Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the information supplied by the Government in its report. The Committee also notes the comments of UNISON and the Trades Union Congress (TUC) dated 13 November 2000 and 14 November 2001, respectively, and would request the Government to provide its observations thereon.

Articles 1(2)(b) and 4 of the Convention. In its previous comments, the Committee had 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 further amend section 146 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 had previously noted with interest that section 146(1)(a) of the TULRA had been amended by virtue of the Employment Relations Act, 1999, thus 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 the Government’s statement that prior to this amendment, discrimination by omission on the grounds of trade union membership was not prohibited. The Committee notes, however, that the amendment does not address the judicial interpretation whereby the protection of discrimination on the basis of trade union membership under section 146(1)(a) was found not to include protection for making use of the essential services of the union (e.g. collective bargaining). The Committee therefore once again requests the Government to indicate in its next report any steps taken to review and further amend section 146 of TULRA.

With respect to TURER, section 13, the Committee had previously noted that this provision provided for protection against action short of dismissal on grounds related to union membership or activities. The Committee had noted, however, that the provision allowed an employer wilfully to discriminate on anti-union grounds, as long as another purpose was to further a change in the relationship with all or any class of employees and had considered that such a provision could be considered as tantamount to condoning anti-union discrimination. The Government indicates that it is of the opinion that, in the United Kingdom’s long standing "voluntarist" system of industrial relations, employers should be free to seek to change their bargaining arrangements and the law allows them to do so. The Government adds that section 17 of the Employment Relations Act contains provisions to deal with situations where employers coerce workers to opt out of agreements and provides protection against dismissal or detriment where workers refuse to opt out of a collective agreement which applies to them. In this respect, first of all, the Committee would recall that the Government has an obligation under the Convention to provide for protection against anti-union discrimination and to promote collective bargaining; however, current legislation allows employers to offer financial inducements to employees to sign personal contracts even though they may be performing identical work as those who refuse to sign, thereby discriminating against the latter. Moreover, 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, the Committee notes the Government’s statement that no date for introducing such regulations has been set. In these circumstances, the Committee once again requests the Government to take steps to review and amend TURER, section 13.

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