Informe definitivo - Informe núm. 284, Noviembre 1992

1. 361. The Isle of Man Trades Council presented a complaint against the Government of the United Kingdom (Isle of Man) alleging violations of freedom of association in a communication received on 11 March 1992.
2. 362. The Government sent certain observations on the allegations in a communication dated 7 September 1992.
3. 363. The United Kingdom declared applicable, without modification, to the Isle of Man both 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).

A. The complainant's allegations

1. 364. In its letter received on 11 March 1992, the Isle of Man Trades Council alleged that Parliament had passed the Trade Unions Act of 1991 in violation of workers' rights in such a way as to lead to the destruction of any effective workers' organisation on the Island. It points out that the Parliament (called the Tynwald) does not operate on party lines and there are no parties except for the small Labour Party whose members hold ministerial posts in the Government. The complainant considers this point important since the Trades Council is the only real opposition to the Government. Although the Act is not yet in force, the complainant believes that it will become law soon, and it thus requests the Committee to ask the Government not to bring it into force until there has been a report on it.
2. 365. The complainant explains that it is a federation of 15 trade unions founded in the 1930s to pursue the interests of organised labour. It is consulted by the Government through the National Economic Development Council and is invited to send delegates to various statutory bodies. According to the complainant, the Isle of Man is self-governing and constitutionally independent of the United Kingdom although the British Monarch has a constitutional title and is represented on the Island by the Lieutenant Governor; legislation enacted by the Parliament must be assented to by the Queen in Council. The United Kingdom is responsible for the Island's foreign affairs and defence matters, but follows the Island's decisions as to which Conventions should be declared applicable to this non-metropolitan territory. Thus, once applicable, compliance with any particular Convention is the responsibility of the Island's Government. That Government last reported on its application of Convention No. 87 in 1990.
3. 366. The complainant alleges that the provisions in the Trade Unions Act dealing with registration and cancellation of registration of workers' organisations violate Conventions Nos. 87 and 98. First, with regard to Article 2 of Convention No. 87, the Act gives the Chief Registrar wide discretionary powers to register such a body. Secondly, with regard to Article 4, the Act gives the Chief Registrar wide discretionary powers to cancel any such registration before the matter has been considered by the competent judicial authority. Thirdly, with regard to Article 5, the Act requires fulfilment of detailed administrative procedures for the formation of federations, confederations and for international affiliation. Fourthly, the complainant considers that the circumstances prevailing in the Isle of Man (geographical dispersion of the workforce, educational standards, employment policies) are so cumbersome as to amount to a passive restriction on the right to organise by reason of the administrative regulations imposed on union officials. Fifthly, the Act imposes criminal liability on individual union officers and members, as well as loss of registration, if these administrative formalities are not complied with.
4. 367. Unions must be registered under the Act to obtain certain legal protections. Section 1 states that "no trade union ... and no official or member of a trade union ... shall do any act in furtherance of the purposes for which the union is formed unless it has been registered ...". Since the Act does not define "furtherance of the purposes", it appears that the simple discussion by a group of workers of the setting up of a union could contravene the Act; this would mean that only those unions already in existence could be recognised unions. If such a monopoly situation were created, workers would be unable to choose an organisation of their own choosing. This would violate Article 2 of Convention No. 87.
5. 368. In addition, when section 23(1) (definition of "trade union") is read with section 1, it appears impossible for any ad hoc group of workers to discuss employment conditions with an employer without being registered. Criminal sanctions would ensue for negotiations with unregistered groups. In this connection the complainant points out that there is comparatively low union membership on the Island and, traditionally, non-unionised white-collar workers group together to settle a specific dispute without having a formal organisation. According to the complainant, it is feasible that employers and management might be guilty of aiding the commission of an offence under the Act if they entered into negotiations with two or more workers who were not registered as a trade union.
6. 369. The complainant considers that section 4 of the Act is incompatible with Article 4 of the Convention as it gives the Chief Registrar wide powers to cancel a registration, for example, if he is satisfied that the registration has been obtained by fraud or mistake. Since "fraud or mistake" are not defined in the Act, it points out that the mistake might be one committed by the Registrar's office. It adds that cancellation ensues where the purposes of the union have become "unlawful" but, there again, the term is not defined. Cancellation can also occur for breach of certain formalities, such as: (1) not sending information on changes in a union's particulars within a month, which is particularly onerous when changes go through a number of stages and no specific date can be set for the running of the one-month time-limit; (2) not keeping and submitting financial accounts and returns; but no time date is mentioned in the Act for such submission. Section 5 of the Act permits appeals to the High Court against cancellation, but there is no suspensive effect: action taken by the union in the period before the appeal is decided would be unlawful. While section 4(2) requires the Registrar to give two months' notice of a proposed cancellation to the concerned union, the complainant considers that this is insufficient, especially in the case of the branch of an English union which would probably be required to consult its head office in England. In addition, there is no possibility of the union putting up a defence to a proposed cancellation if found guilty of contravening the formalities because the Registrar has unfettered power to proceed on these formalistic grounds.
7. 370. Lastly, the complainant alleges that section 3(3) of the Act (amendment of a union's registration to be applied for within one month of a change in particulars) is particularly draconian as it places heavy criminal penalties on individual union officers and members. Most unions on the Island are small and do not have full-time officials and are isolated from the head offices in England. In the complainant's opinion, lay members will be deterred from taking an active part in union affairs because of these criminal penalties.
8. 371. According to the complainant, the 1991 Act is complex and cumbersome and amounts to a passive restriction on the right of Isle of Man workers to organise. It takes no account of the circumstances of trade unions on the Island, which do not have sophisticated full-time administrative support staff; it places heavy burdens on lay members. The Act will destroy workers' organisations or will lead to centralisation with workers being forced into joining a major union which may not truly reflect their trade interests.

B. The Government's reply

1. 372. In its letter of 7 September 1992, the Government contests the allegation that the requirement for registration of trade unions prevents workers from establishing and joining organisations of their own choosing without previous authorisation and that the Chief Registrar's power to cancel the registration of a union is incompatible with Article 4 of Convention No. 87. It does not consider that it is failing in any way to fulfil its obligations under the Convention. It submits that the complaint should be rejected by the Committee on Freedom of Association. Registration of trade unions and employers' associations is incidental to the principal objectives of the 1991 Act, namely to provide protection to workers and trade unions involved in industrial action, subject to proper safeguards, including provision for ballots, and to ensure that the funds of trade unions and employers' associations are properly administered.
2. 373. According to the Government, the system of registration with the Chief Registrar is similar to the registration of charities under the Charities Registration Act 1989, under which all charities in the Isle of Man must be registered with the Chief Registrar (a copy of the Charities Registration Act 1989 is supplied). It was never intended, nor for the reasons set out below could the Act be used, to deprive workers of the right to establish or join organisations of their own choosing without previous authorisation, in terms of Articles 2 or 5 of the Convention. Similarly, it was not intended, nor for the reasons set out below could the Act be used, to cause workers' and employers' organisations to be dissolved or suspended by an administrative authority.
3. 374. As regards the requirement for registration, the Government notes that it is claimed that section 1, taken together with the definition of "trade union" in section 23(1), makes it impossible for any group of workers to discuss the possibility of establishing a new union, or of discussing employment conditions with their employer, without being registered as a union. However, it points out that this suggestion ignores the words in section 23(1), namely "In this Act 'trade union' means an organisation (whether permanent or temporary) which ...". According to the Government, a group of workers discussing the establishment of a new union could not possibly be considered to be an "organisation". Similarly, where a group of workers who do not belong to a trade union have meetings from time to time with their employer over conditions of work, this would not constitute such a group of workers as an "organisation". The argument that the Act would prevent new unions being established is quite unrealistic. It is equally unrealistic to suggest that the Act would prevent a group of workers, who do not belong to a union and who have no formal organisation, from negotiating together with their employer.
4. 375. The Government denies the allegation that the act of joining an unregistered union would constitute an offence under section 1 of the Act, since an individual must be a "member" (and/or "official") before it is possible to come within the terms of section 1.
5. 376. On the power of the Chief Registrar to cancel registration, the Government explains that the Act does not give any administrative authority in the Isle of Man the power to "dissolve" a workers' or employers' organisation. The Chief Registrar, by section 4, is given power to cancel the registration of a trade union or an employers' association in certain defined circumstances. However, the decision of the Chief Registrar would not take effect for two months (except where he is satisfied that the union or association has ceased to exist), and by section 5 the trade union or employers' association may appeal to the High Court. Thus, the Act does not provide for the cancellation of registration by an administrative authority alone. In practice, the final decision would be that of the High Court where the issue would be fully argued in public. The minimum two months' advance notification would be quite sufficient to enable the trade union or employers' association to lodge an appeal. There is therefore no violation of Article 4 of ILO Convention No. 87 as alleged.
6. 377. The Government emphasises that the High Court would not merely have the function of ensuring the legislation had been correctly applied, but would have the function of considering all the facts of the case. The court would have to determine whether the circumstances of the case justified the cancellation of the registration of the trade union (or employers' association). It is extremely unlikely that circumstances will ever arise where the cancellation of registration of a trade union would be justified.
7. 378. On the responsibilities of union officials, the Government points out that the Act also sought, by section 6, to ensure that trade unions and employers' associations keep proper accounts and that those accounts are both audited and published and therefore open to examination by members of the union or association. This may also be regarded as an important safeguard for members of trade unions and employers' associations. The procedure for the registration of trade unions in the Isle of Man is similar to that for the registration of charities: most charities on the Island are run by lay members (unpaid officials) and they find no difficulty in filing the audited annual accounts of their charity or recording changes in the particulars of the registration of their charity, when required.
8. 379. The Government contends that the 1991 Act creates a legal framework for trade unions (where none previously existed) for the benefit of both workers and trade unions. Although the registration system has been kept as simple as possible, it does impose additional responsibilities on trade unions and their officials in respect of audited accounts and for the amendment of the register when the official who represents the union in the Isle of Man, or the registered office, is changed, or the rules of the union are altered. The Government finds it difficult to understand why this is considered to be a "heavy administrative burden" which union officials will find impossible to cope with. It emphasises that the Isle of Man is a small community and the Chief Registrar is always available to advise and assist union officials with registration procedures.
9. 380. In the light of the above comments the Government asserts that the allegations made by the complainant do not in any way demonstrate that the Isle of Man's legislation does not satisfy Convention No. 87. On the contrary, it stresses that the intention in introducing the 1991 Act was to comply with the three relevant Articles of Convention No. 87 and, for the first time in local law, to give legal protection to both workers and trade unions involved in industrial action. The provisions of sections 10 and 11, which establish new rights for workers and trade unions in the Isle of Man, may well be regarded as a very important (if overdue) reform for the Island.

C. The Committee's conclusions

1. 381. The Committee notes the allegations in this case concerning compatibility with Convention No. 87 of the 1991 Trade Unions Act (which, according to the complainant, has not yet entered into force) as well as the Government's reply arguing that the new provisions are not anti-union in nature, have been textually misread by the complainant and, in practice, would not amount to obstacles to the right to organise of Isle of Man workers.
2. 382. As for the alleged violation of Article 2 by the system of compulsory registration of unions, the Committee would recall that, in compulsory registration systems, provisions subjecting the right to form an organisation to the obtainment of an authorisation issued at the sole discretion of the administrative authority are incompatible with the Convention (General Survey on Freedom of Association and Collective Bargaining, 1983, para. 114). Likewise, systems permitting the administrative authority to refuse or cancel a registration simply because it considers that the organisation could exceed normal union activities or engage in other functions would be tantamount to previous authorisation, contrary to Article 2 (General Survey, 1983, para. 115). Generally speaking, trade unions should have the right to appeal to independent courts against any administrative decision affecting their registration, as a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registering unions (General Survey, 1983, para. 117). In the present case, the Committee considers that the compulsory registration system established by the 1991 Act does not run counter to the requirements of Convention No. 87 since the powers of the Chief Registrar are clearly subject to appeal to the High Court (section 5 of the Act), and since that court can go beyond mere verification that the law has been correctly applied and can examine the substance of the case, including the grounds for non-registration or cancellation.
3. 383. As regards the alleged discretionary powers of the Chief Registrar to cancel registrations (for example, if obtained by mistake, or if the union's purposes have become unlawful, or if the union does not comply with the administrative and financial formalities of the Act), the Committee is of the opinion that the appeal provision - not having suspensive effect - is not sufficient to save the cancellation provision. Indeed, it is clear that where a decision to cancel an organisation's registration, even though open to appeal to the judicial authorities, may take effect before the courts have given their decision or even before an appeal has been lodged, the legislation has the effect of permitting the suspension of a trade union by administrative authority, contrary to Article 4 (General Survey, 1983, para. 231).
4. 384. The Committee would accordingly point out to the Government that the proper implementation of the principle set out in Article 4 of the Convention implies more than the existence of a legislative provision providing for the possibility of appealing against such decisions to the courts; decisions should not be permitted to take effect until a reasonable period of time has elapsed without any appeal being lodged or until they have been confirmed by the judicial authority (General Survey, 1983, para. 232).
5. 385. As regards the alleged violation of Article 5 by the Act's detailed administrative procedures for the formation of federations, confederations and for international affiliation, the Committee notes that the complainant gives no further explanation of this allegation and that the Government denies that the Act could be used to deprive unions of this right. A reading of the provisions of the Act (section 23's definitions) shows that federations and confederations are to be subject to the same registration/cancellation/administrative provisions as trade unions. Moreover, no provision specifically addresses the issue of international affiliation. The Committee accordingly is of the opinion that it has not been supplied with any elements justifying further examination of this aspect of the case.
6. 386. As to the complainant's final specific point, namely that the Act's administrative requirements are onerous, the Committee notes the Government's reply that the duty to keep proper accounts and to have registered changes in the union's officers, address or rules are an important safeguard for union members and would not be difficult to comply with (as the practical example of charities, under similar legislation, has shown). From the information available, the Committee cannot conclude that the administrative requirements are detrimental to trade union activity. The fact that non-compliance gives rise to a fine upon conviction may well be a factor to be taken into account when unpaid union members volunteer to give assistance in the union's administration; whether it would so deter lay members from volunteering as to leave unions bereft of all support staff is a matter of conjecture, not for this Committee to comment on. Noting, however, the complainant's insistence on the administrative weaknesses of the Island's small unions, the Committee suggests that it take up the Government's offer of advice and training in the registration procedures and consequent obligations.
7. 387. Finally, regarding the complainant's general allegation that the 1991 Act is complex, cumbersome and amounts to a "passive restriction" on the right to organise of Isle of Man workers, the Committee notes the Government's denial in terms of the Act being introduced solely to provide protection (previously lacking) to workers and unions involved in industrial action and to ensure the proper administration of union funds. While in some past cases the supervisory bodies have commented on the complexity of legislative provisions affecting the right to organise (Fact-Finding and Conciliation Commission on Freedom of Association concerning South Africa, GB.253/15/7, para. 578), in the present case this Committee is unable to uphold the complainant's position. The Committee's reading of the text as it stands does not find it unduly complex or burdensome, even in the specific circumstances of Isle of Man unions.