Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the report of the Government, and the communications from the Trades Union Congress (TUC) dated 23 December 1992, 5 February, 28 May and 27 August 1993. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1618 287th Report of the Committee, approved by the Governing Body at its 256th Session (May 1993)].

1. Article 1 of the Convention. (a) Denial of employment on grounds of trade union membership or activity. In reply to the Committee's previous requests for detailed information on the protection available against denial of employment on grounds of past trade union membership or activity, and the remedies available to those subjected to unlawful discrimination and the penalties which may be imposed in cases of such discrimination, the Government refers the Committee to the series of observations it made to the Committee on Freedom of Association in respect of Case No. 1618, and provides certain additional information. The Committee notes with interest from this additional information that the maximum amount of compensation payable to an individual who has been unlawfully refused employment for reasons relating to trade union membership is now 11,000 and that the Economic League has now been disbanded. The Government further states that the Trade Union Reform and Employment Rights Act 1993 will have the effect of enhancing United Kingdom compliance with Article 1. Under United Kingdom law, the right not to be unfairly selected for redundancy on grounds of trade union membership, activities, or non-membership had previously been subject to qualifying conditions; full-time employees in general had to have two years' continuous service. Paragraph 1 of Schedule 7 to the 1993 Act removes these qualifying conditions. Employees selected for redundancy because of their union membership or activities, regardless of their length of service or hours of work, will henceforth be able to complain of unfair treatment and obtain a remedy under the law.

While noting all of the above information and recognizing that United Kingdom legislation, in the form of the Trade Union and Labour Relations (Consolidation) Act 1992, may provide some remedy against acts of anti-union discrimination, the Committee considers that the existence of legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice, and that machinery appropriate to national conditions should be established, where necessary, to ensure respect for the right to organize. In this respect, the Committee, like the Committee on Freedom of Association in Case No. 1618, regrets that the Government did not take any measures to implement the recommendations of the House of Commons Select Committee to the extent necessary to protect workers against discrimination in relation to trade union membership or activities.

(b) Trade Union Reform and Employment Rights Act 1993. In its communications of 28 May and 27 August 1993 which have been referred to the Committee on Freedom of Association (Case No. 1730), the TUC contends that section 13 of the Trade Union Reform and Employment Rights Act 1993 discriminates against trade union members and puts them at a disadvantage in their employment. The Committee notes the Government's statement that it is currently preparing its observations on that case.

(c) Dismissals in connection with industrial action. In its 1992 observation under Convention No. 87, the Committee had once again requested the Government to introduce legislative protection against dismissal and other forms of discriminatory treatment in connection with strikes and other industrial action.

In its response to the Committee's 1992 observation, the Government once again points out that Convention No. 87 is concerned with the protection of the freedom to form employers' and workers' organizations and the rights of such organizations, but that the treatment of individual workers (including the matter of dismissal or disciplinary penalties being imposed by an employer) gives rise to issues that are the subject of other Conventions, including Convention No. 98. The Government further indicates, with regard to the particular points made in the TUC's communication of 22 January 1992 and as quoted in the Committee's 1992 observation, that it is incorrect to state that: (i) the provisions of section 62A of the Employment Protection (Consolidation) Act 1978 can have the effect of denying an employee's right to claim unfair dismissal if the employee is not participating in unofficial action at the time of the dismissal; and (ii) the changes made by the Employment Act 1990 to the law on union liability for acts of organizing industrial action have the effect that a union may be liable for any such act by its "members" (as opposed to its officials or those associated with such officials in particular ways).

The Committee notes however that under section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992, an employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action which includes secondary action (section 224). The Committee further notes that the Trade Union Reform and Employment Rights Act 1993 broadens the definition of what could constitute an unofficial industrial action since section 7 repeals sections 115 and 116 of the 1992 Act (on financial assistance towards expenditure on certain ballots and obligations of employers to make premises available to organize a strike vote) and section 17 introduces the obligation of postal ballot to call for industrial action.

The Committee therefore can only reiterate its previous comments to the effect that workers should enjoy real and effective protection against dismissal or any other disciplinary measure taken by reason of their participation, whether actual or proposed, in legitimate forms of industrial action.

Moreover, the Committee would invite the Government and the TUC to provide particulars on the legal and factual situation in this respect, including examples of judicial or quasi-judicial decisions involving the application of the relevant provisions.

2. Article 4. Determination of school teachers' pay and work conditions in England and Wales. In its 1992 observation, the Committee had noted the communications received from various trade union organizations, which mainly concerned the determination of teachers' pay and work conditions in England and Wales, in the light of the School Teachers' Pay and Conditions Act, 1991, which came into force on 22 August 1991, and had stated that it would look into these issues in the light of the observations transmitted by the Government.

In its report the Government states that it took careful note of the Committee on Freedom of Association's consideration of Case No. 1518, and that it had been particularly concerned to ensure that teachers were treated in a way which recognized and enhanced their professional status. It believed that the establishment of a Review Body for teachers was the best way of achieving that. As a result, the Secretary of State for Education and Science announced on 17 April 1991 the Government's decision to withdraw the legislation giving effect to the proposals for negotiating arrangements which had previously been considered by the Committee and the Committee on Freedom of Association. The Government decided instead to establish an independent Review Body to make recommendations on the pay and conditions of teachers in England and Wales. As a result, the situation which was previously criticized no longer exists. The Government further points out that the National Association of Schoolmasters/Union of Women Teachers (NAS/UWT) withdrew its previous complaint in a communication of 17 December 1991 to the ILO, and that all but one of the six national unions representing teachers in service have publicly endorsed the establishment of the Review Body.

With respect to the Committee's request for information on the practical functioning of the new machinery in its 1992 observation, the Government indicates that the Review Body was appointed by the Prime Minister under the School Teachers' Pay and Conditions Act 1991 and reports to him. The Review Body is under a statutory duty to give notice of any matters referred to it by the Secretary of State, and of any directions which he should give to it, to: (i) bodies representing schoolteachers; (ii) associations of local education authorities; and (iii) bodies representing the interests of voluntary schools, and grant-maintained schools. The Review Body also has a statutory duty to afford the above bodies a reasonable opportunity to submit evidence and make representations. In the same way, section 2(1) of the Act obliges the Secretary of State to consult the bodies listed above before making a Pay and Conditions Order. If he fails to consult them, any Order he makes could be challenged through the courts and declared void.

The Committee notes from the Government's report that the Review Body is not subject to a predetermined financial constraint. The Secretary of State is able to give directions to the Review Body as to considerations to which it is to have regard. However, having had regard to those considerations, the Review Body is free to make whatever recommendations it thinks fit. Furthermore, the Government has undertaken to implement those recommendations unless there are clear and compelling reasons not to do so. Where the Government does propose materially to modify the Review Body's recommendations, Parliament has the opportunity to debate and vote on that decision.

As regards the Review Body's working practices, the Government submits that an essential part of the process is that both employers and teacher associations submit evidence and put their case directly to the Review Body. While those elements of a teachers' contract of employment which relate to pay, professional duties and working time are determined by statute on the basis of the Review Body's recommendations, all other conditions of service, such as sick pay and maternity leave, can be decided by negotiation between teachers and their employers. The Government further submits that for the 1992 and 1993 rounds, the Association of Teachers and Lecturers, the National Association of Head Teachers, the National Association of Schoolmasters/Union of Women Teachers, the National Union of Teachers, the Professional Association of Teachers, the Secondary Heads Association, and the National Employers' Organisation for School Teachers:

- submitted written evidence to the Review Body;

- made face-to-face representations to discuss their submissions and the submissions of the other parties (which the Review Body arranged to circulate on receipt);

- submitted written comments on response to the Secretary of State's consultation on the draft Pay and Conditions Order; and

- accepted the Secretary of State's invitation to make any points direct to him (save that the National Association of Head Teachers declined a meeting in 1992).

In both years there was a further period of technical consultation with all teacher unions and the employers' associations on the draft pay and conditions document and its accompanying circular of guidance. In 1993 this has also involved a number of meetings at official level. The Review Body's 1992 Report recommended an across-the-board increase of 7.5 per cent - well above inflation, and significantly higher than current levels of increase in the public and private sectors generally, which the Government accepted in full, providing an additional grant of 60 million to help local education authority employers to meet the full cost of the award. In 1993 the Review Body recommended a general pay increase for qualified teachers of 1 per cent on 1 April 1993, and of 1.5 per cent for unqualified teachers, with a major restructuring of pay arrangements for qualified classroom teachers from 1 September. The Government implemented the new pay structure recommended, but modified the values of the new pay spine from 1 September, and the pay rates applying to some teachers between 1 April and 31 August to ensure consistency with its approach to pay for all employees in the public sector.

The Committee notes the information provided by the Government, and trusts that the new pay review machinery for school teachers will not be applied in practice so as to hamper the freedom of collective bargaining.