Informe provisional - Informe núm. 304, Junio 1996

1. 474. In a communication dated 3 October 1995 the Trades Union Congress (TUC) submitted a complaint of violations of trade union rights against the Government of the United Kingdom.
2. 475. The Government sent its observations on this case in a communication dated 4 March 1996.
3. 476. The United Kingdom has ratified 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 Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 477. In its communication of 3 October 1995, the TUC indicates that British law and practice continues to be incompatible with the obligations arising from the ratification of Convention No. 98, notably in respect of the lack of protection against discrimination at the time of recruitment and against anti-union discrimination in employment short of dismissal. In particular, the TUC refers to the alleged intimidation of trade union members at the Co-Steel plant in Sheerness, England, intended to bring about the derecognition of the TUC-affiliated trade unions, the Iron and Steel Trades Confederation (ISTC) (which was the majority union) and the Amalgamated Engineering and Electrical Union and the absence of any remedy in law.
2. 478. The TUC states that, in 1991, the Sheerness Steel Company became a wholly owned subsidiary of the Canadian company, Co-Steel, and soon after the Confederation received indications - including an attempt to downgrade a branch officer of the Confederation - that the management was not favourably disposed to negotiating with the union as the representative, freely chosen organization of its employees. In March 1992, the management put forward new contract arrangements to the employees which included a requirement that they should give up their trade union membership. The company also denied access to its premises to representatives of the unions where they had overwhelming representation. The ISTC responded by calling branch meetings asking Co-Steel employees whether they wanted their pay and conditions to continue to be determined by collective bargaining and whether they wanted the ISTC to represent them in negotiations about pay and conditions. Of the 442 people eligible to vote, 348 (78.74 per cent) opted for collective bargaining and representation of the ISTC.
3. 479. According to the TUC, the management then set about making it clear to the employees who refused to agree to the contract arrangements that they would be dismissed if they did not accept them in writing. Under the relentless pressure of this intimidation most employees did sign the contract put forward by the company. The company has refused since the end of March 1992 to respond to attempts by the ISTC to establish communication. The ISTC holds regular branch meetings covertly for fear of union members being dismissed by the company. The Co-Steel management is also forcing suppliers of labour to it to derecognize the union through threatening to withdraw contracts.
4. 480. The TUC also transmitted with its complaint a document presented by the Director of Industrial Relations in Sheerness which, according to the TUC, demonstrates the readiness of the company to dismiss employees who did not comply with its aim of changing the system of work organization and pay determination, and confirms its action in terminating the employment of 5 or 6 per cent of the workforce.
5. 481. The unions with TUC support held a rally in Sheerness on 2 September in support of the right to representation within the workplace, and the Co-Steel management made it clear to the workforce that any employee seen at the demonstration would be compromising his or her employment with Co-Steel.
6. 482. Finally, the TUC asserts that there is no remedy in British law for this form of anti-union discrimination nor defence against threats of dismissal and other forms of intimidation against employees, nor any protection of their right to have their pay and conditions of employment determined through collective bargaining in which their freely chosen union would represent them.

B. The Government's reply

1. 483. In its communication of 4 March 1996, the Government affirms that its general employment law is entirely consistent with the requirements of Convention No. 98. Workers in the UK enjoy a general freedom to organize and UK legislation has long protected all employees against discrimination by their employer on grounds of union membership. The Government maintains, however, that collective bargaining must be voluntary, agreed to by both the employer(s) and the union(s) concerned.
2. 484. As concerns the allegations in this specific case, the Government refers to detailed observations it has supplied in respect of similar complaints (Cases Nos. 1618 and 1730), as well as its reports on ratified Conventions.
3. 485. UK legislation provides wide-ranging and effective protection against discrimination in employment on grounds of union membership, including protection against dismissal on grounds relating to trade union membership. In summary, under section 146 of the Trade Union and Labour Relations (Consolidation) Act, 1992, an employee has the right not to have action short of dismissal taken against him or her to prevent him or her from being a union member. Action short of dismissal might cover the withholding of a pay increase, discrimination in promotion or threats of dismissal or redundancy. An employee who believes that his employer has acted unlawfully in this way may complain to an industrial tribunal and, if the complaint is upheld, the tribunal may make an order for reinstatement or re-engagement, or make an award of compensation.
4. 486. The change made by section 13 of the Trade Union Reform and Employment Rights Act, 1993, was to ensure that the law could not be used against employers who take reasonable action to further a change in their negotiating arrangements. The Government is of the opinion that these changes are consistent with the protection required by Article 1(2)(b) of Convention No. 98. Action taken by an employer to change negotiating arrangements with a trade union does not amount per se to action taken to deter workers from becoming, or prejudicing them for being, union members. The amendment sought to restate the law to make it clear that the right not to be discriminated against on trade union membership grounds did not include or imply a right to have one's terms and conditions negotiated by collective bargaining.
5. 487. The Government asserts that collective bargaining to agreed terms and conditions has long been a feature of UK industrial relations. Collective bargaining, however, is an option for an employer to enter into freely, in the light of their particular circumstances. Furthermore, section 13 of the 1993 Act, by allowing employers to offer incentives to employees in return for their consenting to any change in their relationship with the employer, ensures that employers have the necessary freedom to make changes to their bargaining arrangements which could establish or extend collective bargaining.
6. 488. The Government concludes that, in its opinion, there has been no breach of Convention No. 98 and that the complainant's claims are unfounded.

C. The Committee's conclusions

1. 489. The Committee notes that the allegations in this case refer to acts of anti-union discrimination and intimidation at the Co-Steel plant and the lack of remedy in British law for this form of discrimination and the absence of protection against threats of dismissal and other forms of intimidation used against employees.
2. 490. While the Committee notes the Government's statement that UK legislation provides wide-ranging and effective protection against discrimination in employment on grounds of union membership, it regrets that the Government has not supplied any information in reply to the specific allegations of anti-union discrimination and intimidation at the Co-Steel plant. In particular, the Committee notes the following allegations of anti-union acts on the part of the Co-Steel management alleged by the complainant: the management put forward new contract arrangements to the employees, including a requirement that they give up their trade union membership; the company has denied union representatives access to its premises; after 78.74 per cent of the Co-Steel employees eligible to vote opted for collective bargaining and representation by the Iron and Steel Trades Confederation (ISTC), the management threatened employees who did not accept the above-mentioned contract arrangements with dismissal; the company has refused to respond to attempts by the ISTC to establish communication since March 1992 and is threatening its suppliers of labour with withdrawal of their contracts if they do not derecognize the union; and workers have been warned by the management not to participate in a union demonstration.
3. 491. In the absence of a government reply on these allegations, the Committee must first recall that it has always been of the opinion that it cannot regard as satisfactory replies from governments which are confined to generalities where precise allegations have been made. More particularly, in cases in which precise allegations have been made concerning a de facto situation, the Committee cannot be satisfied with replies which simply refer to or recapitulate the applicable legal provisions. The purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward. (See First Report, para. 31.)
4. 492. In this respect, the Committee also recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government. The Committee notes the Government's indication that under section 146 of the Trade Union and Labour Relations (Consolidation) Act of 1992 an employee has the right not to have action short of dismissal taken against him or her to prevent him or her from being a union member and that an employee who believes that the employer has acted unlawfully in this way may complain to an industrial tribunal and, if the complaint is upheld, have the action remedied. Nevertheless, the Committee would recall that paragraph 33 of its procedures provides that, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.
5. 493. As concerns the anti-union acts allegedly committed by the management of Co-Steel, the Committee recalls that under Article 2(1) of Convention No. 98 "(w)orkers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration". The anti-union acts alleged by the complainant would clearly be of the sort to be considered as employer interference in the union's functioning and administration. Furthermore, as concerns the denial of access to the workplace, the Committee has considered that workers' representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 957 and the Workers' Representatives Recommendation, No. 143, Para. 12.) As concerns the management's refusal to respond to attempts by the ISTC to establish communications, the Committee points out that Paragraph 13 of the Workers' Representatives Recommendation provides that workers' representatives should be granted without undue delay access to the management of the undertaking and to management representatives empowered to take decisions, as may be necessary for the proper exercise of their functions.
6. 494. According to the Government's reply, there is a general remedy for anti-union acts taken by the employer under section 146 of the Consolidation Act. The Government adds, however, that section 13 of the Trade Union Reform and Employment Rights Act (TURER) of 1993 was adopted to ensure that the law could not be used against employers who take reasonable action to further a change in their negotiating arrangements. When considering section 13 in its conclusions in Case No. 1730, the Committee was of the opinion that such a provision could hardly be said to constitute a measure to "encourage and promote the full development and utilization of machinery for voluntary negotiation ... with a view to the regulation of terms and conditions of employment by means of collective agreements", as provided in Article 4 of Convention No. 98, and invited the Government to reconsider this amendment in consultation with the social partners. (See 294th Report, Case No. 1730, para. 202.) Furthermore, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations has indicated that the House of Lords judgement of 1995 in the Wilson and Palmer cases (Associated Newspapers Ltd. v. Wilson and Associated British Ports v. Palmer) has reinforced its apprehensions that the legislative protection to be afforded to workers against acts of anti-union discrimination by virtue of Article 1 of Convention No. 98 seems to be insufficient. (See ILC, Report III (Part 4A) of 1996.) As concerns the acts allegedly taken by the management of Co-Steel with a view to changing its contract arrangements with its employees, the Committee would recall that attempts by employers to persuade employees to withdraw authorizations given to a trade union could unduly influence the choice of workers and undermine the position of the trade union, thus making it more difficult to bargain collectively, which is contrary to the principle that collective bargaining should be promoted. (See Digest, op. cit., para. 766.)
7. 495. In the Government's opinion, section 13, by allowing employers to offer incentives to employees in return for their consenting to any change in their relationship with the employer, ensures that employers have the necessary freedom to make changes to their bargaining arrangements which could establish or extend collective bargaining. In the absence of any evidence to the contrary, the Committee is of the opinion that, based on the allegations in this specific case, the employer has used this freedom to unduly influence the choice of workers, including by means of threatened dismissal, and to undermine the position of the union, contrary to Article 2 of Convention No. 98. Furthermore, as concerns the obligation to promote collective bargaining under Article 4 of Convention No. 98, the Committee, like the Committee of Experts, considers that section 13 of the TURER is likely to result in a situation wherein collective bargaining is easily and effectively discouraged instead of being encouraged.
8. 496. The Committee would therefore again call on the Government to take steps to amend section 13 so that it ensures workers' organizations adequate protection from acts of interference on the part of the employer and does not result in the effective discouragement of collective bargaining. The Government is requested to keep the Committee informed in this regard.
9. 497. As concerns the specific allegations of anti-union tactics taken by the management of Co-Steel, the Committee requests the Government to take the necessary measures immediately to begin an inquiry into these allegations and to furnish the Committee with the findings so that it may have available the information necessary for its examination of the case. Furthermore, if the findings of the inquiry demonstrate that the company has carried out acts of anti-union discrimination, the Committee requests the Government to take suitable measures to remedy the effects of any such acts.