Rapport définitif - Rapport No. 275, Novembre 1990

1. 53. By communications dated 7 December 1989 and 11 January 1990 the National Union of Teachers (NUT) presented a complaint against the Government of the United Kingdom alleging violations of trade union rights. By a communication dated 9 January 1990 the World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint in relation to the same matter. The Government sent its observations on the case by a communication dated 4 October 1990.
2. 54. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 55. In its communication of 7 December 1989 the NUT draws attention to the fact that at its meeting in May 1988 the Committee examined a complaint (Case No. 1391) against the Government of the United Kingdom relating to the denial of the right to engage in collective bargaining in the teaching profession in England and Wales (256th Report of the Committee, approved by the Governing Body at its 240th Session, May-June 1988, paras. 39-89). The Committee had concluded that the procedures for determining the terms and conditions of employment of teachers in England and Wales which were set out in the Teachers' Pay and Conditions Act, 1987, were not in conformity with the guarantees provided by Article 4 of Convention No. 98. The Committee of Experts on the Application of Conventions and Recommendations reached a similar conclusion in 1987 and 1989.
2. 56. When it examined Case No. 1391 this Committee noted that the 1987 Act was expressed to operate for a period of three years up to 31 March 1990, and that the Government had stated that by that time it hoped to have permanent machinery in place for determining the pay and conditions of teachers in England and Wales. In its recommendations the Committee had indicated that these new arrangements should "give effect to the fundamental principle of the voluntary negotiation of collective agreements, as contained in Convention No. 98" (256th Report, para. 89). The NUT points out that in November 1989 the Secretary of State for Education and Science laid before Parliament a draft Order to extend the operation of the 1987 Act for a further year beyond 31 March 1990. By its communication of 11 January 1990 the NUT indicates that this Order was adopted on 14 December 1989. This means that the United Kingdom will remain in breach of Convention No. 98 at least until 31 March 1991.
3. 57. The WCOTP makes essentially the same points in its communication of 9 January 1990.
4. 58. The NUT also draws attention to a number of changes to the structure of the teaching service in England and Wales which had been effected since 1987. Amongst other things, this restructuring involves the devolution of powers from local education authorities to the governing bodies of individual schools. The devolved powers include the management of school finances (although funding is still provided jointly by local and central government), appointment and dismissal of teachers, and other matters of personnel management. The NUT explains that this devolution is optional. It anticipates that the great majority of teachers will continue directly to be employed by the 118 local education authorities in England and Wales. Nevertheless significant numbers will be employed by schools which have availed themselves of the "devolution option". Despite these changes, there is still no national collective bargaining structure for the negotiation of teachers' terms and conditions of employment in England and Wales. Furthermore, the Government has consistently failed to make any significant moves towards the introduction of a new system which is satisfactory to teachers and their employers, and which could replace the supposedly temporary system put in place by the 1987 Act.
5. 59. According to the NUT there is now an acute shortage of teachers in England and Wales. This can be attributed to a number of factors, including: (i) the erosion of pay relativities as a result of the absence of free, national-level collective bargaining since 1987; (ii) the vastly increased burdens of unrewarded work and responsibility which are attendant upon the structural changes noted in the previous paragraph; and (iii) low morale among teachers (which is itself a consequence of the first and second factors).
6. 60. In summary, the complainant alleges that the Government has not yet taken significant steps to put in place collective bargaining arrangements for teachers in England and Wales which are consistent with Article 4 of Convention No. 98 and with the decision on the Committee in Case No. 1391. On the contrary, it has compounded its breach of the Convention: (i) by restructuring the education service in a manner which entailed the unilateral imposition of significantly amended conditions of service for teachers; (ii) by imposing, also unilaterally, cash limits upon salary increases which were available for teachers in each of the years in which the 1987 Act has been in operation; and (iii) by extending the operation of the 1987 Act beyond its original expiry date of 31 March 1990.

B. The Government's reply

1. 61. In its communication of 4 October 1990 the Government indicates that, following extensive discussions with teacher unions (including the NUT) and employers, it had decided to introduce legislation at the earliest opportunity to establish new pay negotiating machinery for teachers in England and Wales. This decision was annnounced on 23 July 1990. However, the necessary legislation could not be introduced until the new session of Parliament which is due to commence early in November 1990. This means that it will not be possible to have the new machinery in place in time to operate for the 1991-92 pay settlement. Consequently, it would be necessary to extend the operation of the Interim Advisory Committee which had been established under the 1987 Act for a further year with effect from 1 April 1991.
2. 62. The Government considers that the imminence of radical legislative change has, for all practical purposes, superseded the allegations set out by the complainants. Consequently, the Government's response concentrates upon the new set of circumstances rather than upon questions which it considers now to be redundant.
3. 63. According to the information supplied by the Government the new arrangements will provide for free negotiations as to terms and conditions of teachers between employers and teachers' representatives, under an independent chairman. The Government will not be a party to the negotiations, and there will be no pre-set financial limit. However, the employers will be aware of the extent of the financial assistance which the Government is ready to make available for local authority expenditure as a whole, and they will have to consider what they can afford in the light of that figure. In advance of the commencement of negotiations, the Government will fix a date by which those negotiations must be concluded. There will be a separate negotiating committee for head teachers and deputy head teachers.
4. 64. The outcome of the negotiating process will be recommendations to the relevant Government Minister, who will then decide whether to accept them or not. If the Government is unhappy with any recommendations, they may be referred back to the parties for further consideration. Any such reference back will be accompanied by a statement of reasons therefor. If further consideration does not produce an outcome which is satisfactory to the Government, then it may substitute its own decision on the referred matters. Any such substituted decision would be subject to disallowance by either House of Parliament. The Government states that it would not normally refer back recommendations on cost grounds "if the overall cost is within the inter-quatrile range of private sector settlements for non-manual employees".
5. 65. If the parties are unable to reach agreement on some or all issues before the prescribed deadline then the Government may refer such matters as it considers appropriate to a statutory independent Advisory Committee. This Committee would be "broadly similar" to the Interim Advisory Committee which was established under the 1987 Act. Following its deliberations, the Committee could make such recommendations as it considers appropriate to the Government. Before making its recommendations it would be required to afford associations of local education authorities, bodies representing other employers of teachers in publicly funded schools, and teacher unions an opportunity to submit evidence. It would also be obliged to take account of any directions the Government may give as to "the considerations to which they are to have regard". These could include financial limits, or any other considerations which the Government might specify. The Government would not be obliged to accept any recommendations put to it by this Committee.
6. 66. Individual local education authorities, or the governing bodies of publicly funded schools, would be permitted to apply to the Secretary of State for Education and Science for permission to opt out of the national arrangements and determine pay and conditions of their teachers at local level. Before applying for such exemption local education authorities would be obliged to "consult" with the governing bodies of all relevant schools and with the local representatives of teachers' unions recognised nationally for pay determination purposes. They would then be required to report the views expressed, together with their comments thereon, to the Secretary of State. If the application was approved then the national bargaining arrangements would cease to apply as of the date on which the local education authority put the arrangements described in its application into effect, subject to any variation agreed by the Secretary of State. Once the national provisions had been "disapplied" from a local education authority or governing body their future approach to pay and conditions matters would be "unconstrained", subject only to certain restrictions on changes to pay within the first year, and to a general obligation upon local education authorities to "consult" with governing bodies of schools and "the teachers concerned" before implementing proposals for changes in local pay and conditions.
7. 67. The Government indicates that "different and incompatible views" on its proposals were expressed in the course of the consultations which preceded the decision to adopt this new system. Most participants in the consultation process favoured the restoration of negotiating rights for teachers. Others, however, preferred some form of independent review, although they were not willing to agree to the establishment of a permanent body similar to the Interim Advisory Committee which had been established under the 1987 Act. In a statement to the House of Commons on 23 July 1990 the Secretary of State observed that "it is clear that we are far from a consensus in favour of independent review on a basis that would be acceptable". The Government had, nevertheless, decided to press ahead with the proposals described in its communication of 4 October 1990.

C. The Committee's conclusions

1. 68. This case arises out of the alleged failure of the Government to restore the right of trade unions representing schoolteachers in England and Wales to engage in collective bargaining on behalf of their members in the manner guaranteed by Article 4 of Convention No. 98. The Committee has already expressed the view that the arrangements put in place by the Teachers' Pay and Conditions Act, 1987, are not in conformity with these guarantees (256th Report, para. 87). In arriving at this conclusion, the Committee pointed out that although the legislation was scheduled to expire on 31 March 1990 "it may be extended from one year to the next merely by order of the Secretary of State and could therefore exceed a period which may be termed reasonable". The Committee is informed that the operation of the legislation has already been extended for one year to 31 March 1991, and that the Government now proposes to extend it for a further year to 31 March 1992. Accordingly, the Committee must reiterate that the provisions of the 1987 Act are not in conformity with Article 4 of Convention No. 98, and calls upon the Government to accord the highest priority to putting in place arrangements for the determination of terms and conditions of schoolteachers in England and Wales by processes of collective bargaining which are in full conformity with the requirements of Article 4. The Committee also considers that the operation of the 1987 Act should not be extended beyond 31 March 1992.
2. 69. The proposed arrangements described in the Government's communication of 4 October 1990 would constitute a step in the right direction in this regard, although in the opinion of the Committee they are defective in a number of important respects.
3. 70. It is clearly in conformity with the requirements of Article 4 that there should be direct negotiations between employers and teachers at national level. It is also appropriate that the Government not be a party to such negotiations, and that there be no pre-set financial limit on the negotiations. The requirement that negotiations must be completed by a predetermined date would not in itself give rise to any question of incompatibility with Article 4 - provided that the stipulated period was not so short as to make meaningful negotiations impossible.
4. 71. The Committee also considers that the provision for reference back of provisions with which the Government does not agree would not be incompatible with the principles of freedom of association where the purpose of such reference back is to try to persuade the parties to modify their agreement in the light of "considerations of general interest". (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 643 and 644.) However, respect for the principles embodied in Article 4 of Convention No. 98 requires that "the final decision ... should rest with the parties" (Digest, para. 643). It is, however, permissible to restrict the autonomy of the parties to the bargaining process where it is necessary to do so "for compelling reasons of national economic interest" (General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations, 1983, para. 315). Any such restrictions should "be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and ... should be accompanied by adequate safeguards to protect workers' living standards" (Digest, para. 641, and General Survey, para. 315).
5. 72. The arrangements described by the Government in its communication of 4 October 1990 do not appear to be compatible with these principles. The Government, through the Secretary of State, appears to have an absolute discretion to disregard any recommendation with which it disagrees, even if that recommendation has the full support of all parties to the negotiating process. This does not leave the "final decision" with "the parties". The Government has not attempted to justify its proposals on the basis of "compelling reasons of national economic interest". Like the provisions of the 1987 Act (see 256th Report, para. 87), the new arrangements cannot be regarded as "exceptional" in character, or as operating only for a "reasonable period". Nor do they appear to provide "adequate safeguards to protect workers' living standards".
6. 73. In its 256th Report (at paras. 86-87), the Committee also expressed the view that the arrangements put in place by the 1987 Act could not "be considered as instituting a procedure of voluntary negotiation of collective agreements as prescribed in Article 4 of Convention No. 98". This was partly because the processes of consultation by the Interim Advisory Committee did not constitute collective bargaining in the requisite sense, and partly because the Secretary of State was "free to accept, modify or reject the advice given to him by the Committee". The Government now proposes to create a permanent, independent Advisory Committee which is to be "broadly similar" to the present Interim Advisory Committee. Like the existing body, the new Committee will be obliged to consult with the relevant parties, and will be empowered to make recommendations to the Secretary of State, who will retain the right to accept, modify or reject those recommendations as (s)he sees fit. These arrangements appear to be incompatible with the requirements of Article 4 for essentially the same reasons as those which presently operate under the 1987 Act. It is true that reference to the new Committee must be preceded by an attempt to resolve any differences between the parties by means of collective bargaining. That does not, however, operate to convert the "Committee-phase" into a process of collective bargaining. Both processes are fatally flawed because in both instances the parties lack the freedom to strike their own bargain on their own terms. This is not to suggest that the Government cannot seek to put in place mechanisms to resolve bargaining "deadlocks" as and when they may occur. But it is to suggest that such mechanisms must, in the final analysis, respect the autonomy of the parties to the bargaining process.
7. 74. The Committee also has some concerns as to the compatibility with the principles of freedom of association of the proposed arrangements whereby local education authorities or governing bodies of schools may apply to the Secretary of State for "disapplication" of national bargaining arrangements. The Committee has consistently taken the view that the best procedure for safeguarding the independence of the parties involved in collective bargaining is to allow them to decide by mutual agreement the level at which bargaining should take place. However, it has accepted that it is not incompatible with the principles of freedom of association for the level of bargaining to be determined by a body that is independent of the parties themselves, so long as that body can indeed be seen to be "truly independent" (see Digest, op. cit., para. 634). The Committee has also considered that a refusal by employers to bargain at a particular level does not in itself constitute an infringement of freedom of association (Digest, para. 632).
8. 75. This suggests that in the present case it would not be incompatible with the principles of freedom of association for employers to seek to negotiate at local level rather than through the national arrangements. However, any disagreement on this issue should be resolved by an "independent body". In the light of the fact that the Secretary of State has a de facto veto over the outcome of the national bargaining process, the Committee has some doubts as to whether s(he) can properly be regarded as a "truly independent" body for these purposes.
9. 76. The Committee's concerns on this point are compounded by the fact that if the Secretary of State grants an application for "disapplication", the employer concerned appears to be obliged only to "consult" (rather than "negotiate") with "the teachers concerned" before implementing proposals for changes in local pay and conditions. In other words, the Government seems to be proposing that employing authorities should be able to apply to the Secretary of State for permission not just to opt out of the obligation to engage in national level collective bargaining, but to opt out of any form of collective bargaining. In the opinion of the Committee such a situation would sit most uneasily with the Government's obligation to take "measures appropriate to national conditions ... 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", as set out in Article 4 of Convention No. 98.
10. 77. The Committee notes that the Government has not yet introduced legislation to give effect to the arrangements described in its communication of 4 October 1990. Accordingly, the Committee calls upon the Government, in formulating its detailed legislative proposals, to frame its legislation in such a manner as to respect the principles described above. In particular the legislation should enable the parties to conclude, and to implement, their own agreement upon their own terms, bearing in mind: (i) that it is not incompatible with the principles of freedom of association to establish a procedure whereby the attention of the parties may be drawn to "considerations of general interest", "it being understood that the final decision thereon should rest with the parties"; and (ii) that the autonomy of the parties may be restricted "for compelling reasons of national economic interest", so long as the restrictions are imposed "as an exceptional measure and only to the extent necessary, without exceeding a reasonable period" and are "accompanied by adequate safeguards to protect workers' living standards". The legislation should also be framed in such a manner as to encourage and promote the development of collective bargaining in the manner required by Article 4 of Convention No. 98.
11. 78. The issues raised by this complaint clearly bear upon the effect given to Convention No. 98, which has been ratified by the United Kingdom. Accordingly, the Committee again draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.