Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the Government's report. It also notes: (i) the discussion which took place in the Conference Committee in 1989; (ii) the comments of the Trades Union Congress (TUC) in a number of communications in 1989 and 1990; (iii) the further comments of the Committee on Freedom of Association in relation to Case No. 1261 (275th Report of the Committee, November 1990, paragraph 11); and (iv) the conclusions of the Committee on Freedom of Association in Case No. 1540 (277th Report of the Committee, February-March 1991, paragraphs 47 to 98).

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

By its communications of 21 December 1989 and 14 June 1990 the TUC states that, following the discussion in the Conference Committee in 1989, it had written to the Prime Minister indicating that the trade unions would adopt a constructive approach to negotiations in relation to the GCHQ issue so that the Government could honour its commitments under Convention No. 87 and at the same time meet its requirements regarding the maintenance of services at GCHQ. According to the TUC, the Prime Minister did not make any response to the proposal that discussions should be reopened as suggested by the Committee of Experts and the Conference Committee.

In its report the Government reiterates its view that the provisions of Convention No. 87 must be read subject to those of Convention No. 151 and that the work performed by civilian staff at GCHQ falls within the "spirit" of the "armed forces exemption" in Article 9 of Convention No. 87.

As concerns the Committee's suggestion that it should undertake renewed negotiations with the relevant unions, the Government states that it remains unconvinced that to do so would serve any useful purpose. It points out that discussions were held immediately after the Government's announcement in January 1984 that workers at GCHQ were no longer to be permitted to be members of national trade unions. In the course of those discussions the unions had urged that a "no disruption agreement" would provide adequate safeguards in relation to continuity of service at GCHQ. These proposals were given very careful consideration by the Government, but had to be rejected as they did not provide sufficient guarantee that conflicting pressures would not produce difficulties in the future. This conclusion was supported by the fact that the draft agreement submitted by the Council of Civil Service Unions was subsequently repudiated by two of the main unions concerned because they were not prepared to contemplate the conclusion of a "no-strike agreement" at GCHQ. The Government acknowledges that the unions have subsequently indicated that they might change their position on this point. According to the Government, this possibility itself supports its position in relation to the futility of reopening discussions on this matter.

The Government goes on to point out that employees at GCHQ are permitted to join the Government Communications Staff Federation (GCSF), and that over 50 per cent of them have in fact done so. In its communications of 21 December 1989 and 14 June 1990 the TUC points out that the Certification Officer (who is an independent statutory officer responsible for certain administrative matters relating to trade unions and employers' associations) had declined to issue the GCSF with a certificate of independence. According to the TUC, this decision underlines the fact that employees at GCHQ are denied even the basic right to belong to an independent trade union.

The Government states that this decision, which is presently under appeal, does not mean that the GCSF is not a "trade union". On the contrary, it is entered on a statutory "list" of trade unions but it is true that the union and its members do not enjoy certain statutory rights in relation to matters such as occupational health and safety, consultation in advance of redundancies, etc. However, according to the Government, management at GCHQ in practice extends to the GCSF facilities which are "at least equivalent" to almost all of these statutory entitlements.

The Committee can only express its regret at the apparent lack of progress in relation to this matter which was first considered by it in 1985. It remains of the opinion that, under the legislation presently in force, workers at GCHQ cannot be regarded as members of the "armed forces" for purposes of the application of Article 9 of the Convention. The Committee notes that attempts to obtain a "no-strike" agreement in 1984 were unsuccessful. Nevertheless, recalling that workers whose functions relate to security matters would fall into the category of those in respect of whom it is permissible to curtail the right to strike, the Committee considers that these workers should not be denied the right to belong to the organisations of their own choosing as guaranteed by Article 2 of the Convention.

The Committee notes that more than 50 per cent of workers at GCHQ have elected to join a body which possesses some, but not all, of the characteristics of a trade union under British law and which is treated by management in the same manner as if it were a fully-fledged trade union. The fact that workers at GCHQ are permitted to join this organisation, but no other, seems to indicate that the Government does not object to trade union membership per se among those workers, but rather that it has continuing objections to membership of certain unions.

Recalling that it is now more than six years since the Government last held formal discussions with the unions on this matter, and noting the stated preparedness of the TUC to adopt a positive approach to renewed negotiations, the Committee considers that the time is right for a resumption of dialogue; accordingly, it again urges the Government to reconsider its position in relation to the reopening of discussions with public service unions with a view to determining whether it might be possible to arrive at satisfactory arrangements in relation to the maintenance of an appropriate level of service at GCHQ at all times.

3. Article 3 of the Convention

(a) General

In its 1989 observation the Committee identified a number of incompatibilities between the Employment Acts of 1980, 1982 and 1988 and the Trade Union Act of 1984 and the requirements of the Convention. These incompatibilities related to: (i) the concept of "unjustifiable discipline" as set out in section 3 of the 1988 Act; (ii) section 8 of the 1988 Act concerning the indemnification of trade union members and officials; (iii) the erosion of legislative protection against civil liability for industrial action; and (iv) dismissals and disciplinary action in connection with participation in strikes and other industrial action. The Committee also noted: (a) that certain provisions which it considered not to be incompatible with the Convention - notably those relating to the Commissioner for the Rights of Trade Union Members - could be applied in a manner which was not in conformity with the letter or spirit of the Convention; and (b) the volume and complexity of legislative change since 1980.

The Committee notes the observations of the Government on these points.

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

The Committee considered that section 3(3)(c) of the 1988 Act, which states that trade unions may not discipline members who, in good faith, assert that their union has breached its own rules or the law of the land, was not incompatible with Article 3 of the Convention. It had, however, concluded that those parts of section 3 which deprive trade unions of the right to discipline their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action, constituted an impermissible incursion upon the guarantees provided by Article 3.

In its report, the Government states that it finds it difficult to understand why the Committee considers section 3(3)(c) to be compatible with the Convention, but that the provisions relating to strikes and other industrial action are not. In the opinion of the Government the purpose of section 3 is to ensure that trade unions respect the views of individual members and allow them the freedom to make up their own minds and follow their own consciences without the fear of disciplinary action by their union.

The Committee notes the observations of the Government in relation to this matter. It remains of the view, however, that the provisions of section 3 prohibiting unions from disciplining their members who refuse to take part in lawful industrial action restricts the capacity of organisations of workers to draw up their constitutions and rules as guaranteed by Article 3 of the Convention. The Committee considers that it should be for the members of organisations themselves to decide what the rules of those organisations are to be. The Committee agrees that the guarantees provided by Article 3 are conditioned by respect for fundamental human rights, such as the right not to be subjected to discriminatory treatment on grounds of race or sex. However, the Committee considers that it is not compatible with the Convention to prevent the members of a trade union from freely adopting rules which provide for the imposition of disciplinary sanctions upon members of the union who refuse to comply with or seek to subvert democratic decisions by members of the union to take lawful industrial action. The Committee therefore requests the Government to revise its legislation so as to permit unions and their members to adopt and implement such rules if they so choose.

(c) Indemnification of union members and officials

Section 8 of the 1988 Act makes it unlawful for the property of any trade union to be applied so as to indemnify any individual in respect of any penalty which may be imposed upon that individual for an offence or for contempt of court, and provides for the recovery by the union of any sums improperly paid by way of such indemnity. In its 1989 observation the Committee concluded that this provision appeared to be incompatible with Article 3 of the Convention.

In its report the Government states that it considers that it is wrong in principle for a trade union to be able, with impunity, to use its funds to indemnify any individual in respect of a penalty imposed by a court for a criminal act or for contempt of court. It also states that nothing in section 8 involves interference by the public authorities in the capacity of trade unions to draw up their constitutions and rules and to organise their administration and activities as they see fit.

The Committee recognises that section 8 does not expressly state that unions may not adopt rules to this effect, but it appears to achieve the same effect by virtue of the fact that any payments made in accordance with any such rule may be recovered in accordance with subsections (2) and (3) of section 8. Accordingly, the Committee considers that the legislation should be amended so as to allow the adoption and implementation of rules which permit the indemnification of members or officials in respect of legal liabilities they may have incurred on behalf of the union.

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

In its 1989 observation the Committee pointed out that amendments which had been introduced since 1980 had the effect of removing protection against common law liability from certain forms of industrial action in respect of which it considered that protection ought to be available. In particular: (i) it was now virtually impossible for workers and unions lawfully to engage in any form of boycott activity or sympathetic action against parties not directly involved in a given dispute; (ii) the protections no longer applied to situations where unions and their members had "mixed" industrial, social and political motives for what they did; (iii) the definition of "trade dispute" was such that it was impossible for workers and unions to take effective industrial action in situations where the "real" employer with whom they were in dispute took refuge behind one or more subsidiary companies which were technically the "employer" of the workers concerned, but which lacked the capacity to take decisions which could effectively resolve the dispute; and (iv) there was very little scope for workers to take industrial action in the United Kingdom in support of workers outside that country, or to protest the social or racial policies of a government with which the United Kingdom had trade or economic links. Accordingly, the Committee asked the Government to introduce amendments which would enable workers lawfully to take industrial action against their "real" employer and which accorded adequate protection to the right to engage in other legitimate forms of industrial action such as protest and sympathy strikes.

In its report the Government states that the Committee's observation fails to take adequate account of the differences in British law as it applies to the position of persons taking industrial action as opposed to the position of those who call for or organise such action. It points out, for example, that section 16 of the Trade Union and Labour Relations Act, 1974 prevents courts from ordering workers to work or attend for work in any circumstances, whilst other provisions provide legislative protection for those who organise industrial action in contemplation or furtherance of a trade dispute or who call upon workers of an employer other than that directly involved in the dispute not to cross a lawfully conducted picket-line. The Government also considers that it is far from clear exactly what amendments to current legislation the Committee considers necessary in order to ensure compatibility with the Convention.

The Committee recognises that British legislation provides a significant measure of protection against common law liability for individuals and trade unions who organise or participate in certain forms of industrial action, and that workers cannot be ordered to return to, or remain at, work. However, it remains of the view that some of the legislative changes which have been introduced since 1980 have had the effect of withdrawing statutory protection from various forms of industrial action which, in its opinion, ought not to attract legal liability. It must, therefore, repeat its request that the Government introduce legislation, following consultation with the Office if need be, to enable workers and their unions to engage in industrial action in the circumstances discussed in detail in the Committee's 1989 observation, and summarised above.

In communications of 19 January and 21 December 1990, the TUC states that the Employment Act, 1990 is not in conformity with the Convention by virtue of the fact that it further narrows the range of situations in which workers may lawfully take secondary action. The Government states that since this measure received the Royal Assent outside the period covered by its report, it would not be appropriate to respond at this time to particular points which relate to it. The Committee asks the Government to supply full particulars as to the purpose and effect of this measure in its next report.

(e) Dismissals in connection with industrial action

In its 1989 observation the Committee had asked the Government to introduce legislative protection against dismissal and other forms of discriminatory treatment in connection with strikes and other industrial action so as to bring law and practice into conformity with the requirements of the Convention. The Committee notes that the Committee on Freedom of Association reached the same conclusion in Case No. 1540.

In its report the Government points to a number of features of British industrial relations law and practice which in its opinion make it unnecessary or inappropriate to introduce legislative measures such as those requested by the Committee in its previous observation.

Whilst noting the views expressed by the Government in its report, and in its observations to the Committee on Freedom of Association in relation to Case No. 1540, the Committee remains convinced that conformity with the Convention requires that workers should enjoy effective legislative protection against dismissal or other disciplinary action in respect of their participation or proposed participation in strikes or other forms of industrial action.

As concerns the effects of the Employment Act, 1990, in this context, the Committee notes that in its decision in Case No. 1540 the Committee on Freedom of Association concluded that section 62A of the Employment Protection (Consolidation) Act - which was inserted by section 9 of the 1990 Act - "does appear to narrow the scope of protections which the Committee has already determined to be inadequate in terms of respect for the principles of freedom of association", and called upon the Government to introduce suitable legislative amendments to bring section 62A into conformity with those principles (277th Report, paragraph 96). The present Committee endorses the conclusions of the Committee on Freedom of Association in this respect.

(f) Complexity of the legislation

In its 1989 observation the Committee expressed its concern at the volume and complexity of legislative change in relation to the matters covered by the Convention since 1980, and suggested that some reconsideration of the form and content of the legislation would be advantageous. The Committee notes that since that time the Employment Acts of 1989 and 1990 have affected further change in this area.

In its report the Government considers that the Committee underestimates the advantages in the British context of utilising the familiar framework of the common law, and the problems which could follow from an attempt to adopt a different approach to the implementation of the guarantees embodied in the Convention to that which has consistently been pursued over the years. The Government attaches to its report a number of examples of free explanatory booklets which explain the relevant legislation as it applies to employers, workers and unions, in order to show that the law is in fact readily intelligible to those whom it most directly affects. It also indicates that it keeps under active review the possibility of introducing consolidating legislation which would bring together in one Act all of the provisions relating to industrial relations and trade unions which are at present to be found in a number of different pieces of legislation. It states that it would be willing to bring the necessary legislation forward when resources and the legislative timetable permit, but points out that such a measure would not make any substantive changes to the relevant law.

The Committee notes with interest that the Government is prepared to consider the introduction of a consolidation measure when time and resources permit. Whilst appreciating that such measures do not normally effect substantive legal change, the Committee nevertheless considers that the Government should use the occasion of such a consolidation to bring its law and practice fully into conformity with the requirements of the Convention, and asks it to report on any measures taken in this regard.