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

1. The Committee notes the information set out in the Government's report, and the observations of the Trades Union Congress (TUC) which were contained in a letter dated 13 January 1989. The Committee also notes the information supplied by a Government representative to the Conference Committee in 1988 and the subsequent discussion thereon, together with the further comments of the Committee on Freedom of Association in relation to Case No. 1261 (259th Report of the Committee, approved by the Governing Body in November 1988, paragraph 14).

2. Dismissal of workers at Government Communications Headquarters (GCHQ)

The Committee notes with regret that 13 employees at GCHQ have now been dismissed because of their refusal to give up membership of the union of their choice. The Committee notes that the Government remains of the view that Convention No. 87 cannot be examined in isolation from Conventions Nos. 98 and 151, and that Article 1(2) of the latter takes precedence over Convention No. 87. The Committee must again remind the Government that the supervisory bodies of the ILO have consistently taken the view that this is not the case, and that Article 2 of Convention No. 87 guarantees to all workers without distinction whatsoever, including public servants, the right freely to establish and to join organisations of their own choosing.

The Committee also notes that the Government considers that the functions carried out by the staff of GCHQ are in many cases identical with those carried out by members of the armed forces working in the same field. In support of this proposition the Government refers to the decision of the European Commission of Human Rights in Case No. 11603/85. The Government seems to suggest that this means that the civilian workforce at GCHQ should be regarded as falling within the scope of the "armed forces" exemption in Article 9 of the Convention. In this connection the Committee must point out that it has always taken the view that the armed forces and the police are the only categories of workers which, in accordance with the Convention, may be excluded from the guarantees provided therein (General Survey, 1983, paragraph 89). For these purposes, only workers who are recognised under national law or regulations as forming part of the army or the police can be regarded as coming within the scope of the exemption. This does not appear to be the case in relation to civilian employees at GCHQ.

The Committee notes with regret that the Government still feels that no useful purpose would be served by renewed negotiations with the relevant trade unions. The Committee remains of the view that such negotiations offer the most appropriate means of providing a resolution to this issue which is consistent with the requirements of the Convention. In the light of the foregoing, the Committee can only: (1) urge the Government to reconsider its position on the usefulness of further negotiations; and (2) reiterate that workers at GCHQ are entitled to join the organisation of their own choosing in accordance with Article 2 of the Convention.

3. Article 3 of the Convention

(a) General

The Committee notes that the Employment Act of 1988 received the Royal Assent on 26 May 1988. It thus became the fourth major piece of industrial relations legislation in the United Kingdom since 1980 (the others being the Employment Act of 1980, the Employment Act of 1982 and the Trade Unions Act of 1984).

This clearly suggests that the Government has engaged in a systematic attempt to restructure industrial relations law in the United Kingdom. The first and second measures in this legislative programme were principally concerned with the regulation of certain forms of strikes and other industrial action (notably, picketing and "secondary action"), and with union security arrangements. The Acts of 1984 and 1988 were more concerned with the internal rules and practices of trade unions.

The Committee fully recognises that the reform of the law on labour relations is both legitimate and necessary in order to ensure that the industrial relations system operates in an equitable and efficient manner, and that it adequately reflects current social and economic needs. Legislative change cannot, therefore, be criticised simply because it attempts to alter the status quo. However, where the position of organisations of employers and workers is altered to their disadvantage, then it is incumbent upon the Committee carefully to examine those changes in order to ensure that they are not incompatible with the guarantees provided by the Convention.

Given the nature and scale of legislative change in recent years, the Committee considers that it is now appropriate to examine the overall effect of the Acts of 1980, 1982, 1984 and 1988, and to consider whether they are consistent with the requirements of the Convention, with special reference to Article 3.

In carrying out this examination, the Committee has taken note of the complaint presented to the Committee on Freedom of Association by the Trades Union Congress (supported by the International Confederation of Free Trade Unions), the National Union of Mineworkers and the International Mineworkers' Organisation. This complaint (Case No. 1439) was contained in communications dated 22 February, 14 September, 2 November and 20 December 1988. The Committee has also taken note of the Government's response to this complaint as set out in communications dated 23 March 1988 and 16 January 1989. The Committee further notes that, at its meeting in February-March 1989, the Committee on Freedom of Association decided to adjourn its consideration of Case No. 1439 pending the examination of the relevant legislation by this Committee (262nd Report of the Committee on Freedom of Association, paragraph 9).

(b) Overall impact of the legislation

The Committee considers that there is no incompatibility between Article 3 and a number of aspects of the legislation which were challenged by the complainants in Case No. 1439: (i) the election of union officers; (ii) the removal of union trustees; (iii) union members' right of access to their union's accounting records; (iv) political expenditure by trade unions; (v) exclusion or expulsion from a union where a union membership agreement is in operation; (vi) access to the courts for union members who have a grievance against their union; (vii) ballots in respect of industrial action; and (viii) the role, as presently defined, of the Commissioner for the Rights of Trade Union Members.

The Committee does, however, consider that a number of other aspects of the legislation are not compatible with the requirements of the Convention. These relate to: the concept of "unjustifiable discipline" as set out in section 3 of the 1988 Act; section 8 of the 1988 Act concerning the indemnification of trade union members and officials; the erosion of legislative protection against civil liability for industrial action; and dismissals in connection with strikes and other industrial action.

The Committee is also concerned that certain of the provisions which it considers not to be incompatible with the requirements of the Convention - notably those relating to the Commissioner for the Rights of Trade Union Members - could be applied in a manner which would be inconsistent with the letter or the spirit of the Convention. Accordingly, it asks the Government in its future reports to provide information as to the practical operation of these provisions.

(c) "Unjustifiable discipline" and section 3 of the 1988 Act

The Committee notes that section 3(1) of the 1988 Act provides that all members or former members of a union have the right not to be "unjustifiably disciplined" by that union. "Discipline" for these purposes includes being expelled from the union or a branch or section thereof; the imposition of a fine; deprivation of, or denial of access to, the benefits, services or facilities which would otherwise be available by virtue of union membership; or being subjected to "any other detriment" (section 3(5)).

The grounds upon which disciplinary action would be regarded as "unjustifed" are set out in section 3(3). They relate principally to disciplinary measures imposed because of: a refusal to participate in industrial action; encouraging or assisting another person to refuse to participate in industrial action; and complaining that a union or an official thereof has acted, or proposes to act, in an unlawful manner.

The Committee recalls that one of the basic rights which is guaranteed by Article 3 of the Convention is the right of organisations of workers and employers to draw up their constitutions and rules free from any interference which would restrict this right or impede the lawful exercise thereof. It is clear that provisions which deprive trade unions of the capacity lawfully to give effect to their democratically determined rules are, prima facie, not in conformity with this right. Section 3 of the 1988 Act clearly has this effect, and on that basis is not in conformity with Article 3.

The Committee, nevertheless, considers that the right of organisations to draw up their constitutions and rules must be subject to the need to respect fundamental human rights and the law of the land (bearing in mind that Article 8(2) of the Convention stipulates that the law of the land shall not be such as to impair the guarantees provided for in the Convention). This means that it would not be inconsistent with the requirements of the Convention to require that union rules must not discriminate against members or potential members on grounds of race or sex. The same is true for provisions (such as section 3(3)(c) of the 1988 Act) which state that unions may not discipline members who, in good faith, assert that their union has breached its own rules, or the law of the land. However, the Committee is also of the view that the nature and extent of legislative incursions upon union autonomy must be limited to that which is absolutely necessary in order to achieve these objectives - otherwise the rights guaranteed by Article 3 would be deprived of all practical effect. It follows that proper respect for the guarantees provided by Article 3 requires that union members should be permitted, when drawing up their constitutions and rules, to determine whether or not it should be possible to discipline members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action. Section 3 of the Act should be amended so as to take account of this view.

(d) Indemnification of union members and officials

The Committee notes that section 8 of the 1988 Act makes it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence or for contempt of court. This prohibition applies even in the face of an express provision in the rules which permits indemnification, and where the offence or contempt was committed on the express instructions of the union itself.

The Committee has consistently taken the view that legislative provisions which are intended to ensure sound administration and the honest and efficient management of union funds and other funds and assets are not incompatible with the Convention (General Survey, 1983, paragraphs 182 and 183). However, such provisions should not be of such a character as to deprive unions of the right to draw up their constitutions or rules and to organise their administration and activities free of interference by the public authorities - nor should they deny trade unions the right to utilise their funds as they wish for normal and lawful trade union purposes. Section 8 of the 1988 Act appears to do both of these things, and as such is not compatible with the guarantees provided by Article 3 and should be repealed.

(e) "Immunities" in respect of civil liability for strikes and other industrial action

The Committee has always considered that the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests as guaranteed by Articles 3, 8 and 10 of the Convention (General Survey, paragraph 200). It has also taken the view that restrictions relating to the objectives of a strike and to the methods used should be sufficiently reasonable as not to result in practice in an excessive limitation of the exercise of the right to strike (General Survey, paragraph 226. See also paragraphs 218-220.).

The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests.

It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of "immunities" (or, more accurately, "protections") against tort action for trade unions and their members and officials. The current version of the "immunities" is to be found in the Trade Union and Labour Relations Act 1974.

The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker's own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from "secondary action" in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of "trade dispute" in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between "employers and workers" or "workers and workers" as was formerly the case.

Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or "sympathetic" action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to "sympathy strikes":

It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful. (General Survey, paragraph 217.)

Other changes to the definition of "trade dispute" in the 1974 Act also appear to impose excessive limitations upon the exercise of the right to strike: (i) the definition now requires that the subject-matter of a dispute must relate "wholly or mainly" to one or more of the matters set out in the definition - formerly it was sufficient that there be a "connection" between the dispute and the specified matters. This change appears to deny protection to disputes where unions and their members have "mixed" motives (for example, where they are pursuing both "industrial" and "political" or "social" objectives). The Committee also considers that it would often be very difficult for unions to determine in advance whether any given course of conduct would, or would not, be regarded as having the necessary relation to the protected purposes; (ii) the fact that the definition now refers only to disputes between workers and "their" employer could make it impossible for unions to take effective action in situations where the "real" employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the "employer" of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute; and (iii) disputes relating to matters outside the United Kingdom can now be protected only where the persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely be be affected in respect of one or more of the protected matters by the outcome of the dispute. This means that there would be no protection for industrial action which was intended to protect or to improve the terms and conditions of employment of workers outside the United Kingdom, or to register disapproval of the social or racial policies of a government with whom the United Kingdom has trading or economic links. The Committee has consistently taken the view that strikes that are purely political in character do not fall within the scope of the principles of freedom of association. However, it also considers that trade unions ought to have the possibility of recourse to protest strikes, in particular where aimed at criticising a government's economic and social policies (General Survey, paragraph 216). The revised definition of "trade dispute" appears to deny workers that right.

The Committee considers that the overall effect of legislative change in this area since 1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible in order to enable workers and their unions adequately to protect and to promote their economic and social interests, and to organise their activities (General Survey, paragraphs 200 and 226). Accordingly, it would ask the Government to introduce amendments which enable workers to take industrial action against their "real" employer and which accord adequate protection of the right to engage in other legitimate forms of industrial action such as protest strikes and sympathy strikes, as guaranteed by Articles 3, 8 and 10 of the Convention.

(f) Dismissals in connection with industrial action

The Committee considers that it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal. The Committee on Freedom of Association has adopted a similar approach (see Digest of Decisions and Principles of the Committee on Freedom of Association, 3rd edition, 1985, paragraphs 442, 444, 445, 555 and 572).

In this connection, the Committee notes that common law strikes and most other forms of industrial action constitute a repudiatory breach of the individual worker's contract of employment. This has the consequence that the employer may lawfully treat the employment relationship as at an end without more ado. This happens only infrequently in practice. But it can happen, and the Committee is aware that there have been a number of situations in recent years where employers have used the fact that their employees were on strike as an excuse for dispensing with the services of their entire workforce, and recruiting a new one.

The Committee also notes that a lock-out would also constitute a repudiatory breach of the contracts of employment of the workers concerned. However the common law does not provide a means whereby those workers could obtain reinstatement in their employment, no matter how arbitrary or unreasonable the employer's behaviour had been. Furthermore, it would be in only very exceptional circumstances that such workers could obtain other than nominal damages at common law.

It is clear, therefore, that the common law does not accord workers who have been dismissed in connection with a strike, lock-out or other form of industrial action the right to present a complaint against that dismissal to a court or other authority independent of the parties concerned. The same is true of statutory provision relating to unfair dismissal - subject to the limited measure of protection which is afforded to those who are subjected to "discriminatory dismissal" within the meaning of section 62 of the Employment Protection (Consolidation) Act 1978 (as amended by section 9 of the 1982 Act). The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour; and (ii) because an employer can re-hire on a discriminatory basis so long as there is a gap of three months between the dismissal of the "victimised" workers and the re-hiring. Consequently, the Committee asks the Government to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above.

(g) Complexity of the legislation

Finally, the Committee feels bound to express its concern at the volume and complexity of legislative change since 1980. This leads the Committee to the conclusion that some reconsideration of the form and content of the legislation would be advantageous. The Committee is reinforced in this view by four considerations in particular:

(i) Whilst it is true that most of the legislative measures under consideration are not incompatible with the requirements of the Convention, there is a point at which the cumulative effect of legislative changes which are in themselves consistent with the principles of freedom of association may nevertheless, by virtue of their complexity and extent, constitute an incursion upon the rights guaranteed by the Convention.

(ii) The effect of piecemeal reforms, often introduced in order to achieve quite narrow objectives, has been to generate uncertainty in some areas of the law. This in turn may lead to unintentional breaches of the Convention and may inhibit lawful industrial action.

(iii) The inherent flexibility of the common law system further exacerbates these difficulties, given that the exact scope of the law, and the impact of statutory provisions upon it, may not be clear until the matter has been determined by a court of law.

(iv) Many of the recent changes have had as one of their principal aims the prevention of abuse of industrial power by trade unions. They have also sought to give clearer protection to the "rights" of the individual. The legislation appears to demonstrate a lesser concern for the "rights" of trade unions. The Committee considers that a more positive statement of these rights would be of advantage.

The Committee trusts that the Government will give positive consideration to these points, and asks it to indicate in its next report whether it has taken, or is contemplating taking, measures to codify, clarify and simplify its legislation concerning industrial relations.