Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 309, Mars 1998

1. 343. The Isle of Man Trades Council presented a complaint against the Government of the United Kingdom (Isle of Man) in a communication dated 18 December 1996, alleging violations of Conventions Nos. 87 and 98. Further information was received from the Isle of Man Trades Council in a communication dated 27 January 1997. In response to the allegations, the Government transmitted observations and information in communications of 4 March and 17 July 1997 and 23 January 1998.
2. 344. The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151) have been declared applicable to the Isle of Man.

A. The complainant's allegations

1. 345. In its communication of 18 December 1996, the complainant alleges that the Government, through the Manx Electricity Authority (MEA), a Statutory Board, violated Article 3 of Convention No. 87 in threatening to dismiss workers involved in a sit-in if they did not immediately return to work. The complainant further contends that the overall intent of Conventions Nos. 87 and 98 has been contravened since the MEA intended to inhibit the ability of the Transport and General Workers Union (TGWU) to represent and protect its members.
2. 346. The complainant explains that there was a dispute involving workers in the Manx Electricity Generation Division at Pulrose power station in June 1996. As a result of the dispute, the workers participated in a sit-in at Pulrose in a mess-room facility separate from the operational installation. The action commenced at 10 p.m. on 12 June 1996 and continued until 13 June 1996. Approximately 25 workers were involved in the dispute, mainly members of the TGWU, though in the initial stage, a small number of Amalgamated Engineering and Electrical Union members were also involved. According to the Isle of Man Trades Council, the TGWU members had been balloted in accordance with the provisions of the Trade Union Act, 1991. Shortly after midday on 13 June 1996, a management official informed the workers taking part in the sit-in that if they did not immediately return to work, they would be deemed to have dismissed themselves.
3. 347. In support of the contention that the MEA acted with intent to inhibit the ability of the TGWU to represent and protect its members, the complainant points to the retaliatory measures threatened against workers taking part in legitimate trade union action and the subsequent dismissal of the senior trade union representative of the TGWU (Mr. Volante).
4. 348. The complainant asserts that the legal provisions were complied with and that the union recognized the critical importance of the work involving power generation to a small island community. Initially, key switch control staff were left to maintain the system and the union had indicated at all times during the dispute that emergency coverage could be provided.

B. The Government's reply

1. 349. The Government in its replies of 4 March and 17 July 1997 and 23 January 1998 examines the status of the Manx Electricity Authority (MEA), noting that it is responsible for generating and distributing electricity throughout the island from its three power stations and a small hydroelectric power station. It is a Statutory Board, pursuant to the Statutory Boards Act, 1987. The MEA is responsible for its own employment and industrial relations policies and practice. A Terms and Conditions Agreement was negotiated with the three trade unions with which the MEA deals: the Transport and General Workers Union (TGWU), the Amalgamated Engineering and Electrical Union (AEEU) and the Engineers' and Managers' Association (EMA). The statutory limitations on the MEA's independence are set out in the Statutory Boards Act, 1987 and the Electricity Act, 1996.
2. 350. Regarding the dispute, the Government notes that a new Terms and Conditions Agreement, negotiated and agreed with the recognized trade unions, was signed on 1 March 1995, with retroactive effect from 1 April 1994. The new agreement no longer provided for payment for travel before the start of the working day. On 2 March 1995, the employees were issued with a new contract of employment, two booklets detailing the negotiated agreement, and a letter stating that the Isle of Man (and not the individual site) was their place of work. The TGWU raised as a disputed issue travel of their members in their own time and with their own transport to a different location at the start of the working day.
3. 351. The Government states firstly that the agreed internal procedures had not been exhausted. According to the Government, these additional internal procedures which could have been utilized had previously been agreed by all of the trade unions, including the TGWU. The Government explains that the Manx Electricity Authority (MEA) Terms and Conditions Agreement contains a "Procedure for the avoidance of disputes" in order to deal with differences between the MEA and any of the recognized trade unions by the establishment of a Disputes Subcommittee comprising up to three officers of the MEA and up to two full-time officers of the trade unions not involved in the dispute. If the Disputes Subcommittee cannot settle the dispute, there is a procedure for the matter to be referred to the Joint Negotiating Council (JNC), the parties to which are the MEA and the recognized unions. The constitution of the JNC contains a specific "Settlement of differences procedure". In cases where the JNC itself is unable to resolve a matter referred to it, there is provision for either conciliation or pendulum arbitration, with the arbitrator finding in favour of one side or the other.
4. 352. The Government states that the MEA was prepared to use these various internal procedures to resolve the dispute but that the TGWU refused to exhaust the procedures that had been agreed by all parties and decided instead to hold a secret ballot as required under the Trade Unions Act, 1991. The legislation requires that the questions relating to strikes or other industrial action be phrased in such a way as to remind workers that such action will involve them in a breach of contract of employment. A majority voted in favour of strike action, and a larger majority voted in favour of action short of a strike.
5. 353. On 4 June 1996, the TGWU decided that the industrial action would take the form of a ban by the day-work maintenance staff on travel between power stations, even if transport were provided. At 11.45 a.m. on 11 June 1996, the TGWU District Officer advised the Industrial Relations Officer, who had acted as the independent chairperson during talks between the TGWU and the MEA, that the industrial action would take immediate effect. The Industrial Relations Officer forwarded this information to the MEA by facsimile at 12.15 p.m. the same day. The Government contends that all members of management were not immediately informed of the existence of the industrial action; there was also some confusion as to whether the industrial action was official or unofficial.
6. 354. On 12 June 1996, the action constituting the substance of the complaint commenced. The Maintenance Manager requested Mr. Volante, a fitter, and Mr. Harrison, fitter's mate, to travel to another power station during MEA time and using MEA transport to undertake urgent work. The Government states that Mr. Volante and Mr. Harrison were asked to take a component from Pulrose power station to Peel power station and fit in to an engine which had broken down. Their supervisor judged that the carrying out of this work had priority over the work which they had been undertaking and that it was considered urgent by the MEA. The employees refused. Mr. Volante told the Maintenance Manager that he "did not work with contractors" and that "there was a dispute over travelling". The Maintenance Manager, allegedly unaware of the decision to take industrial action, remarked that if they did not comply, there would be no work for them at their present station and probably no pay. The employees believed they had been suspended, though the Government maintains that this was not in fact the case. Messrs. Volante and Harrison reported the incident to their colleagues, resulting in a sit-in at two of the power stations.
7. 355. The Government states that TGWU members who were involved in the sit-in initially tried to prevent the operation of the station by picketing the gate before withdrawing to the mess room and that they made no contribution to the running of the station. Further, the Government states that the MEA did not receive notification from the TGWU of any members that were either working or were prepared to work during the dispute. But because TGWU members only constituted part of the workforce, urgent work was maintained. The Government also points out that the other recognized unions were not in dispute with the MEA and did not take part in the sit-in whilst, in addition, some TGWU members did not agree with their union's chosen course of action and therefore continued to work.
8. 356. Afterwards Messrs. Volante and Harrison were given written instructions to travel to the other power station, stipulating that suspension would result if they refused. As a result of their continuing refusal, they were advised in writing that they were suspended with pay pending the matter being dealt with in accordance with the internal disciplinary procedures. They then refused to comply with an instruction to leave the site. They were informed that this further refusal would be regarded as an additional breach of the Employee Rules.
9. 357. On 13 June 1996, the Industrial Relations Officer reminded the workers involved in the sit-in that, in accordance with the ballot papers they had completed, in taking industrial action they were breaching their contracts of employment. They were subsequently advised by a member of management that as a result of the sit-in, the workers were in breach of their contracts of employment and would be deemed to have dismissed themselves if they did not return to work immediately. The workers involved in the sit-in then returned to work and Messrs. Volante and Harrison left the site.
10. 358. Formal disciplinary interviews were held with Messrs. Volante and Harrison; as a result, both were dismissed. This decision was appealed to the Chief Executive of the MEA who confirmed the dismissal in the case of Mr. Volante and varied the penalty in the case of Mr. Harrison. According to the Chief Executive, the difference between the two was their previous disciplinary record and the fact that Mr. Volante was the fitter and Mr. Harrison the mate. Mr. Harrison was downgraded and transferred to another location.
11. 359. In accordance with the agreed internal disciplinary procedure, a further appeal in the case of Mr. Volante was held before an independent person, an arbitrator from the Advisory, Conciliation and Arbitration Service (ACAS), assisted by two non-voting assessors. The independent person confirmed the dismissal. The Government then summarizes the reasons of the independent person for confirming Mr. Volante's dismissal, including his failure to inform the Maintenance Manager that his refusal to travel to the other power station was based on the existence of industrial action, his failure to establish if he had been suspended by the Maintenance Manager and his refusal to leave the power station The Government attached a copy of the decision to its communication of 4 March 1997. Mr. Volante brought a case of unfair dismissal before the Employment Tribunal, which had been scheduled for hearing on 17 March 1997. In its communication of 17 July 1997, the Government informed the Committee that the dispute would not proceed to the Employment Tribunal because the matter was settled through conciliation on 15 May 1997. The original dispute between the MEA and the TGWU involving travel before the start of the working day was resolved through internal procedures.
12. 360. In commenting on the facts, the Government claims that the initial dispute involving the TGWU was unfounded, and in any event, the agreed dispute settlement machinery should have been used to resolve the dispute. The Government attached to its communication a copy of the agreement on the procedure for the avoidance of disputes. Further, the Government argues that the TGWU did not exhaust the procedures for resolving disputes under the Trade Disputes Act, 1985, gave virtually no notice of the industrial action and did not make it clear whether the action was official or unofficial.
13. 361. Regarding the threat to dismiss those participating in the sit-in, the Government asserts that "whether intimidation, threats or retaliation' ... is an accurate description of the MEA's reminder to its employees of their contractual position, is a question of semantics ..." It goes on to state that on the evening of 12 June 1996, Mr. Volante made a tacit threat of violence against the Generation Manager.
14. 362. The Government cites the recent legislation that in its view enhances worker protection, including the Employment Act, 1991 under which an employee dismissed while participating in official or unofficial industrial action may bring a case of unfair dismissal providing one or more of the other employees participating in the industrial action at the date of the complainant's dismissal were not dismissed; or one or more of those employees have within three months been offered re-engagement and the complainant has not. Under the Trade Union Act, 1991, workers taking industrial action are not liable for damages to their employers for breach of their contracts of employment. Finally, the Government cites the Trade Disputes Act, 1985 which provides for collective trade disputes to be referred to the independent Industrial Relations Service for possible resolution.

C. The Committee's conclusions

1. 363. The Committee notes that this case raises allegations of interference with the right of a trade union to organize its administration and activities and to formulate its programmes. It also advances issues of anti-union discrimination, in particular dismissal and downgrading/transfer of those involved in legitimate trade union activities.
2. 364. The first issue that arises is the fact that the agreed internal procedures for the resolution of a dispute had not been exhausted. The Committee notes that several additional internal procedures for the avoidance and settlement of disputes which could have been utilized were ignored by the TGWU. In this regard, the Committee recalls that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 500). The Committee considers that in this case, the agreed dispute settlement machinery should have been used by the TGWU to resolve the dispute.
3. 365. Secondly, although neither of the parties has made reference to it, the Committee recalls that it has in the past considered electricity services as essential services. The Committee has expressed the view on several occasions that the right to strike may be restricted or even prohibited in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., paras. 536 and 544). In this regard, the Committee notes that in this particular case strikes in the power stations are permitted by the national legislation. Referring to the Government's complaint that virtually no notice was given of the industrial action, the Committee recalls that the requirement for a period of notice to be given in services of social or public interest does not undermine the principles of freedom of association (see Digest, op. cit., para. 504). The Committee feels that such period of notice, especially in the case of essential services, should have been given.
4. 366. Regarding the allegations of anti-union discrimination set out in the complaint, three issues arise: first, whether the treatment of Mr. Harrison, who was downgraded and transferred due to his conduct during the industrial action, amounted to anti-union discrimination; second, whether the dismissal of Mr. Volante, a senior trade union representative, for his conduct during the course of industrial action, amounted to anti-union discrimination; and finally, whether there is effective protection for workers taking part in industrial action.
5. 367. As regards Mr. Volante's situation, the Committee notes that a settlement has been reached on this matter between Mr. Volante and the MEA through conciliation. In these circumstances, the Committee considers that this aspect of the case does not call for further examination. As regards Mr. Harrison's situation, the Committee notes that his demotion and transfer came after his refusal to cooperate with the written orders of the Maintenance Manager. The Committee is of the view that in such cases, the sanctions should remain proportionate to the fault that was committed. Considering all the circumstances of this case, including the fact that Mr. Harrison has been downgraded and transferred for a considerable amount of time, the Committee urges the Government to take the necessary measures to ensure as soon as possible the reinstatement of Mr. Harrison to his former employment status.
6. 368. As regards the more general protection for workers taking part in industrial action, the Committee notes that the Government in its reply points out that, pursuant to section 49 of the Employment Act, 1991, workers are protected from selective dismissal and from selective denial of re-engagement. However, the Committee notes that this provision does not provide adequate protection since it still permits an employer to dismiss an entire workforce, and to rehire on a discriminatory basis as long as there is at least a three month delay between the dismissal and the rehiring. The Committee shares the opinion of the Committee of Experts on the Application of Conventions and Recommendations which stated as follows:
   • The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour; and (ii) because an employer can rehire on a discriminatory basis so long as there is a gap of three months between the dismissal of the "victimized" workers and the rehiring. Consequently, the Committee asks the Government to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above.
7. 369. The Committee, therefore, urges the Government to amend the relevant legislation to ensure protection against dismissal and other prejudicial acts for participating in industrial action. The Committee draws this aspect of the case to the attention of the Committee of Experts.