Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and interference especially in the context of the statutory recognition procedure. In its previous comments, the Committee noted the Trades Union Congress’s (TUC) indication that protection against anti-union discrimination (unfair practices) only applies in the framework of the organization of a recognition ballot, whereas a lot of the misconduct by an employer may take place at a much earlier stage, where the union is trying to organize, recruit and build up some kind of structure. The TUC had expressed concern at the lack of protection in practice against unfair practices by employers taking place long before the balloting period, in order to discourage any organizing campaign by a union (including threats of closure of the plant and individual job loss, actual dismissals, pay and promotion inducements, holding a company ballot in advance of an independently conducted ballot, denial of any access to a union including preventing leaflets being given to the employees, holding anti-union meetings at the workplace, one-on-one meetings, changes to the bargaining unit – either splitting it or combining it with others). The TUC had also indicated that the statutory procedure for recognition allows an employer to prevent an application for recognition to be made by an independent trade union by setting up an in-house company union and voluntarily extending to it recognition rights; the TUC referred to the case of POA and Securicor Custodial Services Ltd., where the union was denied the right to recognition – even though it had the support of a majority of members in the unit – as the employer had concluded a recognition agreement with a staff association.

The Committee notes that according to the Government, individuals are protected from dismissal or other detriment in relation to their right to belong to a trade union, participate in the activities of the union at an appropriate time and make use of a union’s services (sections 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), and articles 73 and 136 of the Employment Rights (Northern Ireland) Order 1996). These provisions were strengthened by the Employment Relations Act 2004 and the Employment Relations (Northern Ireland) Order 2004, which made it unlawful for an employer to offer inducements to workers not to belong to a trade union, not to participate in a union’s activities at an appropriate time and not to use a union’s services at an appropriate time (section 145A of TULRA and article 77A of the 1996 Order inserted by the 2004 Act/Order). The rights apply equally to situations where a union is recognized and where it is not recognized for collective bargaining purposes. The Government emphasizes that these rights provide adequate protection for trade unions in advance of making requests to employers for recognition. In addition to this, protection applies during the statutory recognition procedure (paragraphs 156 to 162 of Schedule A1 of TULRA/paragraphs 156–162 of Schedule 1A of the 1996 Order). However, according to the Government, given the existence of many trade unions in the United Kingdom, the statutory procedure has been designed to ensure that it is not used as a vehicle for counter-productive tendencies to rivalry. Thus, a union cannot have its application for recognition accepted and processed if its proposed bargaining unit overlaps in any way with the bargaining unit of a trade union which is already recognized. In situations where the incumbent trade union is non-independent, it may be derecognized through an application by the workers covered by the recognition arrangement. It is permissible for a non-incumbent trade union to assist the workers involved in making an application to derecognize the trade union.

The Committee notes that according to the latest communication by the TUC: (i) the law provides for protection against acts of anti-union discrimination, but only where this is the sole or main purpose of the employer; an act of anti-union discrimination is not unlawful where the employer’s purpose is incidentally to discriminate on grounds of trade union membership (section 145A of TULRA requires the “sole or main purpose” of an employer’s offer to be the inducement of the worker to give up trade union membership or participation in trade union activities; moreover, section 152 of TULRA provides that a dismissal shall be regarded as unfair where the reason for it – or, if more than one, the principal reason – is trade union membership or activities); (ii) although workers have the right not to have inducements made to give up collective bargaining rights, this applies only where the union is recognized or seeking to be recognized (section 145B of TULRA); it does not apply where the union has been derecognized; (iii) where an employer makes inducements to workers to give up union representation, the union has no standing to bring legal proceedings to complain about the violation of its rights (sections 145A(5)–145B(5) of TULRA); this is an important omission, particularly in cases where workers who have been the subject of the inducement are unwilling to institute individual proceedings; and (iv) where the incumbent trade union is non-independent, a request for derecognition can only be made by an individual worker and not by an independent trade union; the independent trade union has no right of access to the workplace and no right to communicate with the workforce while derecognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the derecognition process. The Committee finally notes that the International Trade Union Confederation (ITUC) refers to various unfair practices and anti-union tactics in the framework of the statutory recognition scheme.

The Committee requests the Government to indicate in its next report additional information, including judicial decisions, on the protection provided against acts of anti-union discrimination, including those in which the employer’s main purpose is not discriminatory, and against acts of interference.

Shipping sector. The Committee notes the issues raised by the TUC in relation to the shipping sector under Conventions Nos 147 and 180. Thus, according to the TUC, contracts of employment have been found to expressly forbid individuals from contacting a recognized trade union so as to favour the conclusion of “workforce agreements” with workers’ representatives rather than collective agreements with trade unions, thereby lowering the terms and conditions of employment in this sector. The Committee requests the Government to provide its comments in this regard.

Article 4 of the Convention. Statutory recognition procedure. The Committee’s previous comments raised the need to ensure that under a system for nominating an exclusive bargaining agent, if there is no union representing the required percentage to be so designated (the majority vote in a ballot in which at least 40 per cent of the bargaining unit must vote in favour of union recognition), collective bargaining rights should be granted to all unions in a unit, at least on behalf of their own members. The Committee notes that according to the Government, bargaining units in the United Kingdom cover both those who are members of the recognized union and those who are not members. In other words, trade unions are rarely, if ever, recognized just to bargain on behalf of their own members only. This tradition ensures that bargaining structures are relatively simple and that workers in the same job or occupational category are not paid by reference to different systems of pay determination. There are thus no plans to introduce any new provisions enabling minority trade unions to bargain on behalf of their own members only. Nevertheless, minority unions are still entitled to provide important services to their members, in relation for instance, to disciplinary or grievance hearings.

The Committee once again recalls that problems of conformity with the principle of the promotion of collective bargaining, set out in the Convention, may arise when the law stipulates that a trade union must receive the support of the majority of the members of a bargaining unit to be recognized as a bargaining agent, since a union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee requests the Government to indicate the measures taken or envisaged to review in consultation with the social partners, the TULRA as amended by the Employment Relations Acts of 1999 and 2004, so as to verify that the provisions on trade union recognition for collective bargaining purposes do not prevent trade unions in workplaces where no union meets the percentage requirements for recognition (40 per cent), from engaging in collective bargaining on behalf of their own members on a voluntary basis.

Collective bargaining in small businesses. The Committee’s previous comments concerned the TUC’s indication that businesses employing less than 21 workers are excluded from the statutory procedure for union recognition, the effect of which has been to deny the employees of these small businesses the right to be represented by a trade union (Schedule 1A, paragraph 7(1) of TULRA).

The Committee notes that according to the Government, it would be inappropriate to subject very small organizations to the detailed legal requirements of the statutory recognition procedure. Trade unions are recognized by some very small employers through voluntary agreement. The Government acknowledges that recognized trade unions can operate very effectively in micro businesses. To demonstrate this fact, the Government helped finance an innovative research project with the UNITE union and community trade unions to identify the positive effects recognized trade unions can bring to small businesses. That research project was completed in April 2007, and the Government would expect it to be used by trade unions and employers to understand the role of the trade union in very small organizations. In addition, the Advisory, Conciliation and Arbitration Service (CAS) and the Labour Relations Agency (LRA) in Northern Ireland, which are Government-funded, can provide advice to employers and trade unions on the issues which arise in any matter relating to the establishment and operation of union recognition arrangements. CAS/LRA can also provide conciliation services, at the joint request of both parties, to resolve any difficulties or disputes about trade union recognition.

The Committee notes that according to the latest comments made by the TUC, it would be possible to have a simplified statutory procedure for small businesses which reconciles the fundamental rights of the workers with the circumstances of the business. The TUC is also not aware of the UNITE/community unions innovative research project to which the Government refers; it wonders whether the report recommends any changes to the law.

The Committee emphasizes that in accordance with the free and voluntary nature of collective bargaining, it should be possible for all workers and employers, with the possible exceptions contained in Article 6 of the Convention, to engage in collective bargaining. The Committee invites the Government to examine this matter with the social partners and requests it to furnish statistical data on the number and coverage of collective agreements, particularly in small businesses.