Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) and the Trades Union Congress (TUC) in communications dated 10 August and 31 August 2006, respectively.

Articles 1, 2 and 3 of the Convention. The Committee notes the TUC’s indication that, although the Employment Relations Act of 2004 provided protection against acts of anti-union discrimination and interference on the part of employers, these protections apply only after an application for recognition under the statutory procedure has been made. The TUC further states that the legislation dealing with unfair practices thus only applies during a ballot period, 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: it is at this time, when the union is trying to establish itself, that it is most vulnerable and therefore in need of stronger protection than is currently provided. Recalling that the provisions of the Convention provide that appropriate machinery shall be established in order to guarantee adequate protection against both acts of anti-union discrimination and acts of interference in trade union affairs, the Committee asks the Government to indicate the measures taken or envisaged to ensure that trade unions are afforded these protections, even before they have applied for recognition under the statutory procedure.

Article 4 of the Convention. 1. The Committee takes note of the TUC’s statement that the statutory procedure for union recognition requires a union to have a majority of the workers in the bargaining unit as members, or a majority vote in a ballot in which at least 40 per cent of the bargaining unit must vote in favour of union recognition. In this respect, the Committee recalls that problems of conformity with the Convention may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, as a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that, under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee requests the Government to indicate the measures taken or envisaged to ensure that, in cases where no union has been able to obtain the required majority for bargaining, the organizations concerned should at least be able to conclude a collective agreement on behalf of their own members.

2. The Committee notes 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. The TUC states that workers employed in small businesses are free to join a union, but the fact that it has no legal right to be recognized by an employer due to the exemption from the statutory procedure acts as a disincentive to workers joining one. The TUC also indicates that this exclusion is of major concern in the printing industry, where there are a large number of small businesses. In the light of the concerns expressed above by the TUC, the Committee requests the Government to indicate in its next report the measures taken or envisaged to further promote collective bargaining in small businesses.

3. The Committee notes the TUC’s indication that the statutory procedure for recognition does not apply where there is already a voluntary recognition agreement between an employer and a trade union. The TUC expresses its concern that an application may not be processed under the statutory procedure where there is a recognition agreement with a trade union that is not independent. Although there is a procedure to derecognize trade unions that are not independent, the TUC states that it is not effective and has never been used successfully. The TUC indicates that in practice, therefore, this allows an employer to set up an in-house company union and extend to it recognition rights, thereby preventing an application by an independent trade union from being made, and refers 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 requests the Government to reply to the TUC’s concerns respecting this issue.