Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee takes note of the information provided in the Government’s report, and its reply to the comments of UNISON and the Trades Union Congress (TUC) of November 2000. It further notes the recent TUC comments of November 2002 on the application of the Convention and requests the Government to transmit its observations thereon.

The Committee notes that parts of the 1999 Employment Relations Act (ERA) have entered into force as planned: namely, the establishment of a statutory procedure for union recognition (June 2000); a simplification of the law on industrial action ballots and notices; and the right of workers to be accompanied by a representative at grievance hearings (September 2000). The Committee also takes note of the revised Code of Practice on Industrial Action Ballots and Notice to Employers.

1. Unjustifiable discipline (sections 64-67 of the 1992 Trade Union and Labour Relations (Consolidation) (TULRA) Act). The Committee recalls that its previous comments in this respect concerned provisions which prevent trade unions from disciplining their members who refuse to participate in lawful strikes and other industrial action or who sought to persuade fellow members to refuse to participate in such action.

The Government indicates that only 49 such complaints have been brought in the reporting period, in spite of an increase in the number of days of strike, which confirms that unions have adapted to the law and are not inhibited by it when taking industrial action. With respect to the TUC comments on the subject, the Government maintains that these sections provide necessary protections for individual workers in their relationship with their unions and do not represent an undue interference in internal affairs of trade unions, and that there is a need to reconcile the freedoms of individuals and those of unions.

The Committee takes note of this information. It recalls that unions should have the right to draw up their rules without interference from public authorities and so to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take lawful industrial action. It requests the Government to continue to keep it informed of developments in this respect in its future reports.

2. Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). The Committee recalls that its previous comments concerned the absence of immunities in respect of civil liability when undertaking sympathy strikes. It commented that workers should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful, and stressed that this principle is particularly important in the light of earlier TUC comments that employers commonly avoid the adverse effects of disputes by transferring work to associated employers and that companies have restructured their businesses in order to make primary action secondary.

The Government states that while the TUC agrees that employers often re-engage in negotiations with unions once a ballot provides evidence that its members would support industrial action, the TUC contends that this is irrelevant to the issue of solidarity action. The Government considers that this is indeed important in ascertaining whether the law is balanced. If it were not, employers would often ignore the result of a ballot in the knowledge that the threat of industrial action would have little effect on their organizations. This shows that the law does not disadvantage unions in their dealings with employers. These restrictions are necessary in a decentralized system of industrial relations, as they ensure that the widespread disruption to industrial life caused by secondary and solidarity action, once prevalent in the United Kingdom, is avoided.

While taking due note of the information provided by the Government, the Committee must recall once again that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and that they should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. It requests the Government to continue to keep it informed of developments in this respect in its future reports.

The Committee is raising a number of points in a request addressed directly to the Government.