Rapport définitif - Rapport No. 256, Juin 1988

Cas no 1391 (Royaume-Uni de Grande-Bretagne et d'Irlande du Nord) - Date de la plainte: 08-DÉC. -86 - Clos

1. 39. The World Confederation of Organisations of the Teaching Profession (WCOTP), in a communication dated 8 December 1986, presented a complaint of infringements of trade union rights against the Government of the United Kingdom. In a communication dated 22 January 1987 the WCOTP transmitted additional information in connection with the complaint on behalf of its national member union in England, Wales and Northern Ireland, the Assistant Masters and Mistresses Association. The National Union of Teachers (NUT) in a communication of 9 December 1986 also submitted a complaint of violation of trade union rights against the Government, and in a second communication dated 13 March 1987 transmitted further information in connection with the complaint. A further complaint was transmitted by the Association of Metropolitan Authorities (AMA) in a communication dated 11 December 1986 and further information was transmitted by, or on behalf of, this organisation in communications dated 14 January and 24 March 1987. The Trades Union Congress (TUC), writing with the authority of the National Union of Teachers and the National Association of Schoolmasters/Union of Women Teachers (NAS/UWT), also transmitted a complaint in a communication dated 20 January 1987. In a communication dated 5 March 1987, the International Federation of Free Teachers' Unions indicated its support for the complaint submitted by the TUC. The Association of County Councils (ACC), in a communication dated 29 April 1987, also transmitted allegations of violations of trade union rights in the United Kingdom. The Government, in a communication dated 23 October 1987, transmitted its observations in reply to the allegations made in the aforementioned complaints.
2. 40. The Committee adjourned examination of this case on several occasions, most recently at its February 1988 meeting, where it stated that it would examine it at its current session, in the light of the comments of the Committee of Experts on the Application of Conventions and Recommendations.
3. 41. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 42. In its communication of 8 December 1986 the WCOTP stated that the Government of the United Kingdom had submitted to Parliament a Bill to repeal the Remuneration of Teachers Act 1965, to make temporary provision with respect to the remuneration and other conditions of employment of school teachers (Teachers' Pay and Conditions Bill 1986). The WCOTP stated that the new proposed Act would provide for temporary measures until 31 March 1990 but these could be continued for one year at a time by simple Order by the Secretary of State. The Act would concern school teachers in England and Wales and would not affect teachers in further education who would be able to continue to negotiate and conclude agreements on their salaries and working conditions through their representative unions. For teachers in primary and secondary schools the Act was intended to abolish all real possibilities to participate in the determination of terms and conditions of employment. The WCOTP alleged that, in reality, negotiations would be replaced by the power of the Secretary of State to fix by Order whatever salaries and working conditions for school teachers that he might find appropriate. An advisory committee would report to the Secretary of State and make recommendations to him. The Secretary of State, however, would direct the advisory committee and might or might not make provisions by Order in implementation of the recommendations of the committee. The fact that there would be consultation with the employers and the teachers' unions would not mean that the Secretary of State's decisions would be influenced thereby. According to the proposed legislation, the Secretary of State could even issue Orders without any recommendation from the advisory committee up to October 1987. Retroactive provisions to 1 April 1986 could also be made until the legislation was enacted. The WCOTP pointed out that the composition of the advisory committee was in no way defined and that there was no indication that the committee would include representatives of the parties concerned; neither would the small number of members (between five and nine) allow all the different unions to be represented. The WCOTP considered these measures to be a flagrant violation of Article 4 of Convention No. 98 and Article 7 of Convention No. 151.
2. 43. In its further communication dated 22 January 1987, the WCOTP transmitted additional information on behalf of its national member union, the Assistant Masters and Mistresses Association (AMMA). The AMMA also contended that the proposed Teachers' Pay and Conditions Act 1987 would constitute a violation of relevant international labour Conventions ratified by the United Kingdom. The AMMA explained that in the United Kingdom teachers are employed by local education authorities which have exclusive rights and obligations regarding the provision of public education services. According to the AMMA, the proposed Act sought to replace the machinery established by the 1965 Remuneration of Teachers Act for reviewing and negotiating changes in the remuneration payable to teachers by local education authorities. The AMMA explained that the 1965 Act made it the responsibility of the Secretary of State for Education to set up committees (known as Burnham Committees) comprising an independent chairman, nominees of the Secretary of State and representatives of both local education authority associations and teachers' organisations. Describing the system of negotiation of salary levels within the Burnham Committees, the AMMA pointed out that the existing system establishes only a limited role for the Secretary of State in fixing salaries. The Secretary of State could not intervene directly in the negotiation process and direct ministerial intervention was contemplated by the Act only in the event of a dispute within the committee which led to arbitration. In such a case the Secretary of State had power to set an arbitration award, but not without the affirmative resolution of both Houses of Parliament. Conversely, if there was agreement within the committee, the Secretary of State must accept it and give effect to the agreement. In essence, therefore, the 1965 Act respected the principle of voluntary collective bargaining.
3. 44. The AMMA pointed out that the Remuneration of Teachers Act 1965 was to be repealed by clause 1 of the proposed Teachers' Pay and Conditions Act 1987. The Burnham Committee would be replaced by an advisory committee appointed by the Secretary of State at his sole discretion. This committee would examine and report to the Secretary of State on such matters relating to remuneration and other conditions of employment of school teachers in England and Wales as he might refer to them. The Secretary of State was under no obligation to refer any particular matters to the committee at any time. Participation of the local education authorities and the teachers' union in the review process would be confined to receiving notice from the advisory committee affording them a "reasonable opportunity" of submitting evidence and representations on the matters referred to them by the Secretary of State. Secondly, clause 3 i)of the Bill required the Secretary of State to consult local authorities and teachers' unions before he took any action consequent on a report by the advisory committee.
4. 45. The Secretary of State could accept, vary or reject altogether any recommendations agreed upon by the advisory committee and make "such other provision with respect to that matter as he thinks fit". Any Order made by the Secretary of State which materially departed from the advice of the advisory committee had to be approved by the resolution of both Houses of Parliament.
5. 46. The proposed Act would make the Secretary of State the final arbiter of disputes over teachers' pay and conditions, subject to parliamentary approval. He would have the power by Order to oblige local education authorities to impose on teachers through their contracts of employment conditions of service which he had unilaterally determined. Clause 4(iii) c)of the proposed Act enabled some matters specified by the Secretary of State to be left to the unions and the local education authorities.
6. 47. The AMMA alleged that the Bill would abolish the direct representation of teachers by their unions in relation to their pay and conditions of service for at least three years. It would also deny them access to a committee which had been set up exclusively to deal with affairs related to teachers.
7. 48. In its communication dated 9 December 1986 the National Union of Teachers (NUT) explained that there are in England and Wales six separate organisations of teachers, two of which represent head teachers only. Over the previous two years teachers in England and Wales have been engaged in a major industrial dispute with local education employers, of which there are 104 in England and Wales, over the levels of teachers' salaries and over their conditions of service. The NUT, the largest teachers' organisation in England and Wales, had played the foremost part in this dispute. In mid-November 1986 a provisional agreement was reached and signed by the representatives of four of the six teaching organisations for England and Wales representing over 300,000 teachers. The NUT pointed out that in recent years the procedure provided for under the 1965 Remuneration of Teachers Act had become discredited and some months previously a proposal had been made to abolish the existing structure and to replace it. Section 7 of the provisional agreement that had been reached in November set out the terms of the agreement between the teachers and the local education authorities on the new structure for the negotiation of pay and conditions of service. The NUT explained that the national Government had a role to play in the system of financing local government, and representatives of the United Kingdom Government had a participatory role under the negotiating structure within the terms of the 1965 Act. The NUT added that the United Kingdom Government had held observer status in the negotiations that had taken place.
8. 49. According to the NUT, shortly prior to the commencement of the final round of negotiations which led to the provisional agreement, the Secretary of State for Education and Science threatened to impose a settlement of the dispute by statutory provision. In addition, during the final round of negotiations that intention was reaffirmed by the Secretary of State who insisted that any agreement must satisfy the Government's demands. Despite this, however, the provisional agreement was reached.
9. 50. The NUT added that the Government, on 28 November 1986, presented a Bill to the House of Commons which sought to repeal the 1965 Act and replace it with a structure which would allow the Secretary of State to impose a settlement on the recent dispute and also to impose pay levels and structures as well as conditions of service on teachers in England and Wales without negotiation and without the agreement of teachers or their representatives.
10. 51. In a further communication dated 13 March 1987 the NUT stated that the Teachers' Pay and Conditions Bill had now become law and that during its passage through Parliament only slight amendments had been made and its principal effects were the same as the Bill in its original form intended. The NUT added that the Secretary of State had also published a draft Order under section 3 of the Act, by which he intended to bring into effect, by unilateral imposition, a new salary structure and new salary scales for primary and secondary teachers in England and Wales, together with new conditions of employment. The draft Order was published on 2 March 1987 and the Secretary of State had allowed only until 23 March 1987 for consultation as required under section 3(7) of the Act. The NUT stated that, along with other organisations of teachers, it had written to the Secretary of State seeking the restoration of full negotiating rights in time for negotiation to take place prior to the date for the settlement of pay levels for April 1988. It added that industrial action against the removal of negotiating rights and the imposition of conditions of employment had already commenced.
11. 52. The NUT pointed out that the terms of the Order, in so far as they related to the remuneration of teachers, were very much at variance with the collectively bargained agreement achieved in November 1986. The conditions of employment elements of the proposed Order also differed significantly from the November 1986 agreement. The NUT provided certain details concerning the manner in which they considered the draft Order to be at variance with the previously negotiated agreement.
12. 53. The Association of Metropolitan Authorities (AMA), in its communication dated 11 December 1986, stated that it represented 56 local education authorities in England and was an industrial association of employers. Referring to the Teachers' Pay and Conditions Bill introduced into Parliament by the Government, the AMA stated that this Bill, if enacted, would remove the existing arrangements whereby teachers and their employers, the local education authorities, voluntarily negotiated the terms and conditions of employment of teachers through machinery established partly under statute and partly by agreement. The AMA added that the rights of teachers and their employers would, if the Bill were enacted, be severely restricted and that, in future, they would only be afforded a reasonable opportunity of submitting evidence and representations to an advisory board and they would only be consulted by the Secretary of State on any report submitted to him by that committee. In the view of the AMA this proposed legislation was directly contrary to the Government's obligations under international labour Conventions.
13. 54. The Trades Union Congress (TUC), in its communication dated 20 January 1987, writing with the authority of the National Union of Teachers and the National Association of Schoolmasters/Union of Women Teachers, alleged that the provisions of the Teachers' Pay and Conditions Bill breached international commitments entered into by the United Kingdom Government and threatened the exercise of the right to bargain collectively. By this proposed legislation, the Government intended to set aside the machinery for negotiating teachers' pay and gave the Secretary of State power to impose pay and other conditions on teachers. The TUC added that this action could only cause further damage to industrial relations and to the morale of teachers. The Bill would also enable the Government to introduce different rates of pay for teachers in different areas of England and Wales. These measures would be entirely incompatible with voluntary negotiation. The TUC submitted a copy of proposals it had made to the Secretary of State that he should participate in a national joint council which, in the view of the TUC, should be established to determine both pay and conditions of service.
14. 55. The Association of County Councils (ACC) in its communication dated 29 April 1987 stated that it represented the interests of 46 county councils in England and Wales who in turn employed all the teaching staff in the education system in the counties in England and Wales. The ACC complained that the Teachers' Pay and Conditions Act 1987, which became law on 2 March 1987, brought to an end the existing arrangements for the joint negotiation of pay between teachers and their employers. The ACC described the various aspects of the Act which, in its view, were incompatible with the relevant Conventions of the ILO.

B. The Government's reply

1. 56. In its reply communicated to the ILO on 23 October 1987, the United Kingdom Government explains that the Teachers' Pay and Conditions Act 1987 covers teachers in schools in England and Wales. Teachers are employed either by local authorities or by the governors of the schools (usually Church schools), but in both cases they are paid by local authorities. Central Government provides some 47 per cent of the funds of local authorities through grants. The Secretary of State for Education and Science has, by virtue of the Education Act 1944, a duty to promote the education of the people of England and Wales and the progressive development of institutions devoted to that purpose, and to secure the effective execution of the national policy for providing a varied and comprehensive educational service in every area. Separate educational administrative systems and school structures apply in Scotland and Northern Ireland and, the Government explains, the existing negotiating arrangements in Scotland and Northern Ireland did not break down and therefore remain in place. Teachers in England and Wales are represented by six major unions having differing aims and objectives which compete with one another for membership over much of the range of the teaching profession, as well as a number of smaller unions; whereas in Scotland one union represents over 80 per cent of teachers.
2. 57. The previous statutory negotiating arrangements for determining teachers' pay were established by the Remuneration of Teachers Act 1965. That Act required the Secretary of State for Education and Science to establish one or more committees (known as the Burnham Committees) on which management and teachers would be represented and which reviewed pay when they thought fit or when the Secretary of State required them to do so. When the Committee made a recommendation, the Secretary of State was required to give statutory effect to it, even if he considered the recommendation unacceptable. When the revised rates of pay had been promulgated and given effect by Order, they became binding upon local education authorities. In general, the Secretary of State had no power to vary recommendations of the Committee or to make an Order in the absence of such recommendations.
3. 58. Where an agreement could not be reached, the Secretary of State was required to make arrangements for arbitration following consultation with the bodies represented on the Committee. The 1965 Act required the Secretary of State to give statutory effect to any arbitration awards as though they were recommendations of the Burnham Committee, unless each House of Parliament resolved that the national economic circumstances required that effect should not be given to the recommendations of the arbitrators, in which case the Secretary of State should then, after consultation with the relevant Burnham Committee, determine what, if any, changes in the relevant remuneration of teachers were appropriate and make an Order accordingly.
4. 59. In practice, the local authorities and teachers could not ignore the views of the Secretary of State, especially his concern for the financial implications of any settlement, as the Government was responsible for planning public expenditure as a whole and directly funded almost half the salary bill for teachers through grants to local authorities. Therefore within the Management Panel of the Burnham Committee a voluntary agreement operated from 1965 until July 1985 under which no pay offer to which the Secretary of State objected on grounds of total cost could be made. The voting arrangements in the Burnham Committee were such that a pay offer which the Secretary of State opposed was unlikely to be made to the teachers by the Management Panel.
5. 60. The Burnham Committee negotiated only about pay. Other conditions of service were negotiated directly between employers and teachers in another, non-statutory committee.
6. 61. The Government provides detailed information on the pay negotiations that took place in 1985 and 1986 and explains the major difficulties that arose in reaching agreement through the existing machinery. It was against the background of these difficulties that, on 28 November 1986, the Secretary of State for Education and Science introduced a Bill into Parliament to allow him to implement his own proposals for a revised salary structure and new contractual duties subject to the acceptance of such proposals by Parliament. The Bill also abolished the Burnham Committee and made arrangements for an Interim Advisory Committee to make recommendations to the Secretary of State about teachers' pay and other conditions of employment. The Secretary of State, however, did not close the door to a negotiated settlement and stated that he was prepared to meet the local authorities and the unions to discuss the situation.
7. 62. However, continues the Government, any hopes of a negotiated settlement disappeared as two of the four unions which signed the agreement on 21 November 1986 failed to ratify it after consulting their members. This meant that the conditional agreement between the local authorities and the unions was supported by only two of the six unions.
8. 63. The Government states that the Bill completed all stages of Parliament and became law on 2 March 1987, and the Secretary of State announced that he was going to use the new powers to implement a settlement and set out new conditions of employment. The main provisions were to increase teachers' salaries by an average of 8.2 per cent on 1 January 1987 and a further 8.2 per cent on 1 October 1987. In addition, the settlement provided for incentive allowances to be introduced over a period of three years from October 1987. Regarding other conditions of employment, the Secretary of State provided for a list of duties, specified teaching hours and a requirement to cover for absent colleagues for up to three days to be incorporated in the contract of employment.
9. 64. The Secretary of State published a draft Order in March providing for the first stage of the pay increase and the new contractual duties following consultations with the unions and the local authority associations as required under the Act. In these consultations four of the six unions took part as well as the local authority associations and the Churches; as a result 34 changes were made in the draft Order which finally came into force on 30 April 1987. It was debated in the House of Commons on 5 May 1987 when a motion to annul the Order was defeated.
10. 65. The Government explains that the two largest unions, the NUT and the NAS/UWT, continued to mount industrial action which was now directed against the withdrawal of the negotiating machinery. A series of half-day strikes continued in selected areas until 10 June 1987, after which date the NUT suspended its action, but the NAS/UWT called further action in 36 local authorites in the last two weeks of the summer term.
11. 66. On 26 June 1987 the Secretary of State published a second draft Order and a draft document to replace the Burnham Document which had set out arrangements for teachers' pay under the old system. Following further consultations, some 200 changes were made to the draft Document and a final Document was published on 6 August 1987. On this occasion all the main teacher unions took part in the consultations. An Order implementing the provisions of the Document was also made on 6 August and came into force on 1 October 1987.
12. 67. On 22 July 1987 the Government announced the membership of the Interim Advisory Committee on School Teachers' Pay and Conditions. Its Chairman would be the Vice Chancellor of the Cranfield Institute of Technology and its members would include two persons who had been teachers, as well as the recently retired Deputy General Secretary of the Trades Union Congress. In the view of the Government, such membership fulfilled the Government's commitment that the Committee would be made up of independent-minded people.
13. 68. The Government argues that the difficulties encountered in 1985 and 1986 were the final demonstration of the failure of machinery that had become discredited. It was clear that the Burnham machinery could no longer produce negotiated settlements that were acceptable to all parties concerned - teachers, local authorities and the Government.
14. 69. The conditional agreement that had finally been signed between the local authorities and four of the six unions (but in the end ratified by only two unions) had not achieved the objectives that the Government was seeking on a number of crucial issues. In particular, the proposed salary structure did little to reward skill, ability and responsibility. It compressed existing pay differentials and the monetary value of responsibility awards was too small in comparison with the top of the unpromoted teacher salary scale. In sum, the conditional agreement finally reached after six months' intensive negotiations including the assistance of the Advisory Conciliation and Arbitration Service, did not take sufficient account of the need for better teachers and better quality education and of the Government's contribution to the cost of teachers' pay. It also did not meet with the approval of the majority of teachers' unions, including the head teachers who have the responsibility for managing the schools.
15. 70. The Burnham machinery had major flaws. One of these was the restriction of negotiations to pay, with other terms and conditions left for discussion in a voluntary body. It was thus impossible to consider pay and other terms and conditions together in one body, an arrangement that was almost unique in the whole range of public service negotiations. In addition, the Government had no influence on teachers' terms and conditions other than pay since it was not represented in the voluntary body and since July 1985 the Secretary of State had relatively little influence over pay determination. The Government judges this situation inconsistent with the Secretary of State's statutory responsibilities for school education and according to the Government it was not satisfactory that the taxpayer and Government should have no say in what they were paying for if they were paying half the bill.
16. 71. The local authorities themselves had recognised that the Burnham machinery was structurally deficient and had called for its replacement. The Secretary of the Local Authorities Conditions and Services Advisory Board had written to the Secretary of State for Education in February 1986 making a number of criticisms of the Burnham machinery. Some of the teachers' unions had also publicly acknowledged that the Burnham arrangements were not satisfactory. The widespread failure of Burnham and the need for its replacement were also recognised by such bodies as the independent Audit Commission, which, in a report, showed that the Burnham Committee had not worked satisfactorily compared with other local authority negotiating bodies and argued that the Committee and voluntary body should be replaced.
17. 72. In addition to these structural flaws, the parties had in recent years failed to negotiate pay agreements through this machinery and, according to the Government, the major reason for this failure was the division amongst the representatives of the teachers' unions and amongst the representatives of the local authorities. Teachers' representation on the Teachers' Panel of Burnham was fragmented among six unions. Before 1985 the National Union of Teachers had used its majority vote to have its own views adopted at the expense of the other unions, but after the NUT lost its majority there was little prospect of the various unions reaching an agreement acceptable to the majority of unions and teachers. Accordingly, even the agreement that was finally signed in November 1986 by the local authorities and representatives of four of the six unions was in the end ratified by only two unions. The Government believed that these continuing conditions among the unions made it very difficult for them to achieve consensus on the requirements of pay and conditions of service which were generally agreed to be necessary. Political divisions among the local authorities' representatives also made it difficult to achieve any agreement between the parties.
18. 73. The Government believed, as did the majority of local authorities and unions, that it was not possible merely to reform the Burnham negotiating machinery. The negotiations of the previous six months showed that the inherent weaknesses of the Burnham machinery, its restriction to cover only pay bargaining and the unbridgeable divisions among the unions meant that it had to be replaced. The Government believed that it had no alternative but to legislate to introduce new interim arrangements for determining teachers' pay and conditions. The proposed new voluntary negotiating machinery, provisionally accepted by the local authorities and the unions, suffered from a number of drawbacks which the Government believed would not enable it to negotiate settlements acceptable to all the parties. In particular this arrangement excluded any active role for the Government which funded almost half of local authority expenditure including that of teachers' salaries. There was no assurance that the proposed new voluntary arrangements would be acceptable to the majority of teachers and there was no reason to believe in the circumstances that differences and divisions of representation on the teachers' side would be more easily reconciled in a voluntary framework than under the statutory Burnham machinery.
19. 74. According to the Government radical changes were clearly necessary. The 1987 Act provided for the temporary arrangement of a statutory advisory committee. It repealed the Remuneration of Teachers Act 1965 and thus abolished the Burnham Committees. It provided that the remuneration of teachers should continue to be determined and paid to teachers by local education authorities in accordance with the pay scales and other provisions in force immediately before the passing of the Act until they are superseded by provisions made in the new Act in the case of school teachers, or agreed between teachers and their employers in the case of teachers in further education. The Government points out that the Act will expire in 1990 unless extended by an affirmative resolution of both Houses of Parliament.
20. 75. The Act places a duty on the Secretary of State for Education and Science to appoint an Interim Advisory Committee on School Teachers' Pay and Conditions to replace the previous arrangements. This Committee shall consist of between five and nine members including the Chairman. The Committee must consult before reporting on any matter relating to pay and other conditions of employment of school teachers referred to them by the Secretary of State, and its reports must be published. The Secretary of State is given the power to put recommendations into effect after consulting the relevant parties. The Order made by the Secretary of State must be voted by both Houses of Parliament following which local authorities have a legal obligation to pay teachers in accordance with the scales and other provisions set out in the Order. The provisions on other conditions of employment will have effect as terms of teachers' contracts. The Government explains that the Secretary of State for Education and Science was able to make orders coming into force on or before 1 October 1987 without a report from the Interim Advisory Committee but subject to negative resolution of both Houses of Parliament after consulting the parties concerned.
21. 76. After 1 October 1987, the Secretary of State will be able to refer matters concerned with pay and the terms and conditions of employment of teachers to the Interim Advisory Committee. The Secretary of State can give directions on the matters which the Committee will examine and these directions can include consideration of the financing and other constraints which will be relevant to the Committee's deliberations. Following a reference from the Secretary of State, the Interim Advisory Committee will take evidence from all interested parties, and local authorities, the unions, the Churches and/or individual teachers will be able to put forward evidence and representations on all matters under consideration. The Secretary of State is free to accept, modify or reject the independent recommendations made by the Committee. However, before reaching a decision, the Secretary of State must by statute consult the unions and the local authorities in order to ascertain their views. Following these consultations, the Secretary of State has the legal power to put his decisions into effect, subject to approval of both Houses of Parliament.
22. 77. As stated above, in the period until 1 October 1987, the Secretary of State had the power to amend pay and conditions without seeking the advice of the Interim Advisory Committee but subject to the negative resolution of both Houses of Parliament. During this period the Secretary of State made two Orders. During the consultative process on the first Order, four out of the six unions consulted took part as well as the local authority associations and the Churches. Thirty-four changes were made to the draft Order as a result of such consultation. All six unions took part in consultations on the second Order and some 200 changes were made to the draft document.
23. 78. The Government has repeatedly emphasised the temporary nature of the Interim Advisory Committee.
24. 79. As regards the application of international labour Conventions involved in this case, the Government believes that Convention No. 151 is the appropriate one to be considered. It repeats the arguments it put forward in an earlier case concerning the United Kingdom, that Conventions Nos. 87, 98 and 151 need to be read together. The Government contends that teachers are persons employed by public authorities and therefore come within the scope of Convention No. 151. The provisions of this Convention have, according to the Government, overtaken the general provisions in Convention No. 98 as far as collective bargaining for public service workers is concerned. The Government admits that teachers are not public servants engaged in the administration of the State and that Article 6 does not exclude them from the scope of Convention No. 98; it likewise admits that Convention No. 151 applies to persons employed by the public authorities "to the extent that more favourable provisions in other international labour Conventions are not applicable to them". But it considers that Article 7 of Convention No. 151 is not less favourable than Article 4 of Convention No. 98. Article 4 of Convention No. 98, maintains the Government, is more apt to describe machinery for voluntary negotiations between private sector employers and workers, while Article 7 of Convention No. 151 is more apt to describe the procedures for determining terms and conditions of employment of persons in public sector employment. The Government believes that setting up an Interim Advisory Committee is compatible with Article 7 of Convention No. 151, which clearly envisages arrangements other than collective bargaining whereby unions can participate in the determination of employment conditions. The new system provides plenty of opportunity for the unions and local authorities to participate in such determination. Finally, the Government considers that if it is decided that Convention No. 98 is applicable, the Government is not in breach of Article 4. Since the old machinery has broken down and prolonged industrial action has caused disruption in the educational system, the Government has been forced to introduce new arrangements. Thus, according to the Government, circumstances justify taking such exceptional measures for a reasonable time in accordance with the Committee's principles on the subject.

C. The Committee's conclusions

1. 80. The Committee notes that all the complaints in this case relate to the alleged infringement of standards and principles contained in Conventions Nos. 98 and 151, both of which have been ratified by the United Kingdom. The allegations relate to the infringement of one or other of these Conventions or of both.
2. 81. The Committee has examined this case having particular regard to the rights and obligations spelled out in international labour Conventions and other instruments adopted in this field and also to the principles laid down by the supervisory bodies of the ILO on the subject. As it pointed out at its February 1988 meeting, the Committee notes in particular the comments made by the Committee of Experts on the Application of Conventions and Recommendations at its March 1988 Session.
3. 82. The only category of workers involved in this case is that of teachers employed by local authorities in England and Wales. In the view of the Committee, such workers, not being public servants engaged in the administration of the State, fall within the scope of Convention No. 98, and, in particular, of Article 4, which provides 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". The Government, in its comments, accepts this view.
4. 83. As regards Convention No. 151, it was adopted by the International Labour Conference in order to guarantee protection of the right to organise of public servants in general, defined as "all persons employed by public authorities", including those categories (with the exception of the police and armed forces) who were excluded from the scope of Convention No. 98 (Article 6). In the opinion of the Committee, it is clear that Convention No. 151, and in particular Article 7, which provides that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters", is applicable to the category of workers involved in he present case, which, again, is not contested by the Government of the United Kingdom in its communications.
5. 84. The Committee observes that the Government, in its reply, considers that this case falls within the scope of Convention No. 151. It contends that the specific provisions in Convention No. 151 have overtaken those of Convention No. 98. In the Government's opinion, Article 4 of Convention No. 98 is more apt to describe machinery for voluntary negotiations in the private sector, while Article 7 of Convention No. 151 is more apt to describe procedures for determining terms and conditions of employment in the public sector. Referring to Article 1, paragraph 1, of Convention No. 151, which states that this Convention applies to all persons employed by public authorities "to the extent that more favourable provisions in other international labour Conventions are not applicable to them", the Government considers that Article 7 of Convention No. 151 is not less favourable than Convention No. 98.
6. 85. The Committee, for its part, considers that Article 1, paragraph 1, of Convention No. 151 implies that the rights guaranteed in Convention No. 98 cannot be denied or restricted merely by referring to Convention No. 151. In the case of a country such as the United Kingdom, which has ratified both Conventions, and a branch of activity such as that of public education, where both Conventions are applicable, it therefore has to determine whether Article 4 of Convention No. 98 offers more favourable provisions to workers than Article 7 of Convention No. 151. The Committee, as has the Committee of Experts, considers that "Article 4 of Convention No. 98 offers more favourable provisions since it includes the concept of voluntary negotiation and the independence of the negotiating parties; it should therefore be applicable in preference to Article 7 of Convention No. 151, which calls upon the public authorities to promote collective bargaining either by means of procedures that make such bargaining possible, or by such other methods as will allow public servants to participate in the determination of their terms and conditions of employment". Therefore, the question before the Committee in this case is to determine whether the new procedures outlined in the Teachers' Pay and Conditions Act, 1987 are in conformity or not with Article 4 of Convention No. 98.
7. 86. In this respect, the Committee notes that, under the terms of the new Act, the Secretary of State is obliged to appoint an Interim Advisory Committee consisting of between five and nine members, including the Chairman. On receipt of a reference to it by the Secretary of State, this Committee must consult or take evidence from all interested parties before arriving at its own independent recommendations. The Secretary of State is free to accept, modify or reject the advice given to him by the Committee. However, before deciding whether or not to accept the recommendations of the Committee, the Secretary of State must, by law, consult the trade unions and local authorities to ascertain their views.
8. 87. While noting that all of the parties concerned and, in particular, teachers' organisations, are thus consulted twice (by the Advisory Committee and by the Secretary of State), the Committee must, however, point out that the Secretary of State is free to reach a final decision and that this system cannot therefore be considered as instituting a procedure of voluntary negotiation of collective agreements as prescribed in Article 4 of Convention No. 98. The Committee also points out that the new legislation is scheduled to expire on 31 March 1990, but that it may be extended from one year to the next merely by order of the Secretary of State and could therefore exceed a period which may be termed reasonable. In these circumstances, the Committee can only conclude, as did the Committee of Experts on the Application of Conventions and Recommendations, that the legislation is not in conformity with Convention No. 98.
9. 88. Finally, the Committee notes that, throughout its communications, the Government has stressed the temporary nature of the Interim Advisory Committee and that it intends to establish permanent machinery following consultations with all interested parties. As a basis for such consultations, the Government has published a consultative document setting out proposals for new and permanent arrangements to determine pay and conditions of primary and secondary-school teachers. The Government has requested responses to this consultative document by 29 January 1988. The Committee is not called upon to examine the proposals contained in this consultative document. It can only trust that the consultations that are under way and the discussions on a permanent system will give the Government the opportunity to make the necessary legislative amendments to give effect to the fundamental principle of the voluntary negotiation of collective agreements, as contained in Convention No. 98.

The Committee's recommendations

1. 89. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee considers that the system for the determination of the terms and conditions of employment of teachers provided for in the Teachers' Pay and Conditions Act 1987 - which is for the moment in force until 1990 - is not in conformity with Article 4 of Convention No. 98.
   • b) The Committee trusts that the consultations that are under way and the discussions on a permanent system will give the Government the opportunity to make the necessary legislative amendments to give effect to the fundamental principle of the voluntary negotiation of collective agreements, as contained in Convention No. 98.
   • c) The Committee again draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations so that it may follow developments in the situation.