Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 76, 1964

1. 222. When the Committee examined this case at its meeting in October 1962 it submitted an interim report to the Governing Body in paragraphs 136 to 243 of its 67th Report, which was approved by the Governing Body at its 154th Session (March 1963).
2. 223. Paragraph 243 of the Committee's 67th Report contains the recommendations of the Committee and reads as follows:
3. 243. In these circumstances the Committee recommends the Governing Body:
   • (a) to propose to the Government that it should arrange for an impartial, full and prompt inquiry, followed by an attempt to promote further negotiation towards an agreed settlement, as recommended in paragraphs 241 and 242 above;
   • (b) to note that the Committee has deferred until May 1963 its further examination of the allegation of the complainants that the Government is failing to ensure the application of the Right to Organise and Collective Bargaining Convention, 1949, in order to afford the Government an opportunity of indicating whether it is in a position to accept this recommendation, and that the Committee will report further to the Governing Body at its 155th Session.
4. 224. This decision of the Governing Body was brought to the notice of the Government of the United Kingdom by a letter dated 13 March 1963.
5. 225. At its meeting on 27 May 1963 the Committee had before it a letter from the Government, received on 8 April 1963, in which the Government stated that it accepted the recommendation of the Committee and had decided to arrange for an inquiry into the alleged matters to be conducted by the Hon. Lord Cameron, D.S.C, Q.C, a Judge of the Court of Session, assisted by assessors nominated by the interested parties.
6. 226. The Committee submitted a further interim report to the Governing Body in paragraphs 280 to 284 of its 70th Report, which was approved by the Governing Body in the course of its 155th Session.
7. 227. Paragraph 284 of the Committee's 70th Report contains the recommendations of the Committee and reads as follows:
8. 284. In these circumstances the Committee recommends the Governing Body:
   • (a) to note with satisfaction the Government's statement that, accepting the recommendation contained in paragraph 243 of the 67th Report of the Committee, it has decided to arrange for an inquiry into the matters alleged, to be conducted by the Hon. Lord Cameron, D.S.C, Q.C, assisted by assessors nominated by the interested parties;
   • (b) to request the Government to be good enough to keep the Governing Body informed as to further developments and to furnish the report and findings of the inquiry when they become available.
9. 228. This decision of the Governing Body was brought to the notice of the Government by a letter dated 13 June 1963.
10. 229. At its meeting on 4 and 5 November 1963, the Committee, as indicated in paragraph 8 of its 72nd Report, adjourned its examination of the case, as it was still awaiting information from the Government as to the outcome of the inquiry.

A. A. The complainants' allegations

1. 230. By a letter dated 11 December 1963, the Government forwarded a copy of Lord Cameron's report, which had been presented to Parliament on 28 November 1963. In its letter the Government draws particular attention to paragraph 303 of the said report, which reads as follows:
   • It appears to me, therefore, that as indicated in paragraphs 264 to 283 of the specific allegations made against the four banks, some which I have selected are irrelevant to charges of breach of Article 2, paragraph 2, of Convention No. 98 in that they relate to events long prior to the signature of the Convention and are not related to a continuing course of conduct subsequent thereto, that those which are relevant in time are for the most part either not proved or shown to be seriously exaggerated or misrepresented. Under the wider question as to whether, taking into account the admitted circumstances and proved facts as a whole, it would be said that the complainers succeeded in bringing home breach of Article 2, paragraph 2, in either of its branches, I should conclude, were mine the decision, that the complainers have failed to do so.
2. 231. The Government also draws attention to the concluding section of Lord Cameron's report, in which suggestions are put forward for improving relations in the banking industry as a whole, and it is pointed out that the inquiry has created an opportunity for securing a permanent improvement in relations in that industry.
3. 232. The Government goes on to state that the Minister of Labour has accepted Lord Cameron's view that the National Union of Bank Employees (N.U.B.E.) has " not succeeded in establishing that Her Majesty's Government is in breach" of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Minister, continues the Government, " has also welcomed the suggestions made for action to improve relations in the banking industry, and he has commended these suggestions to the organisations concerned for urgent and careful consideration ". In conclusion, the Government adds that " officers of the Department are getting in touch with the organisations to offer their help in following up these suggestions ". The Government asks for the terms of its letter and Lord Cameron's report to be brought to the notice of the Committee.
4. 233. The first two parts of the report are formal. Parts III and IV indicate the form and history of the complaint and make a brief analysis of it.
5. 234. In Part V of his report, Lord Cameron makes his analysis of the relevant Articles of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by the United Kingdom.
6. 235. He refers especially to Article 2 of the Convention, which reads as follows:
7. 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.
8. 2. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.
9. 236. In this connection Lord Cameron remarks that the said Article 2 is silent as to the objects for which domination or control is being sought or acquired, but that "the promotion or support must be for the purpose of domination, so that the mere fact of promotion or support of workers' organisations is not per se a contravention of the Article". However, the complainants had stated that domination was exercised in order to afford a pretext for withholding recognition of the National Union of Bank Employees and for not according negotiation rights to it. This, says Lord Cameron, opened the door to a difficult question " which does not expressly arise out of the provisions of that Article", that is, "the question of the extent to which an employer is entitled to select which trade union or association of workpeople he will accept as representative of the whole, where more than one union or association can claim membership among employees in the same grade or grades ". That is why, says Lord Cameron, he permits himself subsequently to make certain observations on wider issues raised in the inquiry.
10. 237. Lord Cameron also draws attention to his view that, while the complaint is not based on Article 4 of the Convention, the complainants allege certain breaches of that Article with the apparent idea of contending that national negotiating machinery should be established and that N.U.B.E should have the right to be recognised as the employees' representative. However, the complaint not being based on this Article, he declined to deal with it as if it were, although he does not consider that such a contention appears to be warranted from the wording of Article 4.
11. 238. Lord Cameron refers to arguments of interpretation submitted to him. Counsel for the District Bank expressed the view that the use of the plural in paragraph 1 of Article 2 of the Convention should mean that the whole Article cannot refer to acts of individual employers who are not members of an employers' organisation. The complainants' view was that the term " employers' organisation " in paragraph 2 of Article 2 covers such entities as joint stock companies. He rejects these arguments and expresses the opinion that the word " employers " in Article 2, paragraph 2, must be interpreted to include the singular, especially having regard to the fact that the words un employer appear in the French text.
12. 239. In Lord Cameron's view it would be unfortunate if a complaint raising " serious and important issues of act and of policy should be determined upon a technical point of interpretation ".
13. 240. The Committee takes formal note that Lord Cameron has rejected the contention that Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), cannot be construed as applying to individual employers who are not members of employers' organisations.
14. 241. Parts VI and VII of the report relate to the scope of the inquiry and to the opening submissions on behalf of the parties. In particular, he states his reasons for limiting the inquiry to the cases of the four banks named by the complainants and not extending it to the whole banking industry. Having heard counsel for both sides, Lord Cameron rules that his terms of reference must limit him to the particular matters which were set out in the complaint submitted to the I.L.O by N.U.B.E, its supplementary memorandum and relative appendices, and the statements contained in the replies made to that complaint in relation to the four banks named therein. He adds : " I was appointed not to hold a court of inquiry in the familiar terms which have been applied to specific industrial disputes, but to hold an extra-statutory inquiry into allegations made to an external international authority and into the replies to these allegations made by the parties directly affected or named."
15. 242. The Committee takes note of the reasons given by Lord Cameron for his ruling that his inquiry should be limited to matters relating to the four banks which were the subject of criticism in the complaint examined by the Committee, and observes that in this respect the inquiry has given effect to the recommendation of the Governing Body that an inquiry into the matters alleged be arranged by the Government.
16. 243. Part VIII of the report reviews the evidence of witnesses on behalf of the complainants and of the staff associations concerned. In fact, this evidence in substance covers all the matters already submitted to the Committee by the complainants and in the statements of the bank staff associations. In the inquiry, however, no witnesses appeared as representing the directorates of the banks concerned, although the banks had previously furnished their own observations to the Committee. However, counsel for each of the four banks questioned the witnesses called by the complainants and the staff associations. On this aspect of the matter Lord Cameron refers to the protest by counsel for N.U.B.E when the banks elected not to give evidence, but, says Lord Cameron, " it seemed to me that the real substance of his complaint was that this decision deprived him of the opportunity of cross-examining any witnesses who might have been called. But I did not feel that the purpose or scope of this inquiry was limited or to any degree defeated by this decision ".
17. 244. In this connection, the Committee considers that, when a government agrees to undertake, in response to a recommendation by the Governing Body, a national inquiry of the kind arranged in the present case, questions of procedure which may arise in the course of such inquiry are clearly matters to be dealt with by the body to which the inquiry is entrusted and are not appropriate for further consideration by the Committee when it has before it the results of the inquiry.
18. 245. Part IX of the report contains an account of the closing submissions by counsel for the various parties.
19. 246. Lord Cameron's "conclusions in fact" form the subject of Part X of the report. In this part Lord Cameron, at some length, reviews and gives his view as to how far each of the very large numbers of facts alleged are to be regarded as founded or not founded, in regard to each of the four banks named in the complaint. In paragraphs 284 to 303 he arrives at his general conclusions on the evidence, some of the essential aspects of which are analysed below.
20. 247. As far as the contentions of N.U.B.E as to its representativeness are concerned, he finds that in the case of the District Bank and Martins N.U.B.E has something like 40 per cent membership, considerably less in the National Provincial Bank, but that it has 700 members in the Yorkshire Bank compared with the 500 of the staff association, but that, in any event, N.U.B.E. " has achieved a respectable degree of membership viewed either absolutely in relation to the total staffs or relatively by comparison with the membership figures of the staff associations.... It would at least appear to be a factor which would provide a relevant and substantial consideration in any deliberation or discussion as to recognition of the union in a negotiating and representative capacity."
21. 248. None of the four banks has granted recognition to N.U.B.E, that is, the managements have no personal contact with the officers of the union, although correspondence from the union concerning terms and conditions of employment and other matters is " accepted or at least noted ". The banks maintain that recognition has not been accorded because they consider the legitimate interests of the employees to be adequately safeguarded by the staff associations. It is found that facilities for N.U.B.E meetings are not officially provided on the premises of the four banks and no assistance is afforded in the distribution of the union's literature or exhibition of its notices or announcements; Lord Cameron says : " As, however, none of the banks recognises the union's representative capacity, it is not an illogical consequence." To this extent, he adds, the positive assistance given to the staff associations in this regard puts them in a stronger recruiting and publicity position.
22. 249. Lord Cameron accepts that, prior to 1945, the management of the District Bank exercised discrimination against members of the union (then known under another name) and exercised pressure to cause them to leave the union. He has found no such evidence in the case of the other three banks, and no evidence of such conduct in the case of the District Bank since the change of management in 1945.
23. 250. On the general issue of employer domination, Lord Cameron finds that there was no evidence " of any direct influence or pressure brought to bear by any of the four banks on members or officers of their staff associations to adapt or alter Constitutional provisions to the employers' liking, to influence selection or election of office-bearers, or in any way to influence their actions while in office", and that no firm basis could be found for the suggestion that the staff associations are not independent, or that they are dominated by the employers or that they receive financial or other support for the object or purpose set forth in Article 2, paragraph 2, of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). With respect to the alleged financial support of the staff associations by the banks, Lord Cameron considers that the evidence given showed that the circulation of staff association literature is facilitated by use of the banks' mail, that sometimes bank stationery is used by staff association officers, and that the principal officials of the staff associations receive their full salary from the banks although they do a greater or less amount of staff association work in banking hours with the consent of the employers. It did not appear to him, however, that any of these financial benefits or advantages operate so as to bring the staff associations under domination or control of the employers in the generally accepted sense of either of these words, or that they were given to further any such object or purpose, or that they materially affected the capacity of the staff associations for independent financial existence. He rejects the complainants' argument that the benefits in question infer domination.
24. 251. Lord Cameron then deals with the complainants' contention that the fact that, by their Constitutions, the staff associations have no power to call a strike means that they accept a permanent position of subjection to the banks. He finds no evidence to show that the banks obliged the associations to frame their Constitutions in this way, and points to the fact that the arrangements now in force for the settlement of disputes include independent and binding arbitration.
25. 252. In all these circumstances Lord Cameron formulates the conclusions, with respect to the allegation of violation of Article 2, paragraph 2, of the Right to Or and Collective Bargaining Convention, 1949 (No. 98), which are reproduced in the letter from the Government of the United Kingdom and cited in paragraph 230 above, and which he terminates by saying that, with regard to the question as to whether the complainants have succeeded in proving such violation, " I should conclude, were mine the decision, that the complainers have failed to do so ".
26. 253. Lord Cameron thus expresses his own view while recognising that the responsibility for the actual taking of decisions as to whether any established facts constitute an infringement of an International Labour Convention lies elsewhere. The Committee attaches the greatest importance to the principle that the question as to whether an International Labour Convention has or has not been violated is a matter for international and not national judgment. In the present case a national inquiry was suggested with a view to illuminating and elucidating a mass of complex and controversial facts which could not have been satisfactorily determined by an international procedure in all the circumstances of the case. The Committee accepts the findings of fact in full, but, while noting Lord Cameron's own view that if it were for him to decide he would consider the facts as found do not constitute a violation of the Convention, considers that any decision as to whether there is or has been any violation of the Convention on the basis of the facts submitted, if it should at any time become necessary to decide the question, is a matter for determination by the appropriate international procedures.
27. 254. Lord Cameron then proceeds, in Part XI of his report, to set forth his general conclusions.
28. 255. He expresses the view that a union's claim to recognition does not exclude the right of employees freely to select the association or union of their choice, but that this freedom in turn gives rise to another question as to freedom of choice-" the freedom or right of an employer to select which of two or more unions or associations of employees, drawing their membership from the same grade or grades, he will recognise as representatives of those employees ". In this connection, he refers to the examination of Case No. 96 (United Kingdom) by the Committee on Freedom of Association as affirming that employers have this right.
29. 256. This reference to the meaning of the conclusions reached in Case No. 96 calls for certain observations on the part of the Committee. The finding of the Committee in Case No. 96 was that nothing in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), " places a duty on a government to enforce collective bargaining, by compulsory means, with a given organisation, an intervention which ", as the Committee had observed in an earlier case, " would clearly alter the nature of such bargaining ". In that case, union security arrangements had been made by the employers in agreement with very large unions representing nearly 100 per cent of the employees. On those facts, the Committee considered that it was only called upon to consider whether or not trade union rights were infringed because an inter-union dispute had resulted in the employers recognising certain unions for the purposes of collective bargaining while refusing to recognise the complaining organisation, the government being unwilling to intervene in the matter. The Committee concluded that the complainants had not offered sufficient proof that the refusal of the employers to recognise the complaining organisation as a bargaining agent constituted, in that particular case, an infringement of trade union rights.
30. 257. The facts in the present case are substantially different. Article 4 of the Convention calls for " measures appropriate to national conditions to be taken where necessary ". The question of what measures are appropriate and necessary must be governed by the facts of each particular case.
31. 258. Lord Cameron then refers to the desire of N.U.B.E for the setting up of national negotiating machinery. In support of its claim that such machinery would be more effective, N.U.B.E had drawn attention to the existing manner of applying, pay scales arising from agreements or awards in which the union and the Committee of London Clearing Bankers are concerned. Before this issue can be usefully approached, however, Lord Cameron considers that there must be a settlement of more immediate difficulties subsisting in the relations between the parties directly involved in the present case.
32. 259. One difficulty, he considers, is that of the attitudes of the parties to each other. He feels that one factor which has influenced the staff associations has been the claim of N.U.B.E to have not merely recognition, but sole recognition. Over many years the four banks have not deviated in their attitude to N.U.B.E. But the attitude of N.U.B.E has not always been consistent. It was ready in 1955 to join with the Central Council of Bank Staff Associations in the formation of negotiating machinery with the Committee of London Clearing Bankers. Since the failure to reach final agreement at any time, says Lord Cameron, the attitude of N.U.B.E against any co-operation had hardened. Some signs of less rigidity on the part of N.U.B.E which Lord Cameron feels he sensed during the inquiry would, if that were the case, be " a development to be welcomed and encouraged ". In this connection, too, he expresses his view that he can see no sign of the four banks withdrawing recognition from the staff associations and that it does not appear to him that they have any reason to do so. Yet, he adds, though N.U.B.E is not recognised as a negotiating body and its subscriptions are higher than those of any staff associations, a large number of employees of the four banks choose to be members of N.U.B.E.
33. 260. This general assessment of the factual situation leads Lord Cameron, in paragraphs 319 to 339 of his report, to make a number of concluding observations and suggestions.
34. 261. All these circumstances, declares Lord Cameron, " suggest that the four banks as well as the N.U.B.E might find it of advantage to look again at the realities of the situation as they exist today and in the light of the facts that have been established " by the inquiry.
35. 262. Firstly, he considers that there are certain points for the managements of the four banks to bear in mind. One of the facts which impressed him is that, while the four banks accept written representations from the officers of N.U.B.E, they will not accept oral representations. As it had been proved, the Midland Bank, the Westminster Bank, and on certain matters, Williams Deacon's Bank, do accept oral representations from N.U.B.E, and the General Secretary of N.U.B.E is accorded the right of interview with the Chairman of Lloyds Bank, while N.U.B.E is associated in negotiating machinery with the C.W.S and Trustee Savings Banks. While one reason why the four banks do not change their attitude towards N.U.B.E may be a certain degree of immoderateness at times on the part of the union, Lord Cameron is not sure that refusal to have any contact with an organisation is always the best method of combating extreme views held by that organisation where it is representative of a substantial body of workers. The removal of this distinction between written oral representation would not appear to present great difficulty and, in view of the importance attached to it by the parties, would remove one obstacle to a radical improvement in the relations between N.U.B.E and the four banks. He adds : " I think also that consideration of the extent to which N.U.B.E has arrived at a modus vivendi with other banks... might be most relevant and useful when the four named banks come to consider the terms of this report and its findings." Lord Cameron sees a " certain cogency " from a practical point of view, having regard to its numerical strength, in N.U.B.E's contention that its voice should be heard in presentation of matters affecting its members to the managements of individual banks more effectively than can be done by the submission of written representations alone.
36. 263. Lord Cameron then calls upon N.U.B.E to reconsider its own attitudes, stating: "A further point which appears to me to arise, and to deserve serious consideration by those responsible for the direction of the policy of N.U.B.E, is that one consequence of this inquiry should cause them to look again at the staff associations in the light of the facts as they exist today." He criticises N.U.B.E for having " failed to appreciate the factual independence of the staff associations in their Constitutions and functions " and the significance of their membership strength, and strictures the union for some of the attitudes it has adopted in the past and for not burying ancient grievances and looking at present-day realities.
37. 264. Addressing himself both to N.U.B.E and the staff associations, Lord Cameron suggests that a reappraisal of the position should " lead responsibly-minded men both in the N.U.B.E and in the staff associations to a recognition and acceptance of each other... as representative organisations " with a community, if not identity, of interest.
38. 265. In the opinion of Lord Cameron it is amply clear that there is great room for improvement in the relations of all parties principally concerned and that, in the interests of the industry as a whole, there is need for action to secure that improvement. He adds significantly: "The occasion of this complaint, the action of the Committee taken after consideration of it and the holding of this inquiry, with its full, careful and competent presentation of the facts and arguments, all suggest that the opportunity for securing such permanent improvement now presents itself to those who are concerned and may not readily recur."
39. 266. Without attempting to point to any precise solution, Lord Cameron feels that a wise and first step would be for all parties to try, with the aid of officers of the Ministry of Labour, to explore the extent, manner and method in which the N.U.B.E representa-tions on matters affecting the interest of their members could be conveyed to and considered by and with the managements of the four banks or with their representatives in oral as well as written exchanges, but without prejudice to the full recognition at present enjoyed by the staff associations.
40. 267. He rejects, however, any claim by N.U.B.E to the right of exclusive representation of bank employees, and refers again to what he calls " an employer's undoubted right to select which of two or more workers' organisations he is prepared to acknowledge as representative of his employees and with which he is prepared to negotiate terms and conditions of employment ". But for practical purposes, he says, the existence of N.U.B.E, with a nation-wide membership, is a fact which can no more be ignored than the existence of the independent staff associations. In view of the relations already existing with the Committee of London Clearing Bankers and of the factual existence both of N.U.B.E and the Central Council of Bank Staff Associations, Lord Cameron suggests that the field of " national activity " might be one in which there is greatest room for agreement. Any mutual agreement on national, general issues would inevitably have its reaction on relations at the bank level.
41. 268. The Committee observes that there has been a full inquiry by Lord Cameron into all the facts and issues which were submitted to the Committee. As a result of that inquiry Lord Cameron has presented a comprehensive report in which he finds that certain facts have been proved and others have not been proved by the complainants. While his own view is that the evidence does not reveal any infringement of the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), he declined to conceive his task as one of determining "serious and important issues of fact and of policy upon a technical point of interpretation". In this broader approach to the problem, the inquiry has undoubtedly revealed that a considerable number of elements have subsisted and still subsist which are not at all conducive to sound industrial relations in the banking industry. While he has limited his inquiry to issues involving the four banks named in the case and his recommendations for immediate consideration relate essentially to those issues, he has made a number of suggestions as to action which might be taken to effect a permanent improvement in industrial relations which would benefit the banking industry as a whole and the attainment of which would call for the co-operation of employers and employees in that industry in general.
42. 269. When the Governing Body proposed to the Government of the United Kingdom that it should arrange for an impartial, full and prompt inquiry, it further proposed to the Government, on the recommendation of the Committee, that, if the inquiry should be made, it should be followed by an attempt to promote further negotiation towards an agreed settlement. Lord Cameron has made a number of suggestions as to lines of future action and conduct which might help to attain such a settlement, the first of which, in point of time, was for the parties to seek to enlist the aid of officers of the Ministry of Labour. In doing so he urged that the present moment presents an opportunity which may not recur for endeavouring to seek by negotiation an improvement in the situation as a whole.
43. 270. The Government now states, in its letter dated 11 December 1963, that it " has welcomed the suggestions " of Lord Cameron, " made for action to improve relations in the banking industry " and " that officers of the Department are getting in touch with the organisations to offer their help in following up these suggestions ".