Caso individual (CAS) - Discusión: 1991, Publicación: 78ª reunión CIT (1991)

The Government has communicated the following information:

In their 1991 report the Committee of Experts made observations on a number of aspects of the application of Article 3 of the Convention with particular reference to the Employment Acts of 1980, 1982, 1988, 1989 and 1990 and the Trade Union Act of 1984. The following represents the United Kingdom Government's response to the points raised by the Experts' observations.

1. "Unjustifiable discipline" (section 3 of the 1988 Employment Act)

The United Kingdom Government is of the view that provisions are needed to ensure that trade union members are free "to make up their own minds and follow their own consciences without fear of disciplinary action by their union".

The United Kingdom Government:

(a) therefore welcomes the Committee of Experts' view that section 3(3)(c) of the 1988 Act, which states that trade unions may not discipline members who, in good faith, assert that their union has breached its own rules or the law of the land, is not incompatible with Article 3 of the Convention;

(b) is, however, unable to reconcile the Experts' further observations on section 3 with the agreed principle that unions' freedom to make their own rules is not absolute, and is subject to the need to respect the fundamental human rights and the law of the land;

(c) emphasises that the provisions of section 3 of the 1988 Act impose no limitation on what may, or may not, be included in a union's own rules;

(d) observes that unions are still able, if they wish, both to have rules which allow them to discipline members for refusing to take part in industrial action and to implement those rules - as is demonstrated by a number of instances since the passage of the 1988 Act in which members have been disciplined in this way;

(e) believes, none the less, that it is a fundamental human right of every trade union member to be able to refuse to break his contract of employment - even if called upon to do so by his trade union, and no matter what procedures have been followed before making such a call - and that such a refusal cannot be characterised as being improper in any way;

(f) maintains, accordingly, that the law of the land should provide a remedy for union members who suffer penalties, or discrimination, imposed on them by their union because of their exercise of this right, or their encouragement of others to exercise it;

(g) argues that to allow a union to be able to impose a disciplinary penalty on an individual member for deciding to honour his commitments to his employer, without providing a remedy for the member if he sought it, would amount to a failure of the law of the land to secure the member's fundamental human right; and, accordingly "

(h) sees no grounds for believing that the provisions of section 3 of the 1988 Employment Act are, in fact, incompatible with any guarantee afforded by the Convention.

2. Indemnification of union members and officials

The United Kingdom Government:

(a) welcomes the Experts' recognition that nothing in the provisions of section 8 prevents a union adopting any particular rule;

(b) notes that the Experts are now suggesting that section 8 of the 1990 Act should be "amended" rather than - as in its 1989 observation - "repealed":

(c) points out that section 8 only applies to fines or other financial penalties imposed on an individual for a criminal offence or contempt of court - conduct which is self-evidently in breach of the law of the land;

(d) points out that where an individual merely acts as a passive "agent" of a trade union, any penalty is likely to be imposed on the union but that where a penalty is imposed on an individual this would imply a clear finding of wilful and unlawful action by that individual;

(e) having regard to Article 8(1) of the Convention, in particular, cannot accept that provisions which declare unlawful the application of union funds or property to indemnify such individuals from the consequences of their own unlawful acts, and the consequential right of recovery of the money or property paid over, amount to a denial of any guarantee in the Convention and, accordingly"

(f) cannot agree that there is any need to amend the legislation as suggested by the Experts, since its present terms are not incompatible with any guarantee afforded by the Convention.

3. Immunities in respect of civil liability for strikes and other industrial action

The United Kingdom Government:

(a) sees no further argument in the Experts' observation which demonstrates that any change to present law is needed to ensure compatibility with the guarantees afforded by the Convention;

(b) points out that the United Kingdom law: (i) continues to provide special protection against civil law liability that would otherwise arise wherever a trade union, or any other person, calls on workers to break contract in contemplation or futherance of a trade dispute with their employer; and (ii) provides a wide-ranging definition of "trade dispute" for this purpose;

(c) observes that no change since 1979 to the law relating to the organisation of industrial action has, in any way, affected the position of workers - who remain free to choose to engage in industrial action, whether in relation to a trade dispute with their employer, or in support of other workers or of some other objective;

(d) cannot find in the provisions of Convention No. 87 any authority for the Experts' conclusion that the Convention requires that calling for, or otherwise organising, the particular forms of industrial action which it mentions ought to have legal protection;

(e) will certainly provide full details of the provisions of the 1990 Act, as appropriate for the purposes of the next article 22 report on the Convention and, accordingly "

(f) cannot accept that there is any need for further legislation concerning protection against civil liability for acts of calling for, or otherwise organising, industrial action on the grounds that this is necessary to ensure compliance with any guarantee afforded by the Convention.

4. Dismissals in connection with industrial action

The United Kingdom Government:

(a) points out that Convention No. 87 is concerned with protection of the freedom to form workers' and employers' organisations, and the rights of such organisations, but that the treatment of individual workers (including the matter of dismissal or disciplinary penalties being imposed by an employer) is a matter dealt with expressly in other Conventions - notably Convention No. 98 - and are, accordingly, unable to see how the law relating to such dismissals or discipline of individuals is covered by Convention No. 87;

(b) regrets that while the Experts' observation mentions certain points made in the United Kingdom Government's article 22 report, which demonstrate why legislation suggested by the Experts is unnecessary or inappropriate, none of those are itemised in the observation itself;

(c) wishes to place on the record the fact that the United Kingdom law and practice include the following features:

(i) it has always been the case that an employer is entitled to impose disciplinary penalties on workers who choose to take industrial action, including, for example, denying them payment to which they would have been entitled if they had worked during the period they in fact took such action - and there appears to be no basis in the provisions of Convention No. 87 to deny employers' freedom to respond in this way to industrial action;

(ii) United Kingdom law has never included the principle for which the Committee contends, namely that any employer should be prevented from dismissing or imposing a penalty on workers during industrial action; since the United Kingdom law on unfair dismissal was introduced in 1971 it has always contained an exception relating to dismissals during industrial action;

(iii) United Kingdom law does not permit workers to be ordered, in any circumstances, to return to or remain at work; this freedom to decide whether to take industrial action - which, by its nature, must always be an individual decision on the part of any employee - applies regardless of the nature or scale of the effect of that action on their employer's business (either in absolute terms, or in relation to the nature of the issues involved in the dispute);

(iv) moreover, where employees are taking part in official industrial action - that is to say, action which is called for, or otherwise organised, by their trade union - an employee who is discriminated against by being dismissed while other taking part in the action are not dismissed, can complain of unfair dismissal to an industrial tribunal, and the same is true if all employees are dismissed but some are offered re-engagement within three months while others are not;

(v) in addition, United Kingdom employment law provides special protection for any employee who takes strike action, by preserving any "qualifying period of employment" which the employee may have accumulated prior to taking such action - thereby protecting his or her future entitlement to many statutory employment rights (for example to redundancy pay), even though the employee has chosen to go on strike in breach of the terms of his employment contract;

(vi) while workers' terms and conditions may be established by collective agreements made between employers and trade unions, in the United Kingdom employees wholly free to decide to take industrial action without having to take into account potential consequences for their union in terms of its contractual obligations;

(vii) it has long been a fundamental principle of United Kingdom arrangements that courts or tribunals should not be asked to adjudicate on the merits of a particular industrial dispute - and there is nothing in the provisions of any Convention ratified by the United Kingdom which would require different arrangements to apply in this respect; and, accordingly "

(d) cannot accept that there is any justification for an argument that legislation along the lines suggested by the Experts is necessary to ensure that United Kingdom law is compatible with either: (i) guarantees afforded by Convention No. 87, or (ii) respect for "the principles of freedom of association", in so far as these are identifiable in the provisions of that Convention itself.

5. Complexity of the legislation

The United Kingdom Government:

(a) can confirm, as indicated in the 1988-90 article 22 report, that it is willing to bring forward a "consolidation" measure as and when resources and the legislative timetable permit;

(b) draws attention to the practical distinction which was identified in the 1988-90 article 22 report between a "consolidation" measure (which would bring together in one statute provisions which are at present to be found in a number of statutes), and a measure which would effect some substantive change to the law as it presently stands;

(c) reiterates that the government believes that nothing in United Kingdom general employment law is incompatible with any guarantee afforded by any ILO Convention ratified by the United Kingdom; and, accordingly "

(d) rejects the suggestion that there is any need to use the occasion of such a "consolidation" measure to include provisions which would effect substantive changes to the present law applying to industrial relations and trade union affairs.

In addition, a Government representative of the United Kingdom recalled that the experts' observation dealt with two separate issues, one concerning the dismissal of workers at the Government Communication Headquarters (GCHQ) and the second, a number of observations on Article 3 of the Convention in relation to a series of employment and trade union acts passed during the 1980s. Written comments on the second issue dealt with in the Committee of Experts' report had already been provided in the written information communicated by his Government. He expressed the hope that this response would be passed on to the experts for examination. In these circumstances he considered it most appropriate to defer discussion of these matters and to restrict the discussion to the subject of GCHQ.

Although under the ministerial responsibility of the Secretary of State for Foreign and Commonwealth Affairs, GCHQ was not part of the Foreign and Commonwealth Office, being in fact one of the United Kingdom Security and Intelligence Services and forming an integral part of the United Kingdom's organisation for defence and national security. It provided vital operational support to the armed forces of the United Kingdom and those of its allies, including a non-stop, continuous watch for any form of armed hostile activity. Between 1979 and 1981 GCHQ saw a series of severe disruptions through industrial action with the loss of 10,000 working days. These disruptions were not related to any grievance specific to GCHQ but its employees were used as part of a broader campaign within the context of a national civil service negotiation. Following this and after long and careful consideration of all the implications, including its international obligations under ILO Conventions, the Government changed in 1984 the terms and conditions of its employees at GCHQ. The main condition altered discontinuing the freedom of workers at GCHQ to belong to any trade union other than one based in that particular establishment. The Government's action was aimed solely at ensuring the continued performance of security operations at GCHQ, in the firm belief which many other Governments shared that it was unacceptable to have a top-secret intelligence establishment vulnerable to national strike action. Following the Government's decision, the overwhelming majority of employees at GCHQ, specifically 98 per cent of the workforce, accepted the new conditions of service. Nearly all of the remainder transferred voluntarily to other government posts where they could retain their national union membership, or opted for voluntary redundancy with the generous compensation normally paid in cases of redundancy in the United Kingdom. By the end of 1988 only 13 workers remained who could accept neither the new conditions of service, nor jobs in other parts of the government service, and all of these received either full redundancy payments or generous ex gratia compensation.

Various aspects of the British industrial relations system must first be understood to put the Government's action in context. In the first place, the British system of industrial relations was based on voluntarism and the voluntary nature of this system was valued by unions, employers and Government. Secondly, historically, all collectively bargained agreements had been voluntarily entered into and were not legally binding. They were therefore not legally enforceable and there were no legal sanctions if they were broken. Within this framework of freedom and voluntary, non-binding collective agreements, both private and public sector workers were free to organise and to strike. There were only three exceptions to this general situation, all of which were within the public sector. Firstly, within the armed forces, who had neither the freedom to organise nor the freedom to strike. Secondly, within the police force, who had the freedom to organise but not to strike, and lastly, within very limited categories of the civil service, where the Employment Protection Act of 1975 and the Consolidation Act of 1978 contained sections which allowed the Government to exclude certain employees from the provisions of the Acts for the purposes of safeguarding national security. These provisions had only been applied to the Intelligence Services and formed the legal basis of the Government's action at GCHQ in 1984. Beyond this, all civil servants, regardless of rank or function, had the same freedom to organise and to strike as employees in private industry.

The Government representative stated that the Government's action at GCHQ was taken on a unique and exceptional basis, in such a way to specifically preserve both the voluntary framework of the industrial relations system and the freedom to organise and strike enjoyed by all other civil servants. He underlined that, within the voluntary system of industrial relations, a no-strike agreement entered into voluntarily could not be sufficient to provide an absolute guarantee of the uninterrupted operation of GCHQ which was vital to the national security of the United Kingdom and many of its allies. It was for this reason that he considered that holding out any prospect of negotiation of a strike-free agreement as a solution would only serve to raise expectations which could not be fulfilled within the system of industrial relations of the United Kingdom, for any agreement reached could, quite properly, be repudiated by the unions at any time.

Although the Government had made it a condition of service that employees at GCHQ should not belong to national trade unions, workers there had the freedom to organise in the Government Communication Staff Federation (GCSF), a workplace-based union. GCSF had a membership of over 50 per cent of employees at GCHQ, which was about the same percentage that the national unions once represented in the same establishment. Apart from strike action, GCSF operated like a normal union, representing its members at GCHQ in all relevant matters, including negotiations over pay and conditions and issues of working environment. It was entered on the statutory lists of trade unions maintained by the Certification Officer, a national, legally constituted independent entity. The Certification Officer had stated that GCSF operated "in much the same way as many other small trade unions". GCSF had applied to the Certification Officer for a Certificate of Independence and although this had not been granted, the union had appealed against the decision. Whatever the outcome of the appeal it could not in any way detract either from GCSF's formal standing as a listed trade union or from its handling of day to day business or its ability to represent its members. GCFS was not in practice disadvantaged by reason of not holding a certificate of independence, because the management of GCHQ extended to it facilities which were at least the equivalent of the benefits which a union holding a certificate of independence would enjoy under the law.

The Government representative recalled that if the case had been brought under Convention No. 151, it would have been dismissed at an early stage because the provisions of Article 1, paragraph 2, of that Convention allowed Governments to determine, by means of public law and regulations, the extent to which the protection provided for in the Convention applied to public service employees engaged in duties of a highly confidential nature. This was precisely what the Government had done in the case of GCHQ. Convention No. 87 itself excepted from its provisions the armed forces and it was the Government's contention that the kind of national security functions carried out at GCHQ were in the spirit of that exemption. The speaker further wished to draw the attention of the Committee to the fact that the European Commission of Human Rights had also examined this case and had found that, although there had been an interference by a public authority in the workers' rights to form and join trade unions, this interference was justified, since GCHQ was a special institution whose purpose resembled that of the police and armed forces in fulfilling vital functions concerned with the protection of national security.

By means of summary, the Government representative stated that, as a large number of people had recognised, both on this Committee and elsewhere, the issue at stake was a technical problem of labelling and interpretation and not a case involving fundamental questions of human rights. If there was a breach, therefore, it was of a highly technical and not a fundamental nature, for the following reasons: GCHQ was part of the national security and intelligence services; under Convention No. 151 there would have been no breach; in many other countries the same activities would be carried out entirely within the military apparatus and would therefore be exempt even under Convention No. 87; out of all the workers involved, only thirteen eventually did not accept the revised conditions or alternative employment and they were given generous financial compensation; other international bodies concerned with fundamental human rights had ruled in the United Kingdom Government's favour; and lastly, workers at GCHQ had, in fact, access to an effective and indeed very active workplace trade union organisation.

The Government representative welcomed that, in its most recent report, the Committee of Experts had recognised a number of these issues and his Government welcomed these positive outcomes of dialogue with the experts. It was recognised by the Committee of Experts that the workers at GCHQ were in the category of those for whom it was permissible to curtail the freedom to strike. The Committee had also acknowledged that the workplace union, to which over 50 per cent of these workers belonged, was treated by management as a full-fledged union and it had accepted that while the Government did not object to trade union membership per se among these workers, it did have continuing objections to membership of certain unions. The speaker stated that the Committee of Experts' assessment was correct, but that he had recalled why, within the voluntary framework of British industrial relations, this remained the case if the interests of national security were to be maintained at GCHQ. He nevertheless stated that his Government would continue to look very carefully at the experts' comments and at those of this Committee and gave an assurance that he would report fully the views expressed by the present Committee. He expressed the conviction that his Government would continue to listen to and carefully consider ideas on the matter, not least in deference to the importance which it fully understood was attached to the matter by the supervisory organs of the ILO including all members of this Committee. In conclusion, the Government representative trusted that on the basis of his explanations the Committee would be able to undertake a balanced, informed discussion of this case, maintaining a due sense of proportion about the issues involved.

The spokesman for the Workers' members expressed the agreement of his group that the discussion be restricted to the case of workers at GCHQ. However, that the other points mentioned in the report of the Committee of Experts, on which the Government had supplied a certain amount of information, should be discussed in 1992. This could perhaps therefore be mentioned in the conclusions of this Committee. In any event the Government should be requested to supply a report sufficiently in advance so that it might be discussed next year.

The Worker member of the United States recalled, on behalf of the Workers' members, that the Committee had decided in 1990, by a small majority, not to mention the application of Convention No. 87 by the United Kingdom in a special paragraph of its report. The Committee of Experts had concluded, however, that the dismissal of 13 workers from Government Communications Headquarters (GCHQ) at Cheltenham, on account of their refusal to step down from membership of unions of their choice, constituted a violation of Article 2 of the Convention. More importantly, in its conclusions, the Committee had note that "the Government states that it remains unconvinced that to do so would serve any useful purpose" and had "urged the Government to reconsider its position in relation to the reopening of discussions with the public service unions...". In the plenary session the speaker had indicated that the workers' attempts to have a special paragraph adopted came to nothing because the employers and certain governments had not fully appreciated what was really at stake, namely not to slam the door on new negotiation with the unions. In his opinion, this was, and continued to be, the core of the problem.

After underlining that he did not intend to ask for a special paragraph, he expressed his concern over the inflexible position of the British Government in refusing to discuss with the unions. This was a key question which, if not resolved, prevented any further action. As indicated by the Committee of Experts, the TUC had informed the Prime Minister that the unions were prepared to adopt a positive approach to the GCHQ question, providing the discussions were reopened as suggested by the Experts and by this Committee. The Prime Minister did not respond to this proposal and the Government continued to declare its conviction in the futility of such discussions. The refusal on behalf of the United Kingdom to resume discussions with the unions threatened the very principles to which this Committee had firmly and consistently adhered for years. It was the only case in 25 years, where a government had refused dialogue with its social partners, despite Conventions Nos. 87 and 144, which the United Kingdom had also ratified. The speaker none the less thought he had detected a certain note of encouragement in the intervention of the Government representative, notably in his assurance that his Government would continue to look very carefully at the observations of the Committee of Experts and of this Committee.

After many years of difficult dialogue, this Committee had stressed, in one common voice in its 1989 report, the crucial importance of the principles consistently followed by the Committee of Experts, not only for maintaining the independence of the supervisory system, but also the universality of standards and the necessity of applying them with objectivity and impartiality. It also unanimously adopted that faithful adhesion to these principles was equally important to the Conference Committee in pursuance of its work. From this, it necessarily followed that equality in application and impartiality must extend to all countries, regardless of size, power, geographical location or political persuasion: the same yardstick must be applied. It had been insisted on numerous occasions in this Committee, particularly during the years of struggle with the East Bloc countries, that the Committee could not project two faces, one for the East and another for the West. It therefore followed that neither could this Committee project one face for the developing countries and quite another to a highly industrialised Western State. Could such a drastic departure from the principles of impartiality and objectivity be tolerated, in a particular case, by a Committee where there has consistently been unanimous respect for these very principles? This Committee had always been known as the conscience of the ILO. If at times its conclusions had been demanding with regard to governments, equal justice was always dispensed. Departure, in an individual case, from the perception that standards were being applied impartially wherever breaches occurred would result, in the Workers' view, in a severe loss of credibility for the Committee.

Throughout his involvement in the discussions of this case, the speaker had always been puzzled and distressed by the inflexible attitude of the Government, where the possibility of further discussions with the social partners on the case of workers at GCHQ was concerned. According to the report of the Committee of Experts, this was the third time, despite its repeated entreaties and those of this Committee, that the Government had stated that it would serve no useful purpose to reopen the dialogue. The inexorable position of the Government raised serious concern within this Committee as to the Government's motives. The Government should know that for as long as free men gathered and engaged in dialogue anything could happen, as was testified by the progress achieved, through the efforts of the Experts and of this Committee over the years, when governments had encountered seemingly insurmountable problems of compliance with ratified Conventions. Even if, in the eyes of the Government, it would take a miracle to resolve the problems of workers at GCHQ with the assistance of the British trade unions, miracles did happen, like the incredible emergence, in the past three years, of the countries of Eastern and Central Europe to freedom and democracy. By means of conclusion he appealed to the Government not to spurn the latest offer of the British trade unions to resume discussions. Their offer to take a constructive and positive approach in the renewed negotiations clearly indicated that they were not insensitive to the importance of security operations at GCHQ. The contribution of an essential tripartite partner should in no instance be belittled.

The Workers' member of the United Kingdom, speaking on behalf of his group, indicated that he would not be asking for a special paragraph on this case to be included in the Committee's report because the Workers took the view that to do so would result in a sterile technical discussion on the special paragraph procedure rather a real dialogue on the case itself. He had listened with interest to the information supplied by the Government representative and recalled that the case before them essentially concerned the dismissal of a number of principled trade unionists for their refusal to give up the right, enshrined in Convention No. 87, to join a trade union of their own choice. He recalled that this particular case was considered by some to have been blown out of proportion, but he stressed that the principles underlying the case were central to the work of this Committee, and to the supervisory functions of the ILO. The continued refusal by a government to listen to and take actions over the comments made by the Committee of Experts, as well as the conclusions which this Committee adopts, was bound to be seen universally as an affront to the work of the present Committee. It was for this reason that this case was of particular interest. While it remained unresolved, and so long as there was failure to achieve a dialogue leading to progress, it undermined the entire supervisory system. Most fundamentally, it raised the serious question as to whether two standards were in operation in the work of the Committee, according to whether it was a less developed country, which did not have a sophisticated civil service, or a highly developed country whose resources and influence were such that it could attempt to evade the views of the Committee of Experts and the conclusions of the present Committee. There should be neither exceptions nor special treatment made in this Committee, for this would undermine its authority.

The Workers' member acknowledged that the application of Convention No. 87 posed problems. In particular it raised questions concerning pluralism, concerning the right to strike and where the right to strike could be legitimately refused. It also raised questions of who was and was not a civil servant, and over the fine definition of which particular categories of people should be allowed exemption under this Convention. The Workers' member stressed his deep and abiding respect for the law and particularly for those laws which were enshrined in human rights Conventions, but declared an implicit distrust in those who tried to argue that the law had many faces in different situations. Human rights were indivisible and the same laws should apply to all countries, whether developed, developing, rich or poor.

Contrarily to the explanation of the Government representative, the speaker declared that the disruptions which took place in the civil service between 1979 and 1981 concerned issues affecting both GCHQ and the civil service as a whole, since the Government had taken away pay bargaining machinery which had operated effectively in the civil service for 25 years. In response to the allegation that the country was put at risk by these token strikes, he recalled that the trade unions had ensured a skeleton staff had been in operation, as was generally currently the case over weekends. It was, therefore, nonsense to suggest that the country's security was at stake.

The Workers' member endorsed the outline of collective bargaining machinery given by the Government representative, but underlined that this framework had been steadily destroyed by the present Government. He insisted that on countless occasions the workers had made it clear that they were prepared to do something exceptional in the case of GCHQ. Having recognised the problem as presented by the Committee of Experts and in seeking to resolve this situation, the British trade union movement was prepared to talk about the unique solution of a no-strike agreement with arbitration which would be isolated for that particular unit to meet the views of the Committee of Experts that workers whose functions related to security matters could legitimately have their right to strike curtailed. This was the price the trade union movement was willing to pay in order to contribute to solving this problem.

With respect to the Government Communication Staff Federation (GCSF) operating at GCHQ, the speaker recalled that the Certification Officer had refused to issue a Certificate of Independence. GCSF was effectively a company union, and the fact that people were allowed to join a company union did not mean that they were being allowed to join a union of their own choice. It was this very freedom which was in question, as in the case of one-party states where only one trade union existed. With reference to the findings of the European Commission on Human Rights, the speaker declared that these did not in any way override the opinion of the Committee of Experts which could only be challenged by the International Court of Justice.

The work of the Committee was characterised by the spirit of dialogue. The United Kingdom had ratified Convention No. 144 on Tripartite Consultations relating to the activities of the ILO. Over the last 12 months, the British trade unions had tried to avoid this becoming a focus of conflict at this year's Conference. Last May, the Secretary-General of the TUC wrote to the Prime Minister to attempt to persuade him to reopen the discussions as requested by the public service trade unions and in keeping with the conclusions of the Committee of Experts. Unfortunately, no positive response was received. At this point all the trade unions were asking was to enter into dialogue with the British Government to explore whether a solution along the lines suggested by the Committee of Experts was possible. They were not asking for assurances; all they wanted was to be able to discuss. This request could not be considered unreasonable. For this reason the Worker member launched an appeal for the Committee to encourage the Government to take up dialogue with the trade unions. Refusal of such a simple demand would call into question the principle of dialogue which was at the very basis of the supervisory process. The Government's reply should be examined by the Committee of Experts and discussed by this Committee in 1992.

The Employers' members expressed agreement that the discussion be restricted to the single case of workers at GCHQ. Consequently, they considered that the conclusions should not mention that the other points would be examined next year by the Committee, as requested by the Worker members. This was the fifth time since 1985 that the workers at GCHQ were being discussed. The facts were clear and nothing new had emerged. The case was actually not typical of Convention No. 87, insofar as the activities carried out at GCHQ were very close to those of the armed forces. If the personnel of GCHQ had been transferred to the military sector everything would be resolved, however, this was not the case. The Government's actions were taken following strikes and working interruptions at GCHQ. The Government had demanded that the workers leave their union, which, with the exception of 13 workers, they did. Later discussions over the possible conclusion of a no-strike agreement had failed. Various misgiving, notably concerning the voluntary nature of collective agreements, also played a role in this. It remained to be seen whether the GCSF, with its membership of 50 per cent of employees, was a bona fide union. At any rate, the crucial point was that, for some time, workers at GCHQ has not had the possibility of forming or joining a union of their choice. From the legal point of view the situation was clear, as described by the Worker member of the United Kingdom. As in the past, the Employers' members firmly opposed the application of double standards. This case was, however, very different from those of the ex-Communist States, whose Constitutions prevented the forming of free unions outside of the established single party union. In the case of the workers at GCHQ the difficulties are of a practical nature and many of the factors relating to the case were specific to the United Kingdom. In the first instance, the Government and the trade unions did not have much mutual sympathy. Both tended to become entrenched in their positions so that a total absence of dialogue arose and this was the major problem. For this reason a new impetus was needed for both parties to resume contact and discuss the situation. This was a question of limited bearing which in no way threatened trade union rights throughout the United Kingdom. Only the workers at GCHQ were involved. Even if only 13 workers had wished to make use of their right to freely choose a union, it was the duty of this Committee to ensure that their freedom of choice was guaranteed. Workers must have the right to freely join the trade union of their choice regardless of the number of people involved. For this reason the Employers' members, like the Workers' members, expressed the wish that the Government would be persuaded to reopen dialogue. A guarantee, on behalf of the unions, that the activities of GCHQ would not be disturbed by working interruptions was also expected. The practical aspects of a resolution on this question must be decided by the parties involved in the United Kingdom and consequently the Employers' members did not have any precise suggestions on the matter. In conclusion, the Employers' members expressed the hope that the Government would renew its dialogue with the unions, that it would supply information to be examined by the Committee of Experts at its next session, and that, next year, this Committee could note substantial progress in this area, such as the renewal of dialogue if not a solution.

A Workers' member of Sweden, also speaking on behalf of the Workers' members from Denmark, Finland and Norway, stated that the freedom of choice in establishing and joining organisations, as provided for in Convention No. 87, was one of the foundations of freedom of association. The Committee of Experts, as well as this Committee had stated that GCHQ workers should not be denied the right to belong to organisations of their own choosing. ILO supervisory bodies had repeatedly urged the British Government to reopen discussions with the public service unions in order to arrive at a satisfactory resolution to the problem. The trade unions had indicated their willingness to enter into constructive discussions with the Government. The Government, however, had refused to accept the conclusions of the Committee of Experts and had even refused to meet with the unions. They regretted that the United Kingdom Government has neither accepted the views expressed by the Committee of Experts nor made use of the established procedure for obtaining a definitive interpretation of the Convention. Moreover, they were surprised that the Government had not chosen to renew discussions with the trade unions concerned. Regardless of the different political opinions of the parties concerned, the principle of discussions or negotiation with social parties was respected in most developed countries. This case could not be resolved through endless discussion in an international forum. The solution to this problem could only be found through discussions between the Government and the trade unions concerned. They expressed hope that this dialogue would be reopened and that this case could be listed among the cases of progress in next year's report of the Committee of Experts.

A Workers' member of Poland stated that the Committee was once again dealing with the problems of the application of Convention No. 87 by the United Kingdom. He expressed concern that most of the incompatibilities between the British legislation and the Convention, as identified by the Committee of Experts, still remained. Furthermore, he regretted the persistent and continuous nature of these incompatibilities. These issues had been discussed by the ILO's supervisory bodies for many years, but yet there had been no substantial improvement in the situation. He supported the appeal made by the Committee of Experts for a resumption of the dialogue between all social partners involved. This invitation to reopen the dialogue should also be extended to cover all the isues relevant to the tripartite relationship in the United Kingdom. The British Government should use the tripartite consultation mechanism available in the interest of a consensual social process to comply with the provisions of Convention No. 144 which had been ratified by the United Kingdom. The GCHQ case concerned the lack of will on the part of the Government to fully recognise the right of GCHQ workers to organise and to bargain collectively. However, the lack of clarity of British legislation as concerned trade union rights was also a problem. The Committee of Experts had also commented on the complexity of the employment legislation in the United Kingdom. According to the Experts, the variety of legislative texts involved created a serious obstacle to a proper interpretation as to the application of ILO standards by domestic law. According to the Committee of Experts' report, the Government had attached to its report a number of booklets on the legislation to demonstrate that the law was, in fact, relatively intelligible to those whom it most directly affected. In reality, however, even qualified lawyers could not interpret this complicated set of rules. In the judgements given by the Court of Appeals and the House of Lords, acting as the Supreme Court, in the case of Merkur Island Shipping Corp v. Laughton, the employment legislation then in force was criticised for its lack of clarity which was considered to be in violation of the general principle of the rule of law. Both courts found that, particularly in the field of industrial relations, the law should be expressed in terms that could be easily understood by those who had to apply it, even at the shop-floor level. Absence of clarity encouraged those who wished to undermine the rule of law. For these reasons, the speaker requested that the Government be urged to take a more consultative approach with the social partners in order to bring British law and practice into line with all freedom of association standards.

A Government member of the Netherlands indicated that his Government considered that the GCHQ case concerned more than merely a technical question, but also affected fundamental workers' rights. Two years ago, his Government had voted against the adoption of a special paragraph not because the case was not important, but rather out of respect for the supervisory system of the ILO and in the belief that certain sanctions should be reserved for extremely serious human rights violations. His Government still believed that this was an important issue and hoped that it would be resolved properly within the ILO supervisory system. He had understood from the Workers' members' statements that they would not ask for a special paragraph. He recommended that the United Kingdom Government be urged to carefully consider the discussion held in this Committee in a constructive spirit and in a spirit of consensus.

A Workers' member of Colombia stated that he had been following this discussion with great attention and could not accept that two separate positions be taken for the same case. Each case was unique and it was clear that the partial or total breach of a Convention was a matter with political consequences. Under no circumstances should the Committee accept that the violation of a Convention in an underdeveloped country, or a country which was economically submissive, was a serious crime, while the violation of a Convention in an economically developed country be considered as merely a technical difficulty. It would be very dangerous to engage in such a discrimination which could cause the Committee to lose its credibility.

The Workers' member of Sri Lanka stated that the United Kingdom is renowned as the citadel of democracy. As the founder and Head of the Commonwealth it is regarded as a model for emulation by members of the Commonwealth and their peoples. Sri Lanka, as also other Commonwealth nations, has been inspired and influenced by British democratic traditions and practices and has fashioned its own institutions and practices on the British model. It is, therefore, regretted that the denial of the freedom of association to workers in the United Kingdom has not helped to sustain this image. The United Kingdom had ratified one of the most important ILO Conventions and was now flagrantly violating one of its principles: the fundamental right for workers to choose their own organisations freely. The Government representative of the United Kingdom did not even seem willing to enter into a dialogue with the social partners to resolve this question. The Government's argument that the GCHQ was a sensitive establishment and that, therefore, strikes would be detrimental to its proper functioning appeared to be invalid as the unions were prepared to discuss the possibility of a "no-strike agreement". He concluded by requesting the Government to enter into meaningful dialogue with the trade unions, without any preconditions, but with the simple aim to resolve this situation.

The Government member of Australia applauded the constructive basis on which the contributions from the Workers, Employers and Governments had been made. He noted that the GCHQ case clearly reflected special circumstances of a complex and sensitive nature. The case touched upon security interests of the British Government but also raised important issues concerning the rights of workers to organise and associate freely. His Government considered, as it stated in this Committee in 1989, that the circumstances in the GCHQ case might constitute a breach of Convention No. 87 and it supported the conclusions and proposals of the Committee of Experts aimed at securing a resolution of the case. This case was first considered by the Experts in 1985 and there has been no real progress since that time. He expressed his Government's regret that the United Kingdom Government had not taken any specific action to address the issues raised by the Committee of Experts. He hoped that he had been correct in detecting a preparedness on the part of the Government to take a more constructive approach in the future. Nevertheless, the current approach was, to say the least, extremely disappointing and could only serve to undermine the effectiveness of the ILO's supervisory machinery. The Committee of Experts had reiterated their view in this case that the right to strike might be curtailed where the workers concerned carried out functions which related to security matters, but added that these workers should not be denied the right to belong to the organisation of their own choosing. These comments provided a framework within which this case could be resolved. It would be necessary, however, for the United Kingdom Government to consult with the Trades Union Congress and relevant trade unions to review the status of GCHQ workers. Six years had passed since the Government had held formal discussions with the unions concerning this issue. According to the Committee of Experts, the Trades Union Congress and relevant trade unions had indicated that they were prepared to negotiate constructively with the Government about the GCHQ situation, thereby offering a real prospect that the various issues in this case could finally be resolved. He suggested that the Government be urged to take positive steps to secure a settlement in this case which would be consistent with the provisions of Convention No. 87 and which would reflect the conclusions of the Committee of Experts.

A Workers' member of the Netherlands regretted the unwillingness of the Government to enter into dialogue with the trade unions and associated himself with the previous speakers on this point. He further noted that the GCHQ workers were allowed to join the Government Communications Staff Federation (GCSF) which, in the Government's opinion, could not necessarily be considered not to be a trade union. The Government thus apparently maintained that the GCHQ workers did have the right to organise. At the same time, the Government referred to Article 9 of the Convention concerning the "armed forces" exception. They agreed with the Committee of Experts' conclusions that the government did not seem to object to trade union membership per se for the GCHQ workers, but rather that it had continuing objections to membership of certain unions. He expressed deep concern that, if the Committee accepted the present deadlock, this would be viewed as an invitation to other governments to adopt the United Kingdom government's attitude. With reference to the Employers' members' statement concerning double standards, he recalled that the debate on double standards concerned the position of the Eastern European countries and several developing countries and that each country should be judged according to its economic, cultural, social and political particularities. This case concerned basic principles and was not merely a technical matter. The Government had not accepted the conclusions either of the Committee of Experts or of this Committee. This was the type of case which was addressed in paragraph 12 of the Committee of Experts' report. The only honourable approach in a case of such importance, where there is a difference of opinion, would be for the government to go to the International Court of Justice for a final opinion. The Government's statement that conclusions reached in another international forum which had accepted the Government's position seemed to be all the more reason for requesting the International Court of Justice for a final determination. He concluded by recommending that the Government be urged to resume the dialogue with the trade unions.

A Workers' member of Tunisia recalled that democracy, well known in the United Kingdom, was also defined by cooperation, consultation and dialogue. The Government had, however, refused to enter into dialogue with the trade unions, while maintaining its decision to arbitrarily dismiss 13 GCHQ workers. He did not understand, therefore, how the Government could preach and defend the principles of liberty, democracy and social justice to the developing countries, and moreover, how it could defend the principles of the ILO to which it was supposedly attached. The speaker concluded by supporting those speakers who had requested that this case be mentioned in a special paragraph.

The Government member of Norway, also speaking on behalf of all five Nordic Governments, stated that, while recognising the technical issues involved, this case concerning the right to organise in unions freely chosen was fundamentally a human rights case. The speaker indicated that in her country had a strong tradition in respect of the right to organise which included military personnel and police. The right to industrial action in her country was, however, restricted in respect of military personnel and police. This type of distinction could perhaps also be made in the United Kingdom. She regretted that there had been no discussions between the United Kingdom Government and the trade unions since 1989 and urged the Government to take the initiative to establish contacts as soon as practically possible in order to make progress in resolving this conflict. She indicated her comprehension for the problem of double standards in this case, but expressed the hope that this case could be resolved with a consensus conclusion. She urged the Government to seriously consider the discussions held in this Committee and the conclusions which would be drawn with a view towards finding a constructive solution to a problem which had taken up too much time of the Committee for too many years.

A Workers' member of Spain pointed out that this was a very important moment in the work of the Committee. The Committee of Experts had noted that the workers concerned could not be considered to be "armed forces". From this affirmation, it would be impossible to deny them the right to associate, but the Government required that they associate to one specific trade union, which was not necessarily the one chosen by the workers. It was necessary to ask why the Government had chosen a trade union which could be different from one chosen by the workers. There must be other reasons which were not purely formal in this case where formality was a way of hiding the real issue. It seemed more and more clear that the reason for which these workers could only associate with the GCSF was because it was not an independent trade union organisation and it did not call strikes. Calling strikes was the initial cause of this problem. This case was also important as it dealt with the United Kingdom, a developed country and member of the European Economic Community (EEC). At the beginning of the meeting of this Committee, all the delegates praised the Committee's objectivity, but this objectivity was brought into question when the Committee was dealing with the case of a developed country. This could have the effect of raising doubts so to the functioning of the supervisory machinery.

A Government member of Panama noted that there were two important aspects in this case: a technical aspect and a fundamental aspect concerning the violation of Convention No. 87 by the United Kingdom. He was concerned that the Workers' and Employers' members of the United Kingdom had insisted on not mentioning this case in a special paragraph, despite the fact that the Government had made no progress in the last six years and that in 1989 there had been a vote for a special paragraph. The speaker called the Committee's attention to the fact that Panama, a small country in the middle of a democratic transition which had made enormous efforts to provide reports on of economic sanctions and an interactions, ratified Conventions in order to satisfy the requests of this Committee, but was subjected to a special paragraph for mereby observing that the Committee of Experts had tried to impose terms which were not clearly defined in the Convention and to impose its interpretation of Conventions and for not having followed certain rules concerning freedom of association. The speaker pointed out that the United Kingdom, one of the founding countries of the ILO and a highly developed country should resolve the situation as soon as possible by means of constructive dialogue and should not adopt an intransigent attitude in this regard. He reiterated that there were incongruencies in the procedure followed by this Committee in this case because there had been no progress since there had been a request for a special paragraph in 1988.

A Workers' member of Venezuela stated that in previous discussions on other cases before the Committee, a very precise attitude was adopted concerning countries which were in violation of various international labour standards. He asked whether this Committee would support the Committee of Experts which had studied this case since 1985. The Experts were concerned about the right of certain workers to join trade unions. He also asked whether the question of a special paragraph was only valid for the African, Latin American or Asian countries. If this was the case was if fair to have such different approaches? The speaker pointed out that this case had been discussed since 1985 with regard to 13 workers who had been dismissed, and also with regard to the negative attitude of the Government to resume a dialogue and to arrive at an agreement on the issue. In this Committee, the Government representative of the United Kingdom had closed the doors on dialogue. He trusted that the Government would arrive at an agreement and, if no agreement was arrived at, it could be considered that this Committee took a different attitude to the founding, industrialised countries than other countries. He pointed out that the same measures should be applied to all countries and a consistent line of conduct should be maintained. He indicated his solidarity with the United Kingdom workers and their right to freedom of association and the right to strike.

The Workers' member of Uganda stated that the Government's argument that a trade union in the GCHQ would threaten the security of the country was ill-founded because, to the contrary, the security of any country depended upon the respect of the fundamental human rights of all citizens. Furthermore, it was not trade unions which caused conflicts, but rather the violation of rights. They stated that there would never have been a problem if the Government had been discussing the issues in question with the trade unions in its country and recommended, therefore, that the Government reconsider its position and enter into dialogue with the social partners concerned.

A Government representative of the United Arab Emirates, also speaking on behalf of Bahrain, Saudi Arabia, Kuwait and Qatar, noted that this case dated back to 1985. He also noted the specific circumstances of the status of GCHQ workers, as well as the apprehensions and doubts expressed by the United Kingdom Government that some trade unions might not be committed to an agreement which included a provision not to have a right to strike. It seemed that, for this reason, the Government was not in a position to pursue negotiations for fear that some conflicts might arise in the future. The Government had clearly confirmed that the GCHQ workers had the right to join the GCSF and that 50 per cent of the workers had already done so. In spite of the problems referred to by the trade unions in this respect, the Government indicated that the trade union has powers at least equivalent to other trade unions. The two parties should be able to overcome and correct these difficulties. The Committee of Experts clearly referred to the fact that workers engaged in work involving national security may be refused the right to strike but they should have the right to organise in a trade union of their own choosing. This should allow them to find on a formula whereby these workers would accept the restrictions on the right to strike while being permitted to join the trade union of their own choice, in conformity with the provisions of the Convention. Therefore, in the same context as the statements made by the Government members of the Netherlands and of Australia, and taking into account that the Committee of Experts had indicated that the Government was not opposed to this position, the speaker noted that there was room for negotiation to arrive at an agreement ensuring the interest of both parties. He expressed the hope, therefore, that an agreement resolving this case would be reached. He also hoped, as was stressed by the Government representative of the United Kingdom, that the dialogue with the Committee of Experts and with this Committee would, in the light of the comments made by the Workers' and Employers' members in this Committee, continue. The speaker noted with pleasure that this case would not be sanctioned with a special paragraph, but rather that this question would be resolved by dialogue.

A Workers' member of Pakistan indicated the value which he placed upon the tradition of democracy in the United Kingdom, but pointed out that the Committee had always maintained universal criteria in the application of standards, in particular the standards concerning freedom of association. There could not be a difference in the application of these standards between developing countries and developed countries. The ILO supervisory machinery and its observations must be respected by everyone. He pointed out that for the last 50 years public servants in the United Kingdom have had the right to join the organisation of their choosing and have had the right to bargain collectively for the last 25 years. This case dealt with the issue of certain public servants who had to join an organisation which was not necessarily of their choosing, which was not in conformity with Article 2 of the Convention. He noted the Committee of Experts' comment concerning the complexity of the British labour legislation, in particular the Employment Act of 1990, which appeared to narrow the scope of protection in respect of freedom of association which the Committee had already determined to be inadequate. Furthermore, the Experts had considered that the GCHQ workers could not be considered as workers in the "armed forces" under Article 9 of the Convention and they therefore had the right to organise freely. The Experts had expressed concern that this case had not progressed in recent years despite the positive attitude demonstrated by the TUC to continue the dialogue. The speaker recalled that the United Kingdom was one of the founding members of the ILO, a country of industrial importance, and a member of the Governing Body and should set an example and bring its law and practice into conformity with the Convention. Finally, he highlighted that various Governments, the Workers' members, the Employers' members and various experts in international law who had urged the Government to resume the dialogue. He called for the Government to open a constructive dialogue.

The Workers' member of Germany referred to the Government representative's statement concerning the uniqueness of the common-law system and the system of industrial relations in his country and recalled that in the past this Committee had witnessed several similar controversial discussions where government representatives had defended their position on the basis of the uniqueness of their situation in one way or another. Nevertheless, the United Kingdom was responsible for bringing its law and practice into conformity with the Convention. If the Government could not ensure conformity, then its only option would be to request a ruling in the International Court of Justice.

The Government member of the United States stated that in past discussions on this case the Committee had disagreed on the ways of resolving it and this had resulted in a loss of the moral power behind the Committee's conclusions. She noted the special nature of the case and the unique and compelling concerns of national security which required that GCHQ operate at all times. However, she stressed that no problem can be solved without talking. She noted that dialogue does not presuppose achieving agreement, as the Committee of Experts had acknowledged in asking the Government to reopen discussions with a view to determining whether it might be possible to arrive at satisfactory arrangements. Dialogue was not a one-way street, nor did it necessarily mean a rapid solution. Nevertheless, she stressed, the undertaking was worth the effort. The strength and the moral authority of this Committee were derived from the fact that it operated on the basis of dialogue and consensus. She noted the commitment of all members of this Committee to ensuring that the effectiveness of the ILO supervisory machinery was not diluted. She hoped, and indeed was encouraged, that a consensus solution could be achieved in the GCHQ case.

The Employers' members noted that after the lengthy and substantive debate on this case there was much agreement in the present Committee on a decisive point: the dialogue between the Government and trade union should be resumed. The fact that there were no differences of opinion showed that this debate was significantly different from other debates held on the same case in the past. They asked the Government representative to submit this message to his Government and hoped that they would see results later on. Noting that a number of speakers went into detail on the other questions concerning the United Kingdom's application of the Convention, which were not under discussion at present, the Employers' members wished to point out that they had their own position and reserved the right to express that position at the proper point in time; indeed, on several issues they held quite different views to those expressed by the Experts, and not only on the question of the right to strike.

The Workers' members welcomed the content and the form of today's discussion. It appeared clearly that the GCHQ question was not only a technical problem, but was a case of principle: the freedom of workers to organise in a trade union organisation of their own choice. The Workers' members had already explained why they would not request a special paragraph this year. There were no double standards being applied; their position was rather to apply maximum pressure to arrive at genuine consensus on the most urgent problem, namely, the lack of dialogue and the need to resolve this and to search for a solution together with the trade unions. The Workers' members had achieved large and unanimous support on this point, and they thanked all the speakers, especially the Government members, If the Workers had requested a special paragraph as had been the case in 1989, the discussion might have been quite different, both on the nature of the problem and the meaning of special paragraphs. In a constructive spirit, as had been shown by the TUC, the Workers' members had wanted to stress the movement that had to be made towards reopening dialogue, in particular because the Government had ratified Conventions Nos. 87 and 144. They noted the statement of the Government representative that his Government was willing to examine the Committee of Experts' views and those expressed by the present Committee, in particular on the need to resume dialogue. This Committee therefore should formulate strong conclusions, expressing regret and formally calling for the Government to reconsider its position and to re-establish shortly dialogue between itself and the trade unions. The Workers hoped that within some months it would be possible to note genuine and substantial progress.

The Government representative had listened with great interest to this discussion and to the points raised by Governments and by Employers' and Workers' members. In reply to a number of speakers who had suggested that the crux of whether this case was a fundamental or technical one rested on the issue of the workers' right to join a union of their choice, he believed that it was a technical issue precisely because the relevant ILO Conventions allowed exclusions from this right for certain categories of workers. He was happy, however, to hear many speakers emphasise that this case was not related to any problem in the general procedures for freedom of association in his country, particularly in the public sector, and that no doubts existed about the general right to organise and to strike in the British civil service. Referring to the Workers' comment that GCHQ unions, by going on strike in the early 1980s, had not been putting the country "at risk", he explained that, he had not meant to imply this, but had rather meant that in the increasingly technologically sophisticated world of intelligence, his Government had felt that any "risk" of disruption of a central intelligence agency was unacceptable. Also in reply to Workers' speakers who had argued that the present Committee's censure should be spread evenly across countries and not confined to developing countries only, he agreed that the essence of ILO standards was their universality; but surely that did not mean that there should be censure by a system of regional rotation. What was meant was rather that this Committee should reserve its strongest censure for the worse cases of abuse, wherever they occurred. He stressed that the breach of the Convention - if there was any - was of a purely technical kind; no one had been murdered, tortured, raped or jailed without trial and there was no general limitation on the freedom to organise or strike in the public sector. The constraints on these freedoms were limited to intelligence workers who, in most other countries, were defined in such a way as to be exempted from the Convention. To suggest that there was any parallel between this and such other cases was precisely to adopt double standards and undermine universality. On earlier statements pointing to an apparent lack of dialogue between the Government and the unions. He explained that, his Government had, in fact, held repeated negotiations with the national unions when it first took the decision to change the terms and conditions of employees at GCHQ. At that time, national unions had urged that a no-disruption agreement would provide adequate safeguards. However, their proposals had been of a limited nature, leaving large areas to be determined through subsequent negotiations, with later disagreement of unions about the offer. His Government recognised that the unions had indicated on several occasions (including recent letters mentioned by the Workers' members) that they would change their position on the question of a no-strike agreement. Given the sensitivity of this issue in the domestic context, given the strongly felt opinions on both sides and the overriding need to ensure the smooth operations of GCHQ, his Government had been unwilling to make any purely cosmetic gesture which would run the resk of being over-interpreted or raise expectation which could not be fulfilled. He stressed, nevertheless, that the Government would be made fully aware of all the points raised in the present Committee and would have due regard to them in its reply to the above-mentioned letters, which he was sure would be made in due course following the simple acknowledgement of receipt which had already been sent. His Government would also continue to look very carefully at the comment of the Committee of Experts.