Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

1. The Committee notes the report of the Government, and the communications from the Trades Union Congress (TUC) dated 29 January, 22 May and 21 December 1990. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1518 (275th Report of the Committee, approved by the Governing Body at its 248th Session (November 1990), paras. 53-79).

2. Article 1 of the Convention

With reference to its 1989 observation, the Committee notes with interest that section 1 of the Employment Act, 1990 makes it unlawful for an employer to refuse to employ a person on a number of grounds, including the fact that that person is a member of a trade union. Persons who consider that they have been denied employment on this ground may present a complaint to an industrial tribunal, and if their complaint is upheld the tribunal may award compensation and/or make a recommendation that the employer takes particular remedial action.

The Committee asks the Government to indicate, however, whether section 1 provides protection against denial of employment on grounds of past trade union membership or on grounds of trade union activity. It is also asked to provide a more precise indication of the remedies which are available to employees who have been subjected to unlawful discrimination, and as to the penalties (if any) which may be imposed in respect of such discrimination.

3. Article 4 of the Convention

(a) School teachers in England and Wales

With reference to the provisions of the Teachers' Pay and Conditions Act, 1987, which are not compatible with the requirements of Article 4 of the Convention, in its 1989 observation the Committee expressed the hope that any new arrangements which might be adopted in relation to the determination of pay and conditions of school teachers in England and Wales would enable such teachers to negotiate on a voluntary basis their terms and conditions of employment and their remuneration in accordance with the Convention.

In its report the Government indicates that because of delays in reaching agreement on new negotiating arrangements for teachers in England and Wales it had been necessary to extend the operation of the Teachers' Pay and Conditions Act, 1987 to 31 March 1991. On 23 July 1990, the Secretary of State for Education and Science had announced details of the Government's proposals for new negotiating arrangements to replace the system put in place by the 1987 Act. He had also indicated that it would be necessary to extend the operation of the 1987 Act for a further year to 31 March 1992 because it would not be possible to have the new arrangements in place in time to deal with the April 1991 pay settlement. According to the Government the legislation to establish the new system was introduced in Parliament in November 1990, but had not yet become law.

The Committee notes that the proposed new arrangements were examined by the Committee on Freedom of Association in Case No. 1518. That Committee considered that the new arrangements constituted a step in the right direction in that: (i) they incorporated an element of negotiation between employers and teachers at national level; (ii) that the Government would not be a direct party to the negotiations; and (iii) that there would not be a pre-set financial limit on the negotiations. However, the Committee also considered that the new arrangements were defective in a number of respects. The most important of these was the fact that the Secretary of State still appeared to have an absolute discretion to disregard any bargaining outcome with which he or she disagreed. The Committee also expressed concerns in relation to the role of the proposed Advisory Committee and as to the proposals relating to "opting out" of national level negotiations at the instance of local education authorities.

The present Committee shares the views of the Committee on Freedom of Association in relation to these new bargaining arrangements, and calls upon the Government to re-examine its proposed legislation in order to ensure: (i) that it respects the right of the parties to the collective bargaining process to conclude and to implement their agreement; and (ii) that it encourages and promotes the development and utilisation of collective bargaining machinery in the manner envisaged by Article 4 of the Convention. The Committee also considers that the operation of the Teachers' Pay and Conditions Act, 1987 should not be extended beyond 31 March 1992.

(b) Collective bargaining in the newspaper industry

By its communication of 22 May 1990 the TUC, on behalf of itself and the National Union of Journalists (NUJ), and supported by the ICFTU and the International Federation of Journalists, raises certain concerns as to the lack of legislative provision whereby employers can be obliged to engage in collective bargaining with the trade unions to which their employees belong. According to the TUC the absence of such machinery is not in conformity with the Government's obligations under Article 4 of the Convention. In support of these assertions the TUC provides detailed evidence of the unilateral withdrawal of established negotiating rights in the newspaper industry in circumstances where the union concerned (the NUJ) had no legal means to oblige the employer concerned to negotiate with it, despite the fact that the great majority of journalists employed by the newspaper in question were members of the NUJ.

The Committee recalls that it has always attached great importance to the principle that employers should, for the purposes of collective bargaining, recognise the organisations which are representative of the workers they employ (General Survey, 1983, para. 296). However, the Committee has never taken the view that conformity with Article 4 requires that there must be in place machinery whereby employers can be obliged to negotiate with such organisations. Like the Committee on Freedom of Association, the Committee considers that intervention of this nature would alter the "voluntary" nature of bargaining (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 614).