Definitive Report - REPORT_NO13, 1954

A. A. The complainants' allegations

1. 115. The complaint is contained in two communications dated 17 March and 29 April 1954, accompanied by a memorandum and other documents.
2. 116. The complaining organisation states that it is a registered trade union which organises aircraft ground engineers employed by two government-owned air transport corporations established by statute-the British Overseas Airways Corporation (B.O.A.C) and the British European Airways Corporation (B.E.A.C.). In 1946 a majority of the engineers employed by B.O.A.C indicated their desire to the Corporation, in writing, to be organised and represented by the complaining organisation.
3. 117. Both the Corporations are now governed by the Civil Aviation Act, 1946. In 1946, when the Act was still a Bill before Parliament, the complaining organisation states that certain other unions-referred to in the complaint as government-sponsored-persuaded the Government to amend the Bill to secure that only these unions would be permitted to represent employees of B.O.A.C and B.E.A.C. The Government, later in 1946, was instrumental in setting up a National Joint Council for Civil Air Transport as machinery for the negotiation of terms and conditions of employment, in which the recognised unions, but not the complainant, were given representation. In amending the Bill and in setting up the Council, it is contended, the Government's object was " to protect the interests of the government-sponsored unions ". From 1946 the Corporations and the recognised unions are stated to have tried consistently to force members of the complaining organisation to resign from that union and join one or other of the recognised unions, the rules of which do not allow a worker to join unless he first resigns from the complaining organisation. Despite this, the complaining organisation retained a substantial number of its members.
4. 118. In 1948 an agreement was made in the National Joint Council whereby, as and when the recognised unions claimed 100 per cent membership in any shop or department of either Corporation, that shop or department would be debarred to members of the complaining organisation and the latter would not be allowed to work therein. It is claimed that this agreement is contrary to the rights of the employees guaranteed by 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), both of which have been ratified by the United Kingdom since the date on which the agreement was entered into.
5. 119. It is alleged further, and more specifically, that B.O.A.C, by debarring members of the complaining organisation from working in certain shops and by denying them promotion (one member is stated to have been promoted and then downgraded), is prejudicing employees because of their union membership, contrary to Article 1, paragraph 2 (b), of Convention No. 98, and, by making it obligatory for them to relinquish their trade union membership as an essential preliminary to continued employment after transfer to a new base, is acting contrary to Article 1, paragraph 2 (a) of that Convention. It is claimed that, as a result of this pressure, 200 members were forced to resign from the complaining organisation between November 1952 and November 1953. Moreover, it is contended, workers in B.E.A.C who are members of the complaining organisation are denied protection against acts of discrimination based on their union membership, contrary to Article 1 of Convention No. 98 - e.g., denial of the right to work in certain departments, denial of opportunities for working overtime, etc. In these various ways, it is contended, members of the complaining organisation are denied freedom of association and are prejudiced because of their union membership.
6. 120. In conclusion, the complaining organisation states that the Minister of Labour has refused to meet its deputations, to reply to its representations or to give it an opportunity to state its case.
   • ANALYSIS OF THE REPLY
7. 121. In its reply dated 15 May 1954 the Government states that no evidence is adduced in the complaint to show that the principles of freedom of association are violated in the United Kingdom or that the persons for whom the complaining organisation is acting are prevented from joining any trade union they may wish to join. The real point at issue is the action of an employer in recognising a certain trade union rather than another for purposes of negotiating terms and conditions of employment, a matter in respect of which a government assumes no obligation by ratifying the Freedom of Association and Protection of the Right to Organise and the Right to Organise and Collective Bargaining Conventions (Nos. 87 and 98) ; in fact, declares the Government, Article 1 of Convention No. 98 was so drafted as to exclude from its scope any question of the protection of one union against another. No unions in the United Kingdom are government-sponsored. All the allegations made are stated to be completely without foundation.

B. B. The Committee's conclusions

1. 122. The United Kingdom has ratified 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), and is therefore bound by the provisions of both these Conventions.
2. 123. Article 2 of Convention No. 87 is as follows:
   • Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
3. 124. The complaining organisation, on its own statement, is in existence as a registered trade union and claims that, despite the measures alleged to have been taken against it, it retained a substantial proportion of its membership. The only evidence of any restriction of the workers' fundamental right to become a member of a trade union of their own choice pursuant to Article 2 of the Convention is to be found in the allegation that a worker wishing to join one of the unions recognised by the employers when he is already a member of the complaining organisation must, under the rules of the recognised unions, first resign from the complaining organisation. In other words, the complaining organisation itself makes it clear that workers can exercise the right to join that organisation or may choose to join one of the recognised unions subject to the rules of the organisation concerned.
4. 125. The Committee considers therefore that the complainant has not offered sufficient evidence to show that the fundamental right to exercise the freedom to join a trade union of their own choice guaranteed in Article 2 of Convention No. 87 has been violated.
5. 126. But the exercise of the right of association is also governed by the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which requires to be read in this connection in conjunction with Convention No. 87, as it implements Article 11 of Convention No. 87, under which governments undertake " to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise ". It is a central point in the complainant's case that the free exercise of the right to organise is nullified because of discrimination in respect of employment alleged to be applied to members of the complaining organisation contrary to Article 1 of Convention No. 98.
6. 127. Article 1 of Convention No. 98 is as follows:
7. 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
8. 2. Such protection shall apply more particularly in respect of acts calculated to:
   • (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership ;
   • (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
9. 128. The Committee considers that it is not called upon to interpret formally the meaning of a provision in a Convention but that it should refer-in order to ascertain the intention of the Conference as to the scope of Article 1, paragraph 2, of Convention No. 98-to the report of the Committee of the International Labour Conference which dealt with this matter at the 32nd Session of the Conference in 1949 and to the decision taken by the Conference at that time.
10. 129. In 1949 the International Labour Office communicated to the governments, in accordance with the Standing Orders of the Conference, a preliminary report containing the text of the proposed international regulations on the application of the principles of the right to organise and to bargain collectively, Article 1 of which was as follows:
11. 1. Workers shall be accorded adequate protection against acts of anti-union discrimination in respect of their employment.
12. 2. Such protection shall be accorded, more particularly, against acts calculated to:
    • (a) make the employment of a worker subject to the condition that he shall not join a union or shall withdraw from a union to which he belongs ;
    • (b) cause the dismissal of or otherwise prejudice a worker by reason of his membership in a union or because of his participation in union activities outside working hours or, with the consent of his employer, within working hours.
13. 130. On the basis of the governments' replies the Office submitted to the Conference a report containing a text revised in the light of these replies, Article 1 of which was the text finally adopted and cited in paragraph 127 above. In that report, in explanation of the amendments made to the original text in accordance with the replies received, it was stated:
    • In Articles 1, 2 and 3 of the English text of the proposed Convention, the phrase " workers (and employers) shall enjoy adequate protection " has been substituted for the phrase " workers (and employers) shall be accorded adequate protection ". The United Kingdom Government, in proposing this amendment, points out, it would appear with justification, that the phrase " shall be accorded adequate protection " might be interpreted, incorrectly, as placing an obligation upon governments to prescribe by law the protection envisaged in the international regulations, even if such protection was already afforded under the system of industrial relations existing in the countries concerned.
    • In subparagraph (a) of paragraph 2 of Article 1, the Office has replaced the words "or shall withdraw from a union to which he belongs", by the words "or shall relinquish trade union membership " and, in subparagraph (b) of the same paragraph, the words " by reason of his membership in a union " are replaced by the words " by reason of union membership ".
    • In the opinion of the United Kingdom Government, which proposed these amendments, the words " or shall withdraw from a union to which he belongs " might be interpreted as being inconsistent with the right which representatives of employers and workers enjoy, in some countries, to enter into collective agreements making the employment of workers conditional upon their membership of a particular trade union.
    • The Government of the Union of South Africa considers that it is necessary to make it clear that Article 1 is aimed exclusively at prohibiting acts of discrimination committed in order to embarrass " trade union activities as such ". Without such protection, adds that Government, union security clauses might be interpreted, under the article as drafted, as being prejudicial to a worker who belonged to a union other than the union which negotiated the collective agreement. The Government of the Union of South Africa makes a similar observation with regard to Article 3 of the proposed Convention.
    • The Netherlands Government, on the other hand, is opposed to the inclusion of any union security clauses in the Convention. Similarly, the French Government states that, in its view, union security clauses permitting the engagement or continuation in employment of workers to be made dependent on their membership of or withdrawal from a specific trade union would, in those countries which have a plurality of trade unions, be incompatible with the principles of freedom of association and of the right to work.
    • Thus, the problem of union security clauses has once more been raised by several governments. It would certainly appear to be clear from the discussions which have taken place at recent sessions of the International Labour Conference that it would not be possible to reach agreement regarding the regulation of the problem of union security by means of an International Labour Convention. The only question which has to be considered is whether those States which permit union security clauses, either expressly under the terms of their national legislation, or in accordance with the established practice of certain occupations, would thereby be placed in a position in which it was impossible for them to ratify the Convention concerning the right to organise and to bargain collectively, even though in other respects they possessed a system of industrial relations completely in accordance with the provisions of the Convention. In fact, quite a number of countries of considerable industrial importance and possessing a particularly adequate system of protection of the right to organise would be faced by the choice of refraining from ratifying the Convention or of abandoning a practice deeply rooted in their traditions and accepted by the parties concerned.
    • If the Conference accepted the interpretation given by the Government of the United Kingdom to the amendment to the text proposed in paragraph 2 of Article 1, and embodied in the proposed Convention, a compromise solution might be found. In this way, countries (and especially those countries having a plurality of trade unions) would in no way be bound, under the provisions of the Convention, to permit union security clauses either in law or as a matter of custom, while other countries which allow such clauses would not be placed in the position of being unable to ratify the Convention.
    • When the Committee on Industrial Relations set up by the Conference to examine this matter presented its report to the Conference it declared that it had rejected a number of amendments to Article 1 intended to give expression to the right not to organise and stated:
    • The Committee finally agreed to express in the report their view that the Convention could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice.
    • This view was accepted by the Conference when it adopted the report.
14. 131. While observing that the facts of the case reveal that membership of one of the recognised unions carries with it a number of advantages and that membership of the complaining organisation has a number of disadvantages from the point of view of the worker's employment, the Committee considers that the managements in this case are acting in accordance with the union security arrangements agreed upon between the parties and the operation of which may, in effect, cause a worker " to withdraw from a union to which he belongs " but not " to relinquish trade union membership " and may cause a worker to suffer certain prejudice in his employment " by reason of his membership in a union " but not " by reason of union membership ". While considering that it is not called upon to express any opinion on the question of union security arrangements, the Committee considers, therefore, that the complaining organisation has not offered sufficient evidence to show that the Government, in allowing the subsistence of the union security arrangements now stated to be operating in the undertakings controlled by the air transport corporations, has failed to carry out any obligation imposed by Article 1 of the Right to Organise and Collective Bargaining Convention (No. 98), or that the managements concerned are committing acts prohibited by that Article of the Convention.
15. 132. In addition to alleging that its members are subjected to wrongful acts of discrimination, the complaining organisation alleges that trade union rights are infringed because the employers do not recognise that organisation as a bargaining agent and because it has been excluded from the National Joint Council in which collective agreements are negotiated. In the view of the complainant the recognised unions are aided by the employers in their plans to secure a monopoly of the right to represent the employees, the legislation under which the air transport corporations were set up having been amended to facilitate this objective. The Government's view appears to be that the question as to which unions an employer chooses to recognise or as to which unions, by their strength, can make recognition imperative, is a matter to be left to be settled by the parties concerned, the Government being under no obligation to intervene. The complainant, by stressing that the Corporations are "wholly government-owned " would appear to be attempting to show that, in this case, " corporation-employer " is synonymous with " government-employer ". The complainant also alleges that the Government has so amended the Civil Aviation Act as to exclude the possibility of the complaining organisation acting as a bargaining agent. In other words, while the Government attitude is that this case arises out of a jurisdictional dispute between unions to gain recognition from an independent employer who thereupon chooses to recognise and bargain with certain of them, the complainant's attitude is that the Government has settled the jurisdictional dispute in advance by legislative intervention and is, in any event, the real employer. It may, therefore, be of advantage, before examining the real substance of the issue, to ascertain clearly which of these two definitions of that issue is correct. To do so it is necessary to refer to the Civil Aviation Act, 1946, and to the parliamentary discussion on the Bill -documentation furnished by the complainant-in the course of which the Government is alleged to have introduced the amendment to the prejudice of the complaining organisation.
16. 133. Section 19 of the Civil Aviation Act, 1946 provides:
17. 19 (1). It shall be the duty of each of the three Corporations except in so far as the Corporation are satisfied that adequate machinery exists for achieving the purposes of this subsection, to seek consultation with any organisation appearing to the Corporation to be appropriate with a view to the conclusion between the Corporation and that organisation of such agreements as appear to the parties to be desirable with respect to the establishment and maintenance of machinery for(a) the settlement by negotiation of terms and conditions of employment ....
    • The words in italic were added by the amendment which the complaining organisation contends was inserted in order to prejudice it. The Government view at the time was expressed by the Lord Privy Seal, in moving the amendment, as follows:
    • The effect of my amendment is that except where one of the three Corporations felt there is adequate machinery now for discussion and negotiation, they should consult with any organisation which appears to the Corporation to be appropriate .... Responsibility is therefore cast upon the Corporations. There is an amendment on the Order Paper which would throw the responsibility on the Minister .... I suggest that the real basis for discussion of conditions and so on should be between the heads of the Corporations and the properly authorised representatives of the people employed by the Corporations.
18. 134. The Committee is of the opinion that there is nothing in this amendment to show any intention on the part of the Government to legislate on the question of union recognition beyond an intention to leave the matter to the Corporation employers and the union concerned. The Committee also considers that the above citations show that the Corporations were intended to act in this matter quite independently of the Government. Further perusal of the provisions of the Civil Aviation Act shows that the Corporations, subject to certain statutory duties and limitations and their liability to general directives in relation to matters affecting the national interest, are independent bodies responsible for their own internal administration and employment relationships.
19. 135. The Committee therefore considers that the only point to be examined is whether or not trade union rights are infringed because an inter-union dispute has resulted in the employers recognising certain unions for the purposes of collective bargaining while refusing to recognise the complaining organisation, the Government being unwilling to intervene in the matter. The action taken, according to the complainant, infringes the Right to Organise and Collective Bargaining Convention (No. 98), whereas the Government contends that no obligation in respect to this matter is imposed on a Government which ratifies that Convention.
20. 136. Article 4 of Convention No. 98 provides as follows:
    • 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.
21. 137. As the Committee has already noted, the Government, in section 19 of the Civil Aviation Act, 1946, has provided that the Corporations shall " seek consultation with any organisation appearing to the Corporation to be appropriate" with a view to the conclusion of agreements with respect to the establishment and maintenance of machinery for the settlement by negotiation of terms and conditions of employment " except in so far as the Corporation are satisfied that adequate machinery exists " for the purpose. But, as the Government makes clear, in the United Kingdom the question of actual union recognition by the employers for the purpose of collective bargaining is left to be settled freely by the parties concerned. The Committee considers, especially having regard to the interpretation given by the International Labour Conference to Article 1 of the Convention in relation to union security arrangements, that nothing in Article 4 of the Convention places a duty on the Government to enforce collective bargaining, by compulsory means, with a given organisation, an intervention which, as the Committee has already stated in a previous case, that relating to British Guiana, "would clearly alter the nature of such bargaining ".
22. 138. The Committee considers, therefore, that the complainant has failed to offer sufficient proof that the refusal of the employers to recognise the complaining organisation as a bargaining agent constitutes, in the present case, an infringement of trade union rights.