Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1949)

Workers’ and employers’ organizations comments. The Committee takes note of the observations of the Government on the communication of the International Trade Union Confederation (ITUC) dated 24 August 2010 as well as of the detailed comments and information provided by the Trades Union Congress (TUC) in a communication dated 30 August 2012 which raises new issues related to recent case law, as well as a number of issues on the application of the Convention in law and in practice that have been the subject of the Committee’s comments for many years now. The Committee also notes the comments of the ITUC dated 4 August 2011. The Committee requests the Government to reply to these comments in its next report.

Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee’s previous comments concerned the right of trade unions to draw up their rules and formulate their programmes without interference from the authorities, particularly as regards the exclusion or expulsion of individuals on account of membership in an extremist political party with principles and policies wholly repugnant to the trade union. Following the judgment of the European Court of Human Rights (ECHR) reached in the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007), section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) was amended. The Government considered that this amendment significantly extended the scope for trade unions to exclude and expel individuals on the grounds of their political party membership.

The Committee also noted the detailed comments made by the TUC setting out certain reservations in respect of the amendment both as regards what it saw as a degree of legal uncertainty around its meaning and the perception of excessive complexity in the new legislation. The Committee took due note of the detailed observations made by the Government in its previous report in reply to these concerns. The Government stated that it had attempted to balance competing human rights about freedom of belief and freedom of association in its drafting of these amendments. It therefore included safeguards concerning the essential elements of natural justice, due process and transparency which aim to ensure that: (a) membership of the political party concerned is contrary to a rule or objective of the union; (b) the union has taken the decision to exclude or expel in accordance with its rules; and (c) the union has followed fair procedures when taking that decision, and the individual does not lose his or her livelihood or suffer other exceptional hardship for loss of union membership. As regards this last point, the Government indicated that, since “closed shop” is already unlawful in the country, a loss of union membership is very unlikely to produce hardship on this scale. As regards the TUC allegation that the complexity would lead to unjustified and vexatious litigation, the Government stated that there is no evidence to support that such mischievous litigation has been indulged in since the amendments came into force in April 2009. The Government added in this respect that a compensatory award for unlawful exclusion would only apply where the trade union refused to admit or re-admit the individual and where membership of the political party is not contrary to a rule or objective of the trade union, whereas in the Government’s understanding, the rules or objectives of British trade unions often specify that membership of certain political parties, or xenophobic or racist behaviours associated with such parties, are incompatible with union membership. The Government concluded that these amendments do not breach the Convention and are necessary in a democratic society for the protection of the rights and freedom of others. The Committee asked the Government to reply to the further concerns of the TUC. In this regard, the Government indicates that: (1) it was aware of the points raised by the TUC when it introduced its amendments to section 174; and (2) it considers that the provision is consistent with Convention No. 87 and it is satisfied that it does not represent an undue interference in the internal regulation of union affairs. The Committee notes that the Government reiterates the point made in its reports for 2006–08 and 2008–10 that these issues are complex and the law must respect all the competing rights involved. The Committee notes that the TUC reiterates the arguments that it had presented in its previous communication. The Committee expects the Government and the TUC to provide any available information on the practical application of the amendments to section 174 of the TULRA.

Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 2006–08, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner so as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations.

The Committee further recalls that it has been raising the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice and considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for this fundamental right. It further raised this issue when reviewing the comments made by the British Airline Pilots’ Association (BALPA), the International Transport Federation (ITF) and Unite the Union. The Committee notes the Government’s indication in its latest report that the TULRA provides a limit on the damages which trade unions can face when inducing workers to take unlawful industrial action. The Government considers that although the European Court of Justice (ECJ) has ruled on the position where EU legislation interacts with EU Member State domestic legislation, and although this has direct effect on the UK, there is no case law as yet to test whether the involvement of EU rights disapplies the limits in TULRA. The Government further indicates that as a result of concerns expressed about the Viking and Laval case law, the European Commission has published a draft Council Regulation “Monti II” that was being negotiated in the Council and the European Parliament. The Committee notes that the Government was awaiting the outcome of that process. It notes that withdrawal procedures on the proposed Monti II regulation started on 12 September 2012.

The Committee considers that a full review of the issues at hand with the social partners to determine possible action to address the concerns raised would provide this fundamental right the important attention it deserves at national level and requests the Government to provide information in its next report on the outcome of the discussions.

The Committee is raising other points in a request addressed directly to the Government.