Rapport intérimaire - Rapport No. 58, 1962

Cas no 221 (Royaume-Uni de Grande-Bretagne et d'Irlande du Nord) - Date de la plainte: 13-FÉVR.-60 - Clos

1. 88. The complaint of the Forces Local Employees' Union (Aden) is contained in two communications dated 13 February and 1 April 1960, that of the W.F.T.U in a communication dated 5 September 1960 and that of the I.C.F.T.U in two communications dated 30 September and 7 November 1960. In a communication dated 13 February 1961 the Government forwarded its observations on the complaints presented by the W.F.T.U and the I.C.F.T.U. Its observations on the complaint of the Forces Local Employees' Union were forwarded in a communication dated 13 April 1961.
2. 89. At its meeting on 30 May 1961 the Committee submitted its final recommendations to the Governing Body with regard to allegations relating to a strike of civilian employees of the armed forces in Aden and to the non-recognition of their union. With regard to other allegations relating to a general strike and to the Aden Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, and to the suppression of a trade union newspaper, the Governing Body, approving at its 149th Session (June 1961) recommendations made by the Committee in paragraph 96 of its 57th Report, decided to request the Government to furnish certain further information. Only these outstanding allegations are considered below.
3. 90. Further information was furnished by the Government in a letter dated 13 October 1961.
4. 91. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Government of the United Kingdom has declared the provisions of all three Conventions to be applicable to Aden without modification.

A. A. The complainants' allegations

• Allegations relating to a General Strike and to the Aden Industrial Relations (Conciliation and Arbitration) Ordinance, 1960
  92. 92 The W.F.T.U declares that on 15 August 1960 the Industrial Relations (Conciliation and Arbitration) Ordinance was enacted and that the ordinance is an unjust law which, among other things, prohibits strikes. In protest a general strike was called which lasted for three days, after which 150 workers were dismissed for taking part in the strike. The complainants consider these matters to be in violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by the Government of the United Kingdom and declared applicable to Aden.
  93. 93 The I.C.F.T.U deals in detail with the same issues. It is alleged that the ordinance introduces a system of compulsory arbitration by an Industrial Court and makes strikes and lockouts illegal before, during and following arbitration procedure except where that procedure does not apply. It does not apply, state the complainants, where there is in existence, to the satisfaction of the President of the Industrial Court, an agreement providing satisfactory arrangements for the settlement of any wage dispute and where an exemption certificate is therefore granted; where the Crown is a party to the dispute and is not prepared to accept arbitration on the matters in dispute; where the occupation, trade or industry is covered by a wages council; or where the Court refuses to take cognizance of the dispute because in its opinion the employer has failed to negotiate or to attempt to negotiate in good faith.
  94. 94 The ordinance, passed by the Legislative Council on 15 August 1960, received the Governor's assent on the following day. It contained a provision that it would come into force on such date as the Governor in Council might by notice in the gazette declare. The general strike in protest against the law was called by the Aden T.U.C on 15 August 1960. On 17 August negotiations took place between the Governor and the Aden T.U.C and the latter, it is alleged, agreed to call off the strike on 18 August, to promote good industrial relations, to encourage agreements establishing procedures for the settlement of disputes and to set up its own Directorate which would advise affiliated unions on collective bargaining and co-operate with the Labour Commissioner in the investigation of the causes of strikes. But negotiations broke down, it is alleged, when the Governor made deferment of the date bringing the ordinance into force dependent on guarantees that no further strikes would be called in protest against the new law, because the T.U.C could not assume responsibility for strikes that might be called without its knowledge or agreement, while the Governor would not make any statement concerning the protection of strikers against dismissal or other disciplinary action. With respect to the last point the complainants state that many workers were dismissed on 15 August 1960 for striking and others re-engaged at a reduced wage. They contend that, in a letter dated 2 September from the Chief Secretary to the Aden T.U.C, it was stated that the disciplinary measures must stand, but that the Aden-born employees concerned would not be debarred from the possibility of government employment at a later stage. The complainants condemn this as discriminatory. The ordinance came into force on 18 August 1960. The T.U.C called off the strike to avoid clashes with the police.
  95. 95 The complainants contend that the provisions of the ordinance referred to in paragraph 93 above violate trade union rights and that, where trade unions are compelled to conclude agreements to establish satisfactory negotiating machinery or to face compulsory arbitration and a ban on strikes, there can be no free collective bargaining, such compulsion being entirely at variance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and especially with Article 4 of that Convention.
  96. 96 The complainants contrast the situation in Aden with that subsisting in some countries where the principle of compulsory arbitration has been introduced with the agreement of the trade unions, stating that in Aden the unions opposed the enactment and that a majority of the elected members of the Legislative Council (which consists partly of elected members and partly of members appointed by the Government) wished consideration of the Bill, when it was introduced to the Council, to be postponed for four months. The complainants point out that, despite the breakdown in negotiations, the T.U.C did set up the Directorate referred to earlier in order to help its affiliated unions to set up negotiating machinery by agreement, but that the existence of the ordinance may lead employers to prefer to invoke compulsory arbitration machinery. Although the ordinance authorises the Industrial Court to reject cases where the employer has failed to negotiate in good faith, this is a question of fact which it is difficult to prove. In the view of the complainants, therefore, as expressed in their communications dated 30 September 1960, the ordinance encourages employers to disregard voluntary negotiating machinery, contrary to the said Convention No. 98. In the communication dated 7 November 1960 the complainants contend that this forecast has already been proved justified and that employers are defeating the procedure of collective bargaining and trying to bring disputes before the Industrial Court. Citing the specific case of an agreement which would have been signed, but for the enactment of the ordinance, between Aden Airways and the Civil Aviation Employees' Union, the complainants contend that the ordinance has not encouraged collective bargaining but has hampered industrial relations: thus the avowed purpose of the ordinance has become illusory.
  97. 97 In its reply, dated 13 February 1961, the Government of the United Kingdom began by stating that it welcomed this opportunity to remove a number of misunderstandings concerning the ordinance. The Government forwarded a copy of an Aden Government White Paper explaining the essential purpose of the ordinance as being to encourage the development of voluntary collective bargaining and the establishment of working conditions and wages by collective agreement. After citing the provisions of the ordinance already referred to in paragraph 93 above, the Government expressed its disagreement with the assessment made by the I.C.F.T.U and declared that, on the contrary, the ordinance precisely fulfils the objectives of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Government did not understand the I.C.F.T.U's contention that the ordinance infringes the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as it imposes no restrictions on freedom of association and expressly protects workers against acts of anti-union discrimination.
  98. 98 Again referring to the White Paper, the Government declared that the situation leading up to the enactment of the ordinance was a very troubled one. The White Paper itself reviewed the policy of recent years of encouraging the development of joint negotiating machinery and stated that it was the failure of both sides to negotiate joint agreements on this matter, coupled with the refusal of the unions to accept voluntary arbitration or to exhaust the possibilities of negotiation before calling strikes, that led to the outbreaks of strikes in 1959 and 1960. The White Paper, while accepting the right of trade unions to interest themselves in politics, claimed that the Aden T.U.C had become too interested in politics of a nature unconnected with the labour movement.
  99. 99 The Government went on to state that in the six months following the enactment of the ordinance the conduct of industrial relations had become more constructive and the Government felt that the views of the I.C.F.T.U on what might take place after the promulgation of the ordinance (see paragraph 96 above) were unjustifiably pessimistic. Several agreements on conditions of employment had been concluded between employers and trade unions, while others were being negotiated. According to the Government, the trade unions had not complained of any case in which they claimed the employer had failed to bargain in good faith. In the Government's view it rested with the trade unions and the employers to take advantage of the opportunity to negotiate voluntary agreements which the ordinance provides.
  100. 100 With respect to the dismissals of strikers, the Government gave the following information. All government staff were warned beforehand that any strike against the new legislation would be regarded as inconsistent with their duty as public servants and render them liable to dismissal. On 15 August 1960, when the general strike began, 182 men, nearly all daily-paid unestablished labourers, absented themselves and were subsequently dismissed. Of these, 66 had been reinstated since the date (2 September) of the Chief Secretary's letter referred to by the I.C.F.T.U and consideration was being given to reinstating the remainder. While Aden " nationals " had been given priority in the matter of reinstatement, the Government declined to regard this as discrimination, because " no State can be under an obligation to provide employment for foreign nationals ".
  101. 101 It thus appeared, observed the Committee at its meeting on 30 May 1961, that the Government proposed to enact an ordinance making arbitration compulsory in certain disputes and prohibiting strikes and lockouts in certain circumstances (an ordinance which, in the view of the complainants, violates certain Conventions ratified by the United Kingdom in respect of Aden); that, in protest, the Aden T.U.C called a general strike and a number of strikers were dismissed; and that, while some strikers had been reinstated, priority of reinstatement had been given to Aden-born workers.
  102. 102 The ordinance establishes an Industrial Court for the settlement of trade disputes. The President, to be appointed by the Governor, " shall not... be subject to the direction or control of any other person or authority " (section 6 (2)), except that appeals on points of law affecting awards lie to the Supreme Court. The President may appoint assessors nominated in equal numbers by each of the parties to a dispute (section 7). The procedures under the ordinance, which are considered hereafter, do not operate in cases within the jurisdiction of a wages council-an issue not relevant to the allegations-or cases in which the President of the Court grants an exemption. An exemption, apparently of a general and continuing nature, from the application of the procedure may be granted by the President, on application by either side, where an agreement has been concluded between the trade union and the employer or employers' organisation concerned which provides satisfactory arrangements for the settlement of any trade dispute that may arise between them (section 8 (1)). Subject to the foregoing, either party may report a trade dispute to the Labour Officer if the dispute is not otherwise determined (section 10 (1)). Conciliation by the Labour Officer ensues, but he must first refer the dispute for settlement by any suitable means of settlement subsisting under an agreement between the parties unless there has been failure to reach a settlement by such means (section 11 (1)). If conciliation fails, the Labour Officer shall report the case to the Industrial Court (section 14 (1)). If the Crown is a party to the dispute, it may refuse to accept arbitration (section 14 (2))-the consequences of this will be explained later. The Court, even now, may allow further time for negotiation (section 14 (4)), and may in any case refuse to take cognizance of the dispute " if in the opinion of the Court a party, being an employer or association of employers, to the dispute has failed to negotiate or attempt to negotiate in good faith " (section 14 (5)).
  103. 103 There follow a number of provisions respecting the hearings before the Court and the making of awards, which are binding for not more than two years. Strikes and lockouts are prohibited under section 24 unless (a) an exemption has been granted under section 8 (1) as explained above, or (b) the Court refuses to take cognizance of the dispute under section 14, or (c) the dispute is within the jurisdiction of a wages council, or (d) the Crown has refused to submit to arbitration. Section 25 prohibits strikes in breach of contract in essential services-a matter not within the scope of the allegations made.
  104. 104 To sum up the position, therefore, the Committee noted that it would seem that, if two parties establish by agreement machinery for the settlement of disputes, the existence of such machinery immediately places them outside the provisions of the ordinance and the procedure is purely voluntary. Otherwise either party-not the authorities-must report the dispute to the Labour Officer in order to set the procedure in motion. But, even in the absence of established voluntary machinery, the ordinary procedure for the negotiation of collective agreements in not excluded-the Labour Officer entertains the dispute if it is not otherwise determined, i.e. by agreement. After this, before the Court hears the matter, every encouragement is given to settlement by negotiation. The provisions concerning the Constitution of the Court, the Committee noted, would appear to be such as to ensure that it is constituted on an impartial basis.
  105. 105 Under Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government of the United Kingdom has undertaken, with respect to Aden, that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ".
  106. 106 While there was a divergence of views between the I.C.F.T.U and the Government as to whether the ordinance will encourage the conclusion of collective agreements or whether, on the contrary, it will cause employers to go to arbitration because they hope it will be to their advantage-a matter on which the Committee felt that it was not called upon to give an opinion-it seemed to the Committee that the provisions of the ordinance examined above were not incompatible with Article 4 of the Convention.
  107. 107 The Committee then noted that section 14 (2) of the ordinance permits the Crown to refuse to accept arbitration. The Crown is an important employer in Aden. According to the White Paper forwarded by the Government of the United Kingdom, the Government and H. M. Forces in Aden employ 11,640 of the working population of approximately 62,000. The effect of section 14 (2) of the ordinance is that the Crown, as an employer, can cause or allow a dispute with its employees to be settled by arbitration or not, according to the attitude that it chooses to adopt in the particular dispute. It therefore has the legal right, like other employers, of being able to report a dispute and thereby prevent a strike if it so desires, but can then, unlike other employers, choose at a later date, after a period of conciliation, to refuse to go to arbitration at a moment when the trade unions, which from that moment are not barred by the anti-strike provisions in the ordinance (except in so far as notice of a strike in all essential occupations is prescribed), are perhaps no longer in a strong position to call a strike. In other words, the Crown enjoys, with respect to the application of the compulsory arbitration provisions of the ordinance, a privileged position as an employer in contrast both with its employees and with other employers.
  108. 108 In this case, the Committee observed, there are really two allegations concerning the right to strike-one concerns the general strike called in protest against the ordinance on 15 August 1960 and called off on 18 August 1960, the day on which the ordinance came into force, and the dismissals effected in consequence of that strike; the second allegation concerns the provisions of the ordinance restricting the exercise of the right to strike (provisions, of course, not relevant to the legality of the general strike preceding the promulgation of the ordinance). These two issues call for separate consideration.
  109. 109 The general strike on 15 August was called in protest against an enactment. The Committee pointed out that it has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far as they affect the exercise of trade union rights', and has recommended the governing Body to affirm, on numerous occasions, that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests. The Committee, however, has rejected allegations relating to strikes by reason of their non-occupational character, or where they have been designed to coerce a government with respect to a political matter, or have been directed against the government's policy and not " in furtherance of a trade dispute ".s The general strike against the ordinance in the present case was certainly one against the Government's policy but it would seem doubtful whether allegations relating to it could be dismissed at the outset on the ground that it was, not " in furtherance of a trade dispute "-the trade unions were in dispute with the Government in its capacity as an important employer which initiated a measure dealing with industrial relations which, in the view of the trade unions, restricts the exercise of trade union rights. On these issues, it seemed to the Committee indeed that opinion in the Legislative Council was divided and that the Government was considering at one stage whether or not the date of coming into force of the ordinance should be postponed if certain guarantees were forthcoming on the trade union side. The real point of grievance, however, related not to the general strike as such but to the dismissals of strikers. It was evident from the Government's reply that, having taken an unequivocal stand in principle, as shown by the Chief Secretary's letter of 2 September 1960, it then had regard to its desire to bring about an improvement in the existing situation, in which it is common ground that industrial relations were attended by considerable tension, by holding out prospects of subsequent reinstatement of strikers. The Government declared that 66 strikers had been reinstated and that consideration was being given to reinstating the remainder. It also seemed from the Government's reply that the tension had eased somewhat in the previous few months.
  110. 110 In these circumstances the Committee, at its 28th Session (May 1961), recommended the Governing Body to take note of the Government of the United Kingdom's statement that 66 of the 182 employees dismissed for having taken part in the general strike of 15 August 1960 had been reinstated, and that consideration was being given to reinstating the remainder, and to request the Government of the United Kingdom to keep the Governing Body informed of the progress made in the reinstatement of further employees. This recommendation was approved by the Governing Body at its 149th Session (June 1961).
  111. 111 With regard to the question of the strike provisions contained in the ordinance of 1960, an important principle emphasised in the past by the Governing Body and the Committee appeared to be particularly pertinent. The Committee recalled that while expressing the general principles concerning strikes referred to in paragraph 109 above, it has emphasised that, in exercising the right to strike, workers and their organisations must have due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties can take part at every stage. In doing so, however, the Committee stressed that when restrictions of this kind are placed on the exercise of the right to strike the ensuing conciliation and arbitration proceedings should be " adequate, impartial, and speedy ".
  112. 112 It appeared to the Committee, however, having regard to the privileged position of the Crown in such proceedings under the provisions of section 14 (2) of the ordinance (see paragraph 107 above), that the arbitration procedure does not fully comply with this criterion.
  113. 113 The Committee observed further that the effects of section 14 (2) of the ordinance were also considered, at its meeting in March 1961, by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, which decided to address a Direct Request to the Government of the United Kingdom in connection with the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84).
  114. 114 In these circumstances the Committee, at its 28th Session (May 1961), recommended the Governing Body to draw the attention of the Government of the United Kingdom to the importance which it attaches to the principle that where the exercise of the right to strike is subject to restrictions pending recourse to conciliation and arbitration procedure, such procedure should be adequate, impartial and speedy, and to request the Government, having regard to this principle and to the considerations set forth in paragraphs 107, 109 and 111 to 113 above, to furnish information as to the reasons for the exception in favour of the Crown made in section 14 (2) of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960. This recommendation was approved by the Governing Body at its 149th Session (June 1961).
  115. 115 In its communication dated 13 October 1961 the Government states that a further 44 of the 182 government employees dismissed for having taken part in the general strike of 15 August 1960 have been reinstated, making a total of 110. The Government of Aden has made every effort to reinstate the remaining non-established staff, but they have not reported to the Employment Exchange for reinstatement on any of the many occasions on which vacancies have been advertised. It is thought that they have taken up other employment without using the Employment Exchange, or that they have left Aden, as there is considerable movement of labour between Aden and the hinterland.
  116. 116 In these circumstances the Committee recommends the Governing Body to note the Government's statement that a further 44 of the 182 government employees dismissed for having taken part in the general strike of 15 August 1960 have been reinstated, making 110 in all, and that the remainder have not responded to the opportunity of reinstatement offered to them, and to decide that no useful purpose would be served by pursuing this particular aspect of the matter further.
  117. 117 The Government declares that it shares the view of the Governing Body that, where the right to strike is restricted, conciliation and arbitration procedure should be adequate, impartial and speedy, but finds it difficult to follow the suggestion that the position of the Crown in Aden is at variance with that criterion. It has been publicly stated that the Crown will normally be prepared to accept arbitration on a wide range of topics, including emoluments, hours of work and leave, which are the most important issues in staff relations. The Government declares that the adequacy, impartiality and speed of the arbitration procedure, in cases in which the Crown does accept it, do not appear to have been called into question. The decision whether or not the Crown should accept arbitration would usually be taken when, after a dispute had failed to be settled by negotiation or conciliation, the case was reported by the Labour Officer to the Industrial Court. Under section 14 (1) of the ordinance, the procedure of conciliation is subject to a strict time limit, not normally exceeding 14 days. The interval before the right to strike would be restored in that limited range of disputes on which the Crown might not be prepared to accept arbitration seems unlikely, therefore, in the view of the Government, to be long enough to have any material effect on the strength of a union's position in calling a strike. It is now over a year since the ordinance was enacted, and the Government is not aware of any instance in which its operation has been objected to on this ground, which, the Government adds, does not appear to figure among the specific grounds of complaint in the communications submitted to the Committee.
  118. 118 With respect to the last point made by the Government, the Committee observes that it is specifically alleged among other things by the I.C.F.T.U. (see paragraph 93 above) that the compulsory arbitration procedure does not apply where the Crown is a party to the dispute and is not prepared to accept arbitration on the matters in dispute.
  119. 119 The Government declares that it has been publicly stated that the Crown will normally be prepared to accept arbitration on a wide range of topics, including emoluments, hours of work and leave, that in the limited range of disputes in which the Crown might not accept arbitration the decision not to do so would usually be taken after the failure of the conciliation procedure which itself is limited to a period not normally exceeding 14 days under section 14 (1) of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, whereupon the right to strike would be restored, and that the Government is not aware of any instance in which the operation of the ordinance has been objected to on this ground.
  120. 120 In these circumstances the Committee recommends the Governing Body to take note of this statement by the Government.
• Allegations relating to the Suppression of a Trade Union Newspaper
  121. 121 It is alleged by the W.F.T.U and the I.C.F.T.U that the licence of Al-Amel, the journal of the Aden T.U.C, was revoked on 19 August 1960 and that, in his letter informing the T.U.C of this decision, the Chief Secretary to the Government of Aden stated that, if the labour movement in Aden desired in the future to apply for a licence to publish a newspaper " restricted to labour matters ", the Governor would be willing to entertain an application and to consider on what conditions such a licence might be granted. The I.C.F.T.U declares that an immediate application was made but that, according to its information, no licence has been granted.
  122. 122 The Government confirmed these facts in its communication dated 13 February 1961. Since the first application was made-to publish the same paper under a new name - no further formal application had been received. The Government added that if any formal application were received "it would be sympathetically considered by the Government of Aden in the light of the conditions arising from past experience ".
  123. 123 At its meeting on 30 May 1961 the Committee recalled that in certain previous cases, it had expressed the view that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights. It was not clear to the Committee either from the complaints or from the Government's reply exactly why the licence of the newspaper of the Aden T.U.C was revoked, but it seemed probable from the date of the revocation-19 August 1960-that the matter was related to the other events which took place at that time, namely the general strike against the ordinance of 1960, the dismissal of strikers and the bringing into force of the ordinance.
  124. 124 In these circumstances the Committee recommended the Governing Body to draw the attention of the Government of the United Kingdom to the importance which the Governing Body has always attached to the freedom of the trade union press, to express the hope that, in view of the Government of the United Kingdom's statement that a future application from the Aden T.U.C to publish a newspaper would be sympathetically considered by the Government of Aden, the freedom of the trade union press in Aden would shortly be re-established, and that the Government of the United Kingdom would keep the Governing Body informed of further developments in this connection. This recommendation was approved by the Governing Body at its 149th Session (June 1961).
  125. 125 In its communication dated 13 October 1961 the Government states that an application by the Aden T.U.C for a newspaper licence is under consideration by the Government of Aden and that, in the meantime, the Aden T.U.C is making use of a new weekly newspaper as a medium for its views.
  126. 126 In these circumstances the Committee recommends the Governing Body to note that an application by the Aden T.U.C for a newspaper licence is now under consideration and to request the Government to keep the Governing Body informed of further developments in this connection.

The Committee's recommendations

1. 127. In all the circumstances the Committee recommends the Governing Body:
   • (a) to note the Government's statement that a further 44 of the 182 government employees dismissed for having taken part in the general strike of 15 August 1960 have been reinstated, making 110 in all and that the remainder have not responded to the opportunity of reinstatement offered to them, and to decide that no useful purpose would be served by pursuing this particular aspect of the matter further;
   • (b) to note the information by the Government to the effect that it has been publicly stated that the Crown will normally be prepared to accept arbitration on a wide range of topics, including emoluments, hours of work and leave, that in the limited range of disputes in which the Crown might not accept arbitration the decision not to do so would usually be taken after the failure of the conciliation procedure, which itself is limited to a period not normally exceeding 14 days under section 14 (1) of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, whereupon the right to strike would be restored, and that the Government is not aware of any instance in which the operation of the ordinance has been objected to on this ground;
   • (c) to note that an application by the Aden T.U.C for a newspaper licence is now under consideration and to request the Government to keep the Governing Body informed of further developments in this connection.