Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee takes note of the comments of the Government on the 2013 observations of the Public Service Union (Unison) and Unite the Union. It further notes the observations of the Trades Union Congress (TUC) received on 1 September and 25 November 2015 which raises concerns about a number of legislative proposals presented by the Government in July 2015 and requests the Government to provide its comments thereon. The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls its previous comments in which it requested the Government to carry out a review with the social partners of the issues raised by various workers’ organizations in the country relating to the exercise and regulations of industrial action. The Committee observes that while an independent review was undertaken to look at the limited questions of alleged use of extreme tactics in industrial disputes and the effectiveness of the existing legal framework for preventing inappropriate or intimidatory actions in such disputes, the review was not charged to examine the various matters that had been raised by the workers’ organizations in the country over recent years. The Carr Report resulting from the above limited review was published in October 2014 and served as a basis for certain proposed reforms set out in the Trade Union Bill presented in Parliament on 15 July 2015.

The Committee observes that the TUC raises a number of concerns in relation to the new government proposals, which it considers would infringe on the right of workers’ organizations to carry out their activities without interference. The TUC refers in particular to new proposed ballot requirements for industrial action and additional procedural burdens, restrictions on picketing and increased supervisory powers, procedural requirements for the use of social media, the use of agency workers to replace strikers, restrictions on union political freedoms and greater overall control of trade unions through enhanced powers of the certification authority.

The Committee notes that, following the introduction of these proposals, the Government carried out a broad-based consultation related to controversial proposals for further requirements related to picketing. The Committee welcomes the Government’s decision not to pursue certain of those proposals, including the proposals related to two weeks advance social media notification and annual reporting on industrial action. The November 2015 government response to the consultation on tackling intimidation of non-striking workers thus proposes to modify the Bill to clarify the limited extent of the scope of the picketing provision (section 9) and focus rather on strengthening the Code of Practice on Picketing to set out the rights and responsibilities of the parties clearly and to work with the police, the Advisory, Conciliation and Arbitration Service (ACAS) and other stakeholders to ensure that guidance fully reflects the practical steps necessary to ensure that picketing remains peaceful.

As regards the ballot requirements raised by the TUC, the Committee observes that two sets of additional requirements related to strike ballots are being proposed. Section 2 of the Bill introduces a new requirement of a 50 per cent participation quorum to be reached in strike ballots. In this regard, the Committee recalls in its 2012 General Survey on the fundamental Conventions, paragraph 147 that, while it has always stated that a quorum should be fixed at a reasonable level, it has consistently considered that a quorum of 50 per cent is indeed within such limits of reasonableness. The second requirement referred to by the TUC concerns the heightened conditions in important public services of support by 40 per cent of all workers (section 3 of the Bill), which effectively means a requirement of 80 per cent support where only the 50 per cent participation quorum has been met. The Committee notes that the following categories have been identified as important public services: health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. While the Committee generally considers that a requirement of the support of 40 per cent of all workers to carry out a strike would constitute an obstacle to the right of workers’ organizations to carry out their activities without interference, it further observes that a number of the services set out in section 3 fall within the Committee’s understanding of essential services in the strict sense of the term or of public servants exercising authority in the name of the State, in which restrictions on industrial action are permissible. The Committee does however express concern that this restriction would also touch upon the entire primary and secondary education sector, as well as all transport services, and considers that such a restriction is likely to severely impede the right of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference. The Committee recalls in this regard that recourse might be had to negotiated minimum services for these sectors, as appropriate. The Committee requests the Government to review this matter with the social partners concerned with a view to modifying the Bill so as to ensure that the heightened requirement of support of 40 per cent of all workers does not apply to education and transport services.

The Committee further notes the TUC concerns that these changes come within a cumulated context of heavy procedural requirements for balloting, including the fact that balloting must be by postal voting only and that secret workplace voting and electronic voting are not allowed. The Committee further observes that Unison had raised similar concerns and that in one case referred to it, the employer challenged the confidentiality of postal voting. The Committee invites the Government to review the ballot method with the social partners concerned with a view to its possible modernization while bearing in mind the rights and interests of all parties concerned.

The Committee further observes the concerns raised by the TUC in relation to the proposal to revoke the regulation in the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which prohibited the provision of agency workers to replace strikers. The Committee requests the Government to review this proposal with the social partners concerned bearing in mind its general consideration that the use of striker replacements should be limited to industrial action in essential services.

Finally, the Committee requests the Government to provide its comments on the other matters raised by the TUC, and in particular as regards: (i) the proposal to abolish dues check-off across all public sector organizations; (ii) the proposal for an opting-in clause (as opposed to an opting-out), with a limited time validity, for union member contributions to political funds accompanied by detailed reporting obligations; (iii) the remaining provisions on picketing; and (iv) the proposal to increase powers of the certification authority.

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

[The Government is asked to reply in detail to the present comments in 2016.]