Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) a communication dated 24 August 2010 and by the Trades Union Congress (TUC) in a communication dated 28 October 2010. The Committee requests the Government to provide its observations thereon.

Articles 1, 2 and 3 of the Convention. Protection against anti-union discrimination and acts of interference. The Committee recalls that in its previous observation it had noted detailed information provided by the Government on the relevant legislative provisions protecting individuals from dismissal or other detriment in relation to their right to belong to a trade union, participate in trade union activities and use of its services. The Committee had further noted the allegations submitted by the TUC (addressed below) and requested the Government to provide 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.

The Committee notes that the Government reiterates the view it had previously expressed that there exists significant protection of the right of individuals to belong to a trade union, to participate in its activities and use its services, including the right not to be dismissed or suffer other detriment on these grounds. The Government once again refers to sections 145A, 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, as strengthened by the Employment Relations Act 2004, which, among other things, made it unlawful for employers 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. The Committee further notes the Government’s indication that since the last reporting period there have been no significant judicial decisions in this area.

With regard to the specific points previously raised by the TUC, the Committee notes the following information provided by the Government:

(i)    With regard to the allegation that the above-noted protection applies only where the “sole or main purpose” of the employer’s action or failure to act was to discriminate against the trade unionists in question or to discourage them from having their terms and conditions of employment set by collective bargaining, the Government indicates that, in its view, it is extremely important that employers remain free to take the legitimate decisions they believe are needed to run their businesses effectively. The Government points out that, while such decisions would be illegitimate if they infringe Article 11 or other rights under the European Convention on Human Rights, nothing in the judgment of the European Court of Human Rights (ECHR) in the Wilson et al. v. the United Kingdom case was intended to or does prevent employers from taking decisions to reward particular employees more highly than others when the motivation for doing so is to reward such employees in the interests of the business. The Government therefore considers the use of a purpose test to be essential and points out that, under the 1992 Act, it is for the employer to show what his sole or main purpose was. In the Government’s opinion, the use of a sole or main purpose test, coupled with a provision ensuring that the burden is on the employer to show what his sole or main purpose was, achieves the most satisfactory balance and is consistent with the judgment of the Court. The Government points out that Employment Tribunals are accustomed under a number of their current jurisdictions to determining what the employer’s sole or main reason for, or purpose in, doing certain acts is. The Government is confident that tribunals can apply the test sensibly to distinguish between cases where offers are made for the purpose of achieving de-recognition of a union and cases where they are made for the purpose of retaining or rewarding valuable staff.

(ii)   With regard to the TUC’s assertion that the rights provided for in section 145B of the 1992 Act are deficient because they are limited to situations where a trade union is recognized or is seeking recognition, but do not apply where a trade union has been de-recognized, the Government recalls that the Wilson case concerned the situation where offers were made to union members for the purpose of securing that their terms and conditions of employment would cease to be determined by collective agreement. The Government points out that, in the situation dealt with by the ECHR, the employer sought to induce trade union members to give up their existing right to have their terms determined by collective agreement; the employer was seeking to change the status quo and using inducements directed at union members to achieve his purpose. The Government further points out that section 145B is designed to address this situation and stresses that Schedule A1 to the 1992 Act contains a procedure by which a union can obtain recognition for the purpose of negotiations relating to pay, hours and holidays. The existence of this statutory procedure means that offers of the kind in question made to members of a union that is not recognized are ultimately ineffective in achieving their purpose since they cannot fetter the right of the union to request recognition and, if it is refused, to apply for a declaration of recognition under the Schedule. Nor can the making of such offers, even if accepted, affect the rights of union members under the Schedule to support their union’s claim for recognition and vote in favour of it. The effect of paragraphs 156 and 161 of the Schedule is that employees and workers are protected against dismissal and other detrimental acts done by an employer on the ground, among others, that a worker acted with a view to obtaining recognition, indicated support for recognition or acted to secure bargaining arrangements under the Schedule. Furthermore, the Employment Relations Act 2004 amended the Schedule to provide for remedies against an employer or union if either of them does certain things during the period of a recognition ballot with a view to influencing the result of the ballot. These include the making of offers to a worker entitled to vote in return for his/her agreement to vote in a particular way (for example, against recognition) or to abstain from voting.

(iii)  With regards to the TUC’s assertion that the right to complain about infringement of these rights is limited to individual workers and that trade unions cannot complain in their own right, the Government considers that the judgment of the ECHR does not require the creation of such a right. While the Government accepts that the Court held that the rights of the applicant unions had been infringed as well as the rights of the applicant members, it is of the opinion that the infringement of the rights of the applicant unions simply resulted from and was consequential upon the infringement of the rights of their members, rather than an infringement of a free-standing right of the unions. In the Government’s view, it is not necessary to give trade unions a separate remedy in order for the law of the United Kingdom to be compatible with the judgment. The Government therefore considers it sufficient to confer the remedy for acts of the kind that the Court held to infringe Article 11 of the European Convention of Human Rights on those in relation to whom the acts complained of would be done, that is the members of trade unions.

The Committee recalls that it had also noted in its previous comments the TUC assertion that, where the incumbent trade union is non-independent, a request for de-recognition can only be made by an individual worker and not by an independent trade union; and that the independent trade union has no right of access to the workplace and no right to communicate with the workforce while de‑recognition procedures are taking place, while the non-independent union has a statutory right to communicate with the workers during the de-recognition process. The Committee also notes that the ITUC refers to various unfair practices and anti-union tactics in the framework of the statutory recognition scheme. The Committee once again requests the Government to provide its observations thereon.

The Committee notes with satisfaction that, in order to try to combat the practice of some employers and employment agencies of using “blacklists”, the Employment Relations Act 1999 (Blacklists) Regulations 2010 were introduced by the Government and came into force on 2 March 2010. The Committee requests the Government to provide in its next report any relevant information on the application of the Regulations in practice.

Shipping sector. The Committee had previously requested the Government to provide its observations on the TUC’s allegation that contracts of employment had 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 the shipping sector. The Committee notes the Government’s indication that it enforces the issues relating to employment contracts in the shipping sector through the Maritime and Coastguard Agency (MCA), entitled to examine contracts of employment. The Government indicates that, in conjunction with trade unions in the shipping sector, it has acted to ensure that the MCA surveyors can readily identify clauses which prevent workers from exercising their rights under the Convention. A training course was undertaken in conjunction with NUMAST (now Nautilus International) to help MCA surveyors identify any illegal elements in contracts of employment including evidence of terms which expressly forbid individuals from contacting a recognized trade union. Section 3.3.3 of MCA Operations Advice Note number OAN 378 also addresses this issue. The Government indicates that responsible officials are fully aware of the issue and the appropriate course of action when a violation is identified. It therefore considers that no legislative action needs to be taken at this time. The Committee requests the Government to indicate in its next report the number of violations identified within the reporting period and to specify the sanctions applied against the persons responsible for such violations.

Article 4. Statutory recognition procedure. The Committee had previously requested the Government to indicate the measures taken or envisaged to review, in consultation with the social partners, the Trade Union and Labour Relations Act (TULRA), so as to ensure 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. The Committee notes the Government’s indication that the vast majority of collective bargaining in the United Kingdom is undertaken by voluntary agreement between the parties. The Government believes that voluntary collective bargaining, which by definition is acceptable to both parties and shaped by them, is preferable to arrangements imposed by law. The statutory procedure was established as a fall-back to deal with those situations where voluntary agreement cannot be reached and was designed to encourage the voluntary resolution of questions which arise during the recognition process. The Government reiterates that, under the statutory procedure, trade unions may seek recognition for collective bargaining purposes on behalf of workers in a particular bargaining unit. A bargaining unit may or may not be a workplace (and all the workers therein), but it may also be defined in other ways, such as all the workers of a particular type across some or all of the employer’s workplaces, or just some workers in one occupational category at one workplace. A trade union specifies the bargaining unit for which it seeks recognition when making an application to the Central Arbitration Committee. The Government points out that, under the statutory procedure, two or more trade unions may make a joint application for recognition. Thus, the statutory procedure in effect encourages minority trade unions, where they exist, to collaborate with each other, enabling them to obtain recognition through combination, where none would otherwise achieve it individually. The Government points out that, where no union meets the 40 per cent statutory requirement, unions are still free to seek and reach a voluntary recognition agreement with an employer in the usual way. The Government explains that the current recognition procedure has become an established feature of the United Kingdom’s industrial relations system and does not need to be reviewed. 

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 employees of small businesses the right to be represented by a trade union (Schedule 1A, paragraph 7(1), of TULRA). The Committee had noted the Government’s opinion that it would be inappropriate to subject very small organizations to the detailed legal requirements of the statutory recognition procedure. It further noted the Government’s indication that trade unions were recognized by some very small employers through voluntary agreement and that such recognized trade unions could operate very effectively in micro-businesses. The Committee had noted the TUC’s proposal to have a simplified statutory procedure for small businesses which would reconcile the fundamental right of workers with the circumstances of the business and invited the Government to examine this matter with the social partners. It had further requested the Government to furnish statistical data on the number and coverage of collective agreements, particularly in small businesses. The Committee notes the Government’s explanation that the statutory recognition procedure is not the only method whereby collective bargaining can be established in the United Kingdom: the dominant method being for bargaining arrangements to be established voluntarily and by agreement between the parties and that there are no legal provisions or other measures to discourage smaller businesses from entering such voluntary agreements. It is therefore a matter for trade unions to use the freedom they possess to organize a workforce and persuade employers to recognize them.

With regard to the number and coverage of collective agreements, the Government points out that, historically, the incidence of union membership and collective bargaining in very small organizations is relatively low. It further points out that, as collective agreements and collective bargaining arrangements are not registered with a public authority, there are no reliable figures on the number of such agreements, though the expectation is that the figure would run into very many thousands. The extent of collective bargaining is measured by periodic surveys (such as the large-scale Workplace Employment Relations Survey – WERS), or by the more regular household survey (principally, the Labour Force Survey – the LFS). The last WERS was undertaken in 2004 and another is planned to take place in 2011.The latest LFS data for 2009 indicates that 32.7 per cent of all employees, and 73.7 per cent of trade union members, had their pay affected by collective agreements. Workplaces with more than 50 employees had higher collective bargaining coverage at 45.4 per cent than those workplaces with fewer than 50 employees (19 per cent). The Government acknowledges that recognized trade unions can operate very effectively in micro-businesses. The Government reiterates that its Strategic Partnership Fund helped finance an innovative research project with three trade unions with membership in small organizations – Amicus (GPMU section), the Knitwear, Footwear and Allied Trade Union and Community – to identity the positive effects recognized trade unions can bring to small enterprises. This work was completed in April 2007. The report can be used by trade unions and employers to better understand the role of trade unions in very small organizations. This report is the property of the unions concerned and is therefore disseminated by them. Finally, the Government considers that recognition arrangements in the United Kingdom are in full compliance with the provisions of the Convention. It therefore has no plans to review the statutory recognition procedure with regard to its application in small business.