Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the Government's report, including the Employment Relations Act, 1999, attached thereto. The Committee observes that the Trades Union Congress (TUC) submitted comments on 15 November 1999 and requests the Government to provide its observations on these comments. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1852 (304th Report, paragraphs 474-498; 309th Report, paragraphs 308-342).

Articles 1(2)(b) and 4 of the Convention. The Committee notes that it has previously raised concerns with respect to insufficient protection for workers against anti-union discrimination, with such lack of protection having harmful implications concerning the promotion of collective bargaining. The Committee had in particular requested the Government to review and amend section 146(1)(a) of the Trade Union and Labour Relations (Consolidation) Act, 1992 (TULRA) and section 13 of the Trade Union Reform and Employment Rights Act, 1993 (TURER) (amending section 148 of TULRA).

The Committee notes with interest that TULRA section 146(1)(a) has been amended by virtue of the Employment Relations Act, 1999, thus now making it unlawful to subject an employee to detriment short of dismissal by omission, and not only in cases of a positive action, due to trade union membership or activities. The Committee notes, however, that the amendments do not address the judicial interpretation whereby the protection of discrimination on the basis of trade union membership under TULRA section 146(1)(a) was found not to include protection for making use of the essential services of the union (e.g. collective bargaining). While the Employment Relations Act states that the Secretary of State may make regulations concerning cases where a worker is subjected to detriment by the employer or dismissed on the grounds that the worker refuses to enter into a contract that includes terms which differ from the terms of a collective agreement which apply to that worker (section 17), the Government gives no indication that such regulations have been made or are in the process of being drafted. The Committee, therefore, requests the Government to indicate in its next report any steps taken to review and further amend section 146 of TULRA or to adopt regulations pursuant to section 17 of the Employment Relations Act to ensure conformity with the Convention.

With respect to TURER section 13 the Committee notes that this provision provides for protection against action short of dismissal on grounds related to union membership or activities. However, the Committee notes that the provision allows an employer wilfully to discriminate on anti-union grounds as long as another purpose is to further a change in the relationship with all or any class of employees. The Committee notes the Government's statement that the wording of the section helps make clear the important distinction between rights to trade union membership and the rights to collective bargaining, and thus serves a useful purpose and ought to be retained. The Government adds that the Employment Relations Act deals with the abuse arising where employers coerce workers to opt out of agreements. While noting the information and explanations provided by the Government, in the Committee's view, such a provision could be considered as tantamount to condoning anti-union discrimination, and the provisions of the Employment Relations Act do not redress this situation. The Committee, like the Committee on Freedom of Association, therefore, calls again on the Government to take steps to review and amend TURER section 13.

The Committee is also addressing a request directly to the Government.