finds it difficult to understand why the Committee considers section 3(3)(c) to be compatible with the Convention, but that the provisions relating to strikes and other industrial action are not. In the opinion of the Government the purpose of section 3 is to ensure that trade unions respect the views of individual members and allow them the freedom to make up their own minds and follow their own consciences without the fear of disciplinary action by their union.

The Committee notes the observations of the Government in relation to this matter. It remains of the view, however, that the provisions of section 3 prohibiting unions from disciplining their members who refuse to take part in lawful industrial action restricts the capacity of organisations of workers to draw up their constitutions and rules as guaranteed by Article 3 of the Convention. The Committee considers that it should be for the members of organisations themselves to decide what the rules of those organisations are to be. The Committee agrees that the guarantees provided by Article 3 are conditioned by respect for fundamental human rights, such as the right not to be subjected to discriminatory treatment on grounds of race or sex. However, the Committee considers that it is not compatible with the Convention to prevent the members of a trade union from freely adopting rules which provide for the imposition of disciplinary sanctions upon members of the union who refuse to comply with or seek to subvert democratic decisions by members of the union to take lawful industrial action. The Committee therefore requests the Government to revise its legislation so as to permit unions and their members to adopt and implement such rules if they so choose.

(c) Indemnification of union members and officials

Section 8 of the 1988 Act makes it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence or for contempt of court, and provides for the recovery by the union of any sums improperly paid by way of such indemnity. In its 1989 observation the Committee concluded that this provision appeared to be incompatible with Article 3 of the Convention.

In its report the Government states that it considers that it is wrong in principle for a trade union to be able, with impunity, to use its funds to indemnify any individual in respect of a penalty imposed by a court for a criminal act or for contempt of court. It also states that nothing in section 8 involves interference by the public authorities in the capacity of trade unions to draw up their constitutions and rules and to organise their administration and activities as they see fit.

The Committee recognises that section 8 does not expressly state that unions may not adopt rules to this effect, but it appears to achieve the same effect by virtue of the fact that any payments made in accordance with any such rule may be recovered in accordance with subsections (2) and (3) of section 8. Accordingly, the Committee considers that the legislation should be amended so as to allow the adoption and implementation of rules which permit the indemnification of members or officials in respect of legal liabilities they may have incurred on behalf of the union.

(d) Immunities in respect of civil liability for strikes and other industrial action

In its 1989 observation the Committee pointed out that amendments which had been introduced since 1980 had the effect of removing protection against common law liability from certain forms of industrial action in respect of which it considered that protection ought to be available. In particular: (i) it was now virtually impossible for workers and unions lawfully to engage in any form of boycott activity or sympathetic action against parties not directly involved in a given dispute; (ii) the protections no longer applied to situations where unions and their members had "mixed" industrial, social and political motives for what they did; (iii) the definition of "trade dispute" was such that it was impossible for workers and unions to take effective industrial action in situations where the "real" employer with whom they were in dispute took refuge behind one or more subsidiary companies which were technically the "employer" of the workers concerned, but which lacked the capacity to take decisions which could effectively resolve the dispute; and (iv) there was very little scope for workers to take industrial action in the United Kingdom in support of workers outside that country, or to protest the social or racial policies of a government with which the United Kingdom had trade or economic links. Accordingly, the Committee asked the Government to introduce amendments which would enable workers lawfully to take industrial action against their "real" employer and which accorded adequate protection to the right to engage in other legitimate forms of industrial action such as protest and sympathy strikes.

In its report the Government states that the Committee's observation fails to take adequate account of the differences in British law as it applies to the position of persons taking industrial action as opposed to the position of those who call for or organise such action. It points out, for example, that section 16 of the Trade Union and Labour Relations Act, 1974 prevents courts from ordering workers to work or attend for work in any circumstances, whilst other provisions provide legislative protection for those who organise industrial action in contemplation or furtherance of a trade dispute or who call upon workers of an employer other than that directly involved in the dispute not to cross a lawfully conducted picket-line. The Government also considers that it is far from clear exactly what amendments to current legislation the Committee considers necessary in order to ensure compatibility with the Convention.

The Committee recognises that British legislation provides a significant measure of protection against common law liability for individuals and trade unions who organise or participate in certain forms of industrial action, and that workers cannot be ordered to return to, or remain at, work. However, it remains of the view that some of the legislative changes which have been introduced since 1980 have had the effect of withdrawing statutory protection from various forms of industrial action which, in its opinion, ought not to attract legal liability. It must, therefore, repeat its request that the Government introduce legislation, following consultation with the Office if need be, to enable workers and their unions to engage in industrial action in the circumstances discussed in detail in the Committee's 1989 observation, and summarised above.

In communications of 19 January and 21 December 1990, the TUC states that the Employment Act, 1990 is not in conformity with the Convention by virtue of the fact that it further narrows the range of situations in which workers may lawfully take secondary action. The Government states that since this measure received the Royal Assent outside the period covered by its report, it would not be appropriate to respond at this time to particular points which relate to it. The Committee asks the Government to supply full particulars as to the purpose and effect of this measure in its next report.

(e) Dismissals in connection with industrial action

In its 1989 observation the Committee had asked the Government to introduce legislative protection against dismissal and other forms of discriminatory treatment in connection with strikes and other industrial action so as to bring law and practice into conformity with the requirements of the Convention. The Committee notes that the Committee on Freedom of Association reached the same conclusion in Case No. 1540.

In its report the Government points to a number of features of British industrial relations law and practice which in its opinion make it unnecessary or inappropriate to introduce legislative measures such as those requested by the Committee in its previous observation.

Whilst noting the views expressed by the Government in its report, and in its observations to the Committee on Freedom of Association in relation to Case No. 1540, the Committee remains convinced that conformity with the Convention requires that workers should enjoy effective legislative protection against dismissal or other disciplinary action in respect of their participation or proposed participation in strikes or other forms of industrial action.

As concerns the effects of the Employment Act, 1990, in this context, the Committee notes that in its decision in Case No. 1540 the Committee on Freedom of Association concluded that section 62A of the Employment Protection (Consolidation) Act - which was inserted by section 9 of the 1990 Act - "does appear to narrow the scope of protections which the Committee has already determined to be inadequate in terms of respect for the principles of freedom of association", and called upon the Government to introduce suitable legislative amendments to bring section 62A into conformity with those principles (277th Report, paragraph 96). The present Committee endorses the conclusions of the Committee on Freedom of Association in this respect.

(f) Complexity of the legislation

In its 1989 observation the Committee expressed its concern at the volume and complexity of legislative change in relation to the matters covered by the Convention since 1980, and suggested that some reconsideration of the form and content of the legislation would be advantageous. The Committee notes that since that time the Employment Acts of 1989 and 1990 have affected further change in this area.

In its report the Government considers that the Committee underestimates the advantages in the British context of utilising the familiar framework of the common law, and the problems which could follow from an attempt to adopt a different approach to the implementation of the guarantees embodied in the Convention to that which has consistently been pursued over the years. The Government attaches to its report a number of examples of free explanatory booklets which explain the relevant legislation as it applies to employers, workers and unions, in order to show that the law is in fact readily intelligible to those whom it most directly affects. It also indicates that it keeps under active review the possibility of introducing consolidating legislation which would bring together in one Act all of the provisions relating to industrial relations and trade unions which are at present to be found in a number of different pieces of legislation. It states that it would be willing to bring the necessary legislation forward when resources and the legislative timetable permit, but points out that such a measure would not make any substantive changes to the relevant law.

The Committee notes with interest that the Government is prepared to consider the introduction of a consolidation measure when time and resources permit. Whilst appreciating that such measures do not normally effect substantive legal change, the Committee nevertheless considers that the Government should use the occasion of such a consolidation to bring its law and practice fully into conformity with the requirements of the Convention, and asks it to report on any measures taken in this regard.

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

The Committee notes the comments concerning the application of the Convention submitted by the Trades Union Congress (TUC) on 21 December 1989 and 19 January 1990. These comments relate to: (i) trade union rights at Government Communications Headquarters (GCHQ); (ii) the Government's alleged failure to adopt measures to extend legislative protection against common law liability and to reduce the current complexity of the law relating to industrial action; (iii) the further uncertainties which have been introduced by court decisions in relation to a proposed docks strike in May-July 1989; and (iv) proposed legislative changes relating to sympathy action and dismissals of strikers.

The communications of the TUC have 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.

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

1. The Committee notes the information set out in the Government's report, and the observations of the Trades Union Congress (TUC) which were contained in a letter dated 13 January 1989. The Committee also notes the information supplied by a Government representative to the Conference Committee in 1988 and the subsequent discussion thereon, together with the further comments of the Committee on Freedom of Association in relation to Case No. 1261 (259th Report of the Committee, approved by the Governing Body in November 1988, paragraph 14).

2. Dismissal of workers at Government Communications Headquarters (GCHQ)

The Committee notes with regret that 13 employees at GCHQ have now been dismissed because of their refusal to give up membership of the union of their choice. The Committee notes that the Government remains of the view that Convention No. 87 cannot be examined in isolation from Conventions Nos. 98 and 151, and that Article 1(2) of the latter takes precedence over Convention No. 87. The Committee must again remind the Government that the supervisory bodies of the ILO have consistently taken the view that this is not the case, and that Article 2 of Convention No. 87 guarantees to all workers without distinction whatsoever, including public servants, the right freely to establish and to join organisations of their own choosing.

The Committee also notes that the Government considers that the functions carried out by the staff of GCHQ are in many cases identical with those carried out by members of the armed forces working in the same field. In support of this proposition the Government refers to the decision of the European Commission of Human Rights in Case No. 11603/85. The Government seems to suggest that this means that the civilian workforce at GCHQ should be regarded as falling within the scope of the "armed forces" exemption in Article 9 of the Convention. In this connection the Committee must point out that it has always taken the view that the armed forces and the police are the only categories of workers which, in accordance with the Convention, may be excluded from the guarantees provided therein (General Survey, 1983, paragraph 89). For these purposes, only workers who are recognised under national law or regulations as forming part of the army or the police can be regarded as coming within the scope of the exemption. This does not appear to be the case in relation to civilian employees at GCHQ.

The Committee notes with regret that the Government still feels that no useful purpose would be served by renewed negotiations with the relevant trade unions. The Committee remains of the view that such negotiations offer the most appropriate means of providing a resolution to this issue which is consistent with the requirements of the Convention. In the light of the foregoing, the Committee can only: (1) urge the Government to reconsider its position on the usefulness of further negotiations; and (2) reiterate that workers at GCHQ are entitled to join the organisation of their own choosing in accordance with Article 2 of the Convention.

3. Article 3 of the Convention

(a) General

The Committee notes that the Employment Act of 1988 received the Royal Assent on 26 May 1988. It thus became the fourth major piece of industrial relations legislation in the United Kingdom since 1980 (the others being the Employment Act of 1980, the Employment Act of 1982 and the Trade Unions Act of 1984).

This clearly suggests that the Government has engaged in a systematic attempt to restructure industrial relations law in the United Kingdom. The first and second measures in this legislative programme were principally concerned with the regulation of certain forms of strikes and other industrial action (notably, picketing and "secondary action"), and with union security arrangements. The Acts of 1984 and 1988 were more concerned with the internal rules and practices of trade unions.

The Committee fully recognises that the reform of the law on labour relations is both legitimate and necessary in order to ensure that the industrial relations system operates in an equitable and efficient manner, and that it adequately reflects current social and economic needs. Legislative change cannot, therefore, be criticised simply because it attempts to alter the status quo. However, where the position of organisations of employers and workers is altered to their disadvantage, then it is incumbent upon the Committee carefully to examine those changes in order to ensure that they are not incompatible with the guarantees provided by the Convention.

Given the nature and scale of legislative change in recent years, the Committee considers that it is now appropriate to examine the overall effect of the Acts of 1980, 1982, 1984 and 1988, and to consider whether they are consistent with the requirements of the Convention, with special reference to Article 3.

In carrying out this examination, the Committee has taken note of the complaint presented to the Committee on Freedom of Association by the Trades Union Congress (supported by the International Confederation of Free Trade Unions), the National Union of Mineworkers and the International Mineworkers' Organisation. This complaint (Case No. 1439) was contained in communications dated 22 February, 14 September, 2 November and 20 December 1988. The Committee has also taken note of the Government's response to this complaint as set out in communications dated 23 March 1988 and 16 January 1989. The Committee further notes that, at its meeting in February-March 1989, the Committee on Freedom of Association decided to adjourn its consideration of Case No. 1439 pending the examination of the relevant legislation by this Committee (262nd Report of the Committee on Freedom of Association, paragraph 9).

(b) Overall impact of the legislation

The Committee considers that there is no incompatibility between Article 3 and a number of aspects of the legislation which were challenged by the complainants in Case No. 1439: (i) the election of union officers; (ii) the removal of union trustees; (iii) union members' right of access to their union's accounting records; (iv) political expenditure by trade unions; (v) exclusion or expulsion from a union where a union membership agreement is in operation; (vi) access to the courts for union members who have a grievance against their union; (vii) ballots in respect of industrial action; and (viii) the role, as presently defined, of the Commissioner for the Rights of Trade Union Members.

The Committee does, however, consider that a number of other aspects of the legislation are not compatible with the requirements of the Convention. These relate to: the concept of "unjustifiable discipline" as set out in section 3 of the 1988 Act; section 8 of the 1988 Act concerning the indemnification of trade union members and officials; the erosion of legislative protection against civil liability for industrial action; and dismissals in connection with strikes and other industrial action.

The Committee is also concerned that certain of the provisions which it considers not to be incompatible with the requirements of the Convention - notably those relating to the Commissioner for the Rights of Trade Union Members - could be applied in a manner which would be inconsistent with the letter or the spirit of the Convention. Accordingly, it asks the Government in its future reports to provide information as to the practical operation of these provisions.

(c) "Unjustifiable discipline" and section 3 of the 1988 Act

The Committee notes that section 3(1) of the 1988 Act provides that all members or former members of a union have the right not to be "unjustifiably disciplined" by that union. "Discipline" for these purposes includes being expelled from the union or a branch or section thereof; the imposition of a fine; deprivation of, or denial of access to, the benefits, services or facilities which would otherwise be available by virtue of union membership; or being subjected to "any other detriment" (section 3(5)).

The grounds upon which disciplinary action would be regarded as "unjustifed" are set out in section 3(3). They relate principally to disciplinary measures imposed because of: a refusal to participate in industrial action; encouraging or assisting another person to refuse to participate in industrial action; and complaining that a union or an official thereof has acted, or proposes to act, in an unlawful manner.

The Committee recalls that one of the basic rights which is guaranteed by Article 3 of the Convention is the right of organisations of workers and employers to draw up their constitutions and rules free from any interference which would restrict this right or impede the lawful exercise thereof. It is clear that provisions which deprive trade unions of the capacity lawfully to give effect to their democratically determined rules are, prima facie, not in conformity with this right. Section 3 of the 1988 Act clearly has this effect, and on that basis is not in conformity with Article 3.

The Committee, nevertheless, considers that the right of organisations to draw up their constitutions and rules must be subject to the need to respect fundamental human rights and the law of the land (bearing in mind that Article 8(2) of the Convention stipulates that the law of the land shall not be such as to impair the guarantees provided for in the Convention). This means that it would not be inconsistent with the requirements of the Convention to require that union rules must not discriminate against members or potential members on grounds of race or sex. The same is true for provisions (such as section 3(3)(c) of the 1988 Act) which state that unions may not discipline members who, in good faith, assert that their union has breached its own rules, or the law of the land. However, the Committee is also of the view that the nature and extent of legislative incursions upon union autonomy must be limited to that which is absolutely necessary in order to achieve these objectives - otherwise the rights guaranteed by Article 3 would be deprived of all practical effect. It follows that proper respect for the guarantees provided by Article 3 requires that union members should be permitted, when drawing up their constitutions and rules, to determine whether or not it should be possible to discipline members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action. Section 3 of the Act should be amended so as to take account of this view.

(d) Indemnification of union members and officials

The Committee notes that section 8 of the 1988 Act makes it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence or for contempt of court. This prohibition applies even in the face of an express provision in the rules which permits indemnification, and where the offence or contempt was committed on the express instructions of the union itself.

The Committee has consistently taken the view that legislative provisions which are intended to ensure sound administration and the honest and efficient management of union funds and other funds and assets are not incompatible with the Convention (General Survey, 1983, paragraphs 182 and 183). However, such provisions should not be of such a character as to deprive unions of the right to draw up their constitutions or rules and to organise their administration and activities free of interference by the public authorities - nor should they deny trade unions the right to utilise their funds as they wish for normal and lawful trade union purposes. Section 8 of the 1988 Act appears to do both of these things, and as such is not compatible with the guarantees provided by Article 3 and should be repealed.

(e) "Immunities" in respect of civil liability for strikes and other industrial action

The Committee has always considered that the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests as guaranteed by Articles 3, 8 and 10 of the Convention (General Survey, paragraph 200). It has also taken the view that restrictions relating to the objectives of a strike and to the methods used should be sufficiently reasonable as not to result in practice in an excessive limitation of the exercise of the right to strike (General Survey, paragraph 226. See also paragraphs 218-220.).

The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests.

It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of "immunities" (or, more accurately, "protections") against tort action for trade unions and their members and officials. The current version of the "immunities" is to be found in the Trade Union and Labour Relations Act 1974.

The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker's own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from "secondary action" in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of "trade dispute" in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between "employers and workers" or "workers and workers" as was formerly the case.

Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or "sympathetic" action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to "sympathy strikes":

It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful. (General Survey, paragraph 217.)

Other changes to the definition of "trade dispute" in the 1974 Act also appear to impose excessive limitations upon the exercise of the right to strike: (i) the definition now requires that the subject-matter of a dispute must relate "wholly or mainly" to one or more of the matters set out in the definition - formerly it was sufficient that there be a "connection" between the dispute and the specified matters. This change appears to deny protection to disputes where unions and their members have "mixed" motives (for example, where they are pursuing both "industrial" and "political" or "social" objectives). The Committee also considers that it would often be very difficult for unions to determine in advance whether any given course of conduct would, or would not, be regarded as having the necessary relation to the protected purposes; (ii) the fact that the definition now refers only to disputes between workers and "their" employer could make it impossible for unions to take effective action in situations where the "real" employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the "employer" of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute; and (iii) disputes relating to matters outside the United Kingdom can now be protected only where the persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely be be affected in respect of one or more of the protected matters by the outcome of the dispute. This means that there would be no protection for industrial action which was intended to protect or to improve the terms and conditions of employment of workers outside the United Kingdom, or to register disapproval of the social or racial policies of a government with whom the United Kingdom has trading or economic links. The Committee has consistently taken the view that strikes that are purely political in character do not fall within the scope of the principles of freedom of association. However, it also considers that trade unions ought to have the possibility of recourse to protest strikes, in particular where aimed at criticising a government's economic and social policies (General Survey, paragraph 216). The revised definition of "trade dispute" appears to deny workers that right.

The Committee considers that the overall effect of legislative change in this area since 1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible in order to enable workers and their unions adequately to protect and to promote their economic and social interests, and to organise their activities (General Survey, paragraphs 200 and 226). Accordingly, it would ask the Government to introduce amendments which enable workers to take industrial action against their "real" employer and which accord adequate protection of the right to engage in other legitimate forms of industrial action such as protest strikes and sympathy strikes, as guaranteed by Articles 3, 8 and 10 of the Convention.

(f) Dismissals in connection with industrial action

The Committee considers that it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal. The Committee on Freedom of Association has adopted a similar approach (see Digest of Decisions and Principles of the Committee on Freedom of Association, 3rd edition, 1985, paragraphs 442, 444, 445, 555 and 572).

In this connection, the Committee notes that common law strikes and most other forms of industrial action constitute a repudiatory breach of the individual worker's contract of employment. This has the consequence that the employer may lawfully treat the employment relationship as at an end without more ado. This happens only infrequently in practice. But it can happen, and the Committee is aware that there have been a number of situations in recent years where employers have used the fact that their employees were on strike as an excuse for dispensing with the services of their entire workforce, and recruiting a new one.

The Committee also notes that a lock-out would also constitute a repudiatory breach of the contracts of employment of the workers concerned. However the common law does not provide a means whereby those workers could obtain reinstatement in their employment, no matter how arbitrary or unreasonable the employer's behaviour had been. Furthermore, it would be in only very exceptional circumstances that such workers could obtain other than nominal damages at common law.

It is clear, therefore, that the common law does not accord workers who have been dismissed in connection with a strike, lock-out or other form of industrial action the right to present a complaint against that dismissal to a court or other authority independent of the parties concerned. The same is true of statutory provision relating to unfair dismissal - subject to the limited measure of protection which is afforded to those who are subjected to "discriminatory dismissal" within the meaning of section 62 of the Employment Protection (Consolidation) Act 1978 (as amended by section 9 of the 1982 Act). The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour; and (ii) because an employer can re-hire on a discriminatory basis so long as there is a gap of three months between the dismissal of the "victimised" workers and the re-hiring. Consequently, the Committee asks the Government to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above.

(g) Complexity of the legislation

Finally, the Committee feels bound to express its concern at the volume and complexity of legislative change since 1980. This leads the Committee to the conclusion that some reconsideration of the form and content of the legislation would be advantageous. The Committee is reinforced in this view by four considerations in particular:

(i) Whilst it is true that most of the legislative measures under consideration are not incompatible with the requirements of the Convention, there is a point at which the cumulative effect of legislative changes which are in themselves consistent with the principles of freedom of association may nevertheless, by virtue of their complexity and extent, constitute an incursion upon the rights guaranteed by the Convention.

(ii) The effect of piecemeal reforms, often introduced in order to achieve quite narrow objectives, has been to generate uncertainty in some areas of the law. This in turn may lead to unintentional breaches of the Convention and may inhibit lawful industrial action.

(iii) The inherent flexibility of the common law system further exacerbates these difficulties, given that the exact scope of the law, and the impact of statutory provisions upon it, may not be clear until the matter has been determined by a court of law.

(iv) Many of the recent changes have had as one of their principal aims the prevention of abuse of industrial power by trade unions. They have also sought to give clearer protection to the "rights" of the individual. The legislation appears to demonstrate a lesser concern for the "rights" of trade unions. The Committee considers that a more positive statement of these rights would be of advantage.

The Committee trusts that the Government will give positive consideration to these points, and asks it to indicate in its next report whether it has taken, or is contemplating taking, measures to codify, clarify and simplify its legislation concerning industrial relations.